Tuesday, April 28, 2009

Arlen reveals himself!






Starting with war resistance, Iraq War resister Cliff Cornell faced a court-martial this afternoon at Fort Stewart in Georgia where he entered a guilty plea to desertion.

Today the Senate Foreign Relations Committee held a hearing on declaring war and the biggest concern appeared to be whether or not the creation of a joint-committee might usurp their own committee. While the turf war raged, Senator Russ Feingold appeared to be the only one who'd read the proposal in terms of how it might actually impact the issue of going to war.

Appearing before the committee as witnesses were BFFs James Baker and Lee Hamilton, packing enough 'bi-partisan' scandals between themselves to rock a Jackie Collins look at DC. The panel was rounded out by Warren Christopher whose service can be traced back to the LBJ years. Senator John Kerry chairs the committee and he called it to order and skipped any messy realities about the three to instead note that "they are here to discuss one of the most vital questions that comes before our democracy: The question of how America goes to war?"

Kerry noted that the reason for the hearing was the "fundamental tension in how America goes to war. The president is commander-in-chief of the Armed Forces while Congress has the power to declare war." Hamilton, Baker and Christopher sat on the National War Powers Commission. No, no election was held to elevate those three to a commission on such an important issue. No, their tinkering around with the law -- and, yes, with the Constitution, is not how things are supposed to be changed per the Constitution. But if DC didn't have cronyism, no one ever be seated for a meal at Marcel's. So three elderly men -- at 78, Lee Hamilton's the baby in the trio -- that few would trust with a bank deposit slip have been put in charge of recommending changes in war powers. As Phil Ochs once sang, "It's always the old to lead us to the war, always the young to fall" ("I Ain't Marching Anymore") and the LiverSpots Trio demonstrated that and then some.

If there was anything more distressing than the absence of senators -- this was a full committee hearing even though the full committee elected to skip it -- it was most likely the huge absence of the press. If changes are being made in how the United States goes to war shouldn't the press be present? Where were they? And while the Real Press was largely absent, where were the beggars of Panhandle Media? Possibly encamped on the White House lawn hoping to get a shot of Bo doing his business.

Their own business apparently did not include fact checking the chair. John Kerry declared in his opening remarks, "What is clear to all is that the 1973 War Powers Resolution has simply not functioned as intended?" Really? Is that what's going on? No, Congress has refused to do what the War Powers Resolution gives them the power to. Equally true is that some aspects have been skirted by presidents. Kerry's starting from a false premise and begging the panel to snow job him.

What Baker, Christopher and Hamilton are proposing is repealing the War Powers Act of 1973 and replacing it with something different. This would be a major change and, again, where was the press?

Baker noted in his opening remarks [PDF format warning, click here], "Two years ago, Chris [Warren Christopher] and I were approached by the Miller Center at the University of Virginia to co-chair an independent bi-partisan commission to consider an issue that has bedeviled legal experts and government officials since the Constitution was framed -- the question of how our nation makes a decision to go to war." If Baker is an example of those "experts" and "officials," no wonder they're "bedeviled." The Constitution is very clear that Congress, and only Congress, can declare war.

Warren Christopher followed and he gulped water throughout the hearing which appeared to be taxing him. A sure sign that he shouldn't have co-chaired the panel, let alone served on it. He tried to open with a joke but it flopped. Of Baker he declared, "Without going on about it, let me just say that it is a lot more fun working with Secretary Baker than working against him." Again, the joke flopped. He then almost immediately made a case for Kerry to bring down the gavel and end the hearing. Christopher was speaking of the tension between the executive and legislative branches [PDF format warning, click here] and the issue over declaring war when he stated, "Only a Constitutional amendment or decisive Supreme Court opinion will resolve the debate; neither is likely forthcoming anytime soon, and courts have turned down war powers cases filed by as many as 100 members of Congress." The response to that should be: "Well if only a Constitutional amendment or a Supreme Court verdict can decide the issue then why the hell are we listening to you?"

And that is the thing. What they're proposing resolves nothing. It does, however, weaken Congress' powers. On the plus side, as John Kerry pointed out, it's better to address this now than in the lead-up to a war, "While the nation's attention is not focused on this issue today and while the kleig lights and the hot breath of the media is not as intense here at this moment, everybody in this room and particularly at the table understand the implications and how important it is to be here now trying to figure out the best path through this rather than the middle of a crisis." We're going to zoom in on the most pertinent discussion which took place shortly after Senator Russ Feingold joined the hearing and as he began speaking.

Senator Russ Feingold: I'd like to use some of my time to make a statement and then ask a couple of questions. As we continue to grapple with the profound costs of rushing into a misguided war, it is essential that we review how Congress' War Powers have been weakened over the last few decades and how they can be restored. The war in Iraq has led to the deaths of thousands of Americans and the wounding of tens of thousands and will likely end up costing us a trillion dollars. What if we had had more open and honest debate before going to war? What if all the questions about the administration's assertions
had been fully and, to the extent appropriate, been publicly aired? So clearly any reforms of the War Powers Resolution must incorporate these lessons and foster more deliberations and more open and honest public dialogue before any decision to go to war.
I appreciate that attention is being drawn to this critically important issue which, of course, goes to the core of our Constitutional structure, its' a conversation that we need to continue to have. But I am concerned that the proposals made by the Baker - Christopher commission cede too much authority to the executive branch in the decision to go to war. Under the Constitution, Congress has the power "to declare war." It is not ambiguous in any way. The 1973 War Powers Resolution is an imperfect solution; however, it does retain Congress' critical role in this decision making process. The commission's proposal on the other hand would require Congress to pass a resolution of disapproval by a veto proof margin if it were unhappy with the president's decision to send our troops into hostilities. That means in effect that the president would need only one-third of the members plus one additional member of either house to continue a war that was started unilaterally by the president. Now that cannot be what the framers intended when they gave the Congress the power to declare war. Since the War Powers Resolution was enacted, several presidents have introduced troops into battle without obtaining the prior approval of the Congress. Campaigns in Grenada and Panama are a few examples. None of these cases involved eminent threats to the United States that justified the use of military force without the prior approval of Congress. A simple solution to this problem would be for the president to honor the Constitution and seek the prior approval of Congress in such scenarios in the future. And while the consultation required by the War Powers Resolution is far from perfect, I think it is preferable to the commission's proposal to establish a consultation committee. If this bill had been in place before the war in Iraq, President Bush could have begun the war after consulting with a gang of 12 members of Congress thereby depriving most of the senators in this room of the ability to participate in
those consultations as we did in the run up to the Iraq War. The decision to go to war is perhaps the most profound ever made by our government. Our Constitutional system rightly places this decision in the branch of government that most closely reflects the will of the people. History teaches that we must have the support of the American people if we are to successfully prosecute our military operations. The requirement of prior Congressional authorization helps to ensure that such public debate occurs and tempers the potential for rash judgment. Congress failed to live up to its responsibility with respect to the decision to go to war in Iraq. And we should be taking steps to ensure it does not make this mistake again. We should be restoring this Constitutional system not further undermining it. Mr Baker, part of the premise of the commission's finding, is that several presidents have refused to acknowledge the Constitutionality of the War Powers Resolution, I know that of course in practice, most do honor the Resolution. In your view, does the president's commander-in-chief authority give him the authority to ignore duly enacted statutes?

James Baker: Duly enacted statues? Not in -- not in my view. On the other hand, there have been -- you said most presidents, Senator Feingold, all presidents have refused to acknowledge the -- all presidents have questioned the Constitutionality of the War Powers Resolution.

Russ Feingold: Right.

James Baker: Both Democrat and Republican.

Russ Feingold: Right. I simply said several presidents.

James Baker: Right.

Russ Feingold: But most have honored the resolution in practice.

James Baker: Well that's really not quite accurate, sir. They send -- they file reports "in keeping with," the language is "in keeping with," but never has one president filed a report "pursuant to" the War Powers Resolution.

Russ Feingold: Well, nonetheless, I appreciate your answer to the basic question. It seems to me that much of the ambiguity you attribute to the War Powers Resolution would be resolved if future presidents simply abided by the Resolution -- that would help solve the ambiguity. Mr. Hamilton, before the Iraq War, every senator had the opportunity to at least review the intelligence assessments on Iraq -- particularly the October 2002 NIE. I concluded that there was insufficient evidence to justify the decision to go to war Under your bill, wouldn't the full Congress have even less access to the intelligence supporting the decision to go to war ? Wouldn't that intelligence be limited to the gang of members on the consultation committee?

Lee Hamilton: With the consultative committee, I think you expand the number of members that would be brought into the discussions involving the highest level of intelligence. In other words, you'd have more members involved under our proposal than you do now. Because you --

Russ Feingold: I was a relatively middle - junior member of the Foreign Relations Committee. I was not at that time a member of the Intelligence Committee. At some point I was afforded the opportunity to go down to a secure room and to hear directly from the CIA people whether they felt the same thing we were hearing publicly. And I got to tell you, their tone when they were trying to express these arguments the president was making was rather tepid and it gave me a feeling that something was wrong here. And I would apparently, under this scenario, not have been a part of that process. I'm not saying my role was critical but I did end up being one of the people who went to the floor immediately and said 'I'm not buying this al Qaeda connection, I'm not buying the notion that Saddam Hussein is likely or ready to attack the United States.' It appears that somehow somebody in my situation would not necessarily be able to be a part of that pre-military operation process. Mr. Hamilton?

Lee Hamilton: Well I think under the law today the president doesn't even have to consult with members of Congress before he takes you into war because the provisions in the War Powers Resolution are very vague with regard to consultation. We expand greatly the number of members who would be involved in that consultative process here.

Russ Feingold: It appeared though in this circumstance of Iraq that this was part of the consultative process. That our access to the people from the president's CIA was pursuant to a discussion that led to a vote of the full Senate --

Lee Hamilton: Well the ---

Russ Fiengold: how the process worked. All members -- well perhaps not all. But at least members of the Foreign Relations Committee were given the opportunity to participate in that kind of a set up --

Lee Hamilton: And the proposal that we're putting before you, members of Congress are required to vote on it.

John Kerry: Senator --

Lee Hamilton:You don't have that requirement under present law.

John Kerry: There is no requirement. under present law. What happened is we did it under the prerogatives of each of the committees because the committee chairs and ranking members understood that this was part of the responsibilities Nothing in here -- and we discussed this before you [Feingold] came here -- about this consultative component in fulfillment of the requirement that the president let us know what he's thinking about doing so that those Committees, that's why they're part of it. The Intelligence Committee, the Armed Services Committee, the Foreign Relations Committee, would then go about their normal business involving all of their members. I mean, but there's no statute that required that for you either.

Russ Feingold: I'd like to believe that, Mr Chairman, but it strikes me that this provides an opportunity, that the president doesn't currently have, to say, "Look. I went through this consultative process that's provided by this new statute so I have even less a need to go through a formal vote which, as we just talked about, most presidents have decided -- President [George H.W.] Bush on the first Gulf War, even though he may not have taken the view that he had to do it, he went ahead and did it. I think this creates a process that could end run the feeling on the part of a president that he needs to go through a process that would actually involve participation but I'm not saying that this doesn't literally require it --

James Baker: Senator --

Russ Feingold: Yes, Mr. Baker?

James Baker: We require a vote within 30 days so the president is going to be facing a vote of the Congress. If the vote is a resolution disapproval, that is going to very adverse impacts on the president's ability to

Russ Feingold: But in the case of Iraq of course [shrugs, throws up hands]

James Baker: Well that of course -- I mean

Russ Feingold: 30 days after wouldn't have been not too helpful.

James Baker: That's -- that's true. But the president -- both presidents went to the Congress to get approval and actually obtained approval. Back to . Back to the point you made about the c-- about the observance a statute duly enacted and whether a president can question it's Constitutionality. There's all -- there's always been the ability of presidents to question Constitutionality and in this area it has consistently been questioned by both Democratic and Republican presidents. Presidents have sent troops abroad, Mr. Feingold, 264 times -- during which period the Congress has declared war 5 times. So faced with the situation, we expressly -- I think before you arrived, we made it -- we had a dialogue here about the fact that we have expressly preserved the rights of Congress to make the argument that I think you are making and the right of the president to make the argument presidents have made since the War Powers Resolution was passed that the Constitution gives either (A) the Congress or (B) the president the authority. Expressly reserve those Constitutional arguments, put them to the side, they are not going to be solved in the absence of a Constitutional amendment or a Supreme Court opinion. So we don't prejudice either branch. What we're trying to do is find a workable solution here that will improve the relationship and the consultation that takes place between the president and Congress when the nation's going to war.

Russ Feingold: I respect the effort and I respect the intent and it may well work that way. My concern -- and I know my time's up, Mr. Chairman

John Kerry: No, take [more] time, no problem.

Russ Feingold: Is that I witnessed as a non-senator the excellent debate that was held on the floor of the United States Senate prior to the first Gulf War, I also was involved in the truncated and unfortunately weak debate prior to the Iraq War. But any process that could make a president feel that he somehow did not need to go through that process prior to such a major action would trouble me. So that's how I need to review this. Could this lead to that practical effect as opposed to the literal effort you have made to avoid such a consequence. These are my concerns.

James Baker: I don't think so. Let me just quickly answer. I don't believe so because the president has the power today. So we're not -- this effort -- I don't see this as giving the president something he doesn't have today.

Russ Feingold: Thank you, Mr. Chairman.

John Kerry: Thank you Senator Feingold. Those are important inquiries and I think worth examining the sort of Iraq experience in terms of the vote up front versus late.

Kerry entered the commission's entire report into the record at the start of the hearing and noted, at the end of the hearing, that the record would remain open for a week to include any additional responses from the panel.

Before Feingold joined the hearing, there were no strong objections from Democrats. In fact, Kerry and others accepted premises that they probably shouuldn't do without speaking to their constituents if they want to at least pretend to represent anyone other than the beltway. For example, there are many people (put my name on the list) who do not believe that pre-emptive war and pre-emtive attacks are illegal (and it is illegal by the doctrine of just wars) so it was really something to hear John Kerry, who damn well knows better, accept the committee's working premise that the president had the right to do those without Congressional authority. For those confused, international bodies say those actions are wrong. Who the hell were these three crooked thieves bouncing between commerce and politics to accept as legal things that are still open to debate?

That and eliminating Congressional authority for war -- currently written into the Constitution -- seemed the main purpose of the Baker-Christopher commission. Some might say, "Well the Court would rule against it if it's wrong!" The Supreme Court is going to decide that Congress shouldn't have surrendered a contested power? No. They've consistently refused to rule on this terrain and were Congress to adopt this craziness the Court would either ignore it or rule that Congress didn't have the power stripped from them, they voted to give it away. This is a very serious issue and Russ Feingold was the only one who appeared to grasp that.

Baker kept talking about "bi-partisanship" and he looked so oily throughout that only two words captured him: Titus Semple. You found yourself longing for Lane Bellamy to show up and explain what they did to out of control elephants in the circus. At one point, he sprayed himself with snake oil and did his best Eddie Haskell grin while declaring the problem was with two political parties, it was between branches of government.

"The problem" James Baker sees is in reality the checks and balances set up in the Constitution and if he has a problem with those maybe he should take his autum years to another damn country. This is not someone who doesn't know better, this is a mad elephant on a rampage, determined to trample everything in his path. As Lane says in Flamingo Road, "You know sheriff, we had an elephant in our carnival with a memory like that. He went after a keeper that he'd held a grudge against for almost 15 years. Had to be shot. You just wouldn't believe how much trouble it is to dispose of a dead elephant."

Richard Lugar's the ranking member. We'll quote in when he manages to finish a sentence as opposed to pretending to ask a question that's nothing but multiple half-sentences strung together for over six minutes. Somewhere in his tape reel of Libyia, the evening news, Ronald Reagan and more he declared "what all you people in Congress need to understand . . ." Who was he speaking to? Presumably every senator on the panel understood their duties. While Edward Kaufman is new (the only one persent who is), Kaufman's run Joe Biden's Senate office for decades. Somewhere around the six minute mark, Lugar finally came up for air.

Or as Warren Christopher put it in one of the panel's most honest responses, "Senator Lugar talked quite a lot". He then went into Section 4a of the statute (committee recomendation) and rushed to assure that "we certainly don't mean to pre-empt the jurisdiction of this committee or other committees." Kerry wanted to know about 3c and how it speaks of the consultation committee make up. Was it an ongoing committee? Baker said Congress could determine that. The back and forth was pointless.

Senator Edward Kaufman compared the War Powers Act to a game of ruby football, noting how it's "been kicked around" and he stated he would feel derelict in his duty if he didn't raise the issue of Declaration of War. Warren Christopher dismissed it as no longer used so nothing to worry about ("The Congress has decided apparently to go the route of authorization . . ."). Kaufman should have pursued that further but, in fairness to him, there was no support for it among his fellow senators (Feingold was not yet present) and the panel played dumb. Kaufman was right to raise the issue and just because Congress uses one tool today or even in the last few decades does not mean it surrenders another one for all time.

Slimy Jim Baker wanted to grin while telling Feingold he missed things discussed earlier. No, he didn't. It wasn't discussed. But he did miss out on Warren Christopher saying the proposals were to help the president "speak to all the members of Congress" and Lee Hamilton adding that 535 members of Congress is just too much and "presidents today do not know with whom to consult." Hamilton explained this would limit who the president spoke to in Congress to a small number which would then spread out the word and, as a result, no member of either house could "complain, 'I wasn't consulted'." Actually, they could. Their remarks were exactly what they would deny when Feingold pursued his line of questioning. They had already established that the committee would be the one to address it and that the members not on that committee would need to get info from the committee (Hamilton: "This provides a president with a focal point for consultation.")

On the Republican side, Bob Corker was the only Republican senator other than Richard Lugar. Corker actually had a few points to make and pointed out that the proposal really doesn't resolve any of the limitations with the War Powers Resolution. Baker agreed but said you'd need a Constitutional amendment or a Supreme Court decision for that. So can someone explain why the Congress should nullify the War Powers Resolution and put in its place something that resolves nothing (but limits Congress' power and scope)? Corker labeled the proposal nothing but a "sort of . . . code of conduct. . . . It's really not going to have the effect of law." Baker shot back, "Oh, it would have the effect of law." Pause. "I think." Corker also disputed some of the exceptions the proposals recommend such as "the safety of the troops." Corker said that out would be there in any action, allowing the president to overrule Congress, because once troops are deployed "the safety of our troops would always be an issue." Baker agreed. ("That's correct. I think that's correct.") This hearing should have had a ton of reporters present. If anything is changed, if the War Powers Resolution is trashed, it will have longterm effects. For the record, the War Powers Resolution? Covered by NPR, Pacifica and all three broadcast networks back in the day.

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