John Dean: Experts Say Congress Must Stop An Attack on Iran: Constitutionally Possible? Absolutely

[seafan]

Leading Experts Say Congress Must Stop An Attack on Iran: Is That Constitutionally Possible?

Absolutely - According to Experts on Both Sides of the Aisle

By John Dean
Friday, Feb. 09, 2007

In a February 5 OpEd in the Los Angeles Times, Leon Weiss and Larry Diamond explained that they were uncertain whether President Bush's recent tough talk toward Iran was bully pulpit bluster, meant solely to control Iran's dangerous actions, or if the President was again on the road to war. (Weiss is a senior science fellow at the Center for International Security at Cooperation at Stanford University; Diamond is a senior fellow at Stanford's Hoover Institution.)

Accordingly, Weiss and Diamond called on Congress to find out which is the case, and, if the President's intention is indeed warlike, to take preventive action so that the President does not launch a war in Iran - given his performance in Iraq. They suggest sending the President what is, in effect, a veto-proof measure -- by placing the measure in an appropriations bill - advising the President that "Congress will not support a U.S. military strike on that country" unless authorized by Congress. If Bush were to violate such a law, they urged, Congress should file a lawsuit against him, and begin impeachment proceedings.

James Fallows expressed a similar concern about the Administration's actions in Iran in his recent Atlantic Monthly column. "If we could trust the Administration's ability to judge America's rational self-interest, there would be no need to constrain its threatening gestures toward Iran," Fallows suggested. Such trust, however, has not proven to be merited. Nevertheless, Fallows concluded, even if the Bush Administration has warlike intentions with respect to Iran, Congress can do nothing other than "draw the line. It can say that war with Iran is anathema to the interests of the United States and contrary to the will of its elected representative."
These commentators have raised the question of whether Congress can, in fact, prevent a president from taking the nation to war. This was the subject of a recent Senate Judiciary Committee hearing chaired by Senator Russ Feingold, where he sought to explore "not what Congress should do, but what can Congress do."

While the hearing was focused on Iraq, and Congressional power in general, Senator Edward Kennedy (D-MA) specifically asked the panel of constitutional experts, during the questioning, about what legal restrictions might be placed on the president's going to war in Iran.
Because the constitutional experts submitted formal statements to the Committee, which are available online, and several of them are terrific briefs on the law and relevant history, I have linked those statements to their names. Rather than rely solely upon their own summaries of their positions, given during the hearing, I have instead cited from, and commented on, their prepared statements seeking to set forth the essence of their positions.

What is especially significant, in my eyes, is that the conclusion that Congress does indeed have power to significantly restrict the Administration in its plans for war, transcends politics: Even experts who have worked for Republican administrations have come to this conclusion.

.....

[seafan]

1. "Congress has that power; the only question is whether it will dare to use it."

More:

* * *

In sum, as I read both the general statements of these experts, and their specific answers to Senator Kennedy's question about Iran, everyone agrees that Congress has the power to prevent a president from going to war.

The only question that is doubtful, then, is whether the members of Congress actually have the will to do so. This, I suspect, is what James Fallows concluded, when he said that, at best, they might draw a line.

Of course, George W. Bush and Richard B. Cheney know this too, so they will do whatever they wish to do - and Congress may or may not catch up. But there is no real question as to whether Congress could legally stop Bush and Cheney from going to war in Iran without coming to Congress to fully explain what they are doing and why. Congress has that power; the only question is whether it will dare to use it.

It all really does come down to whether this Congress has THE WILL to stop * and Cheney.

And it's not a particularly comforting place to be.

[KoKo]

15. I become more doubtful about their "will" to stop this every day that passes.

I wonder if it isn't all about Election 2008 and how many hits can a Volunteer Army take...when most Americans are still out there spending, spending, spending.

Without an Economy in a VISIBLE tanking...they can all play their games as long as they want because only the Hard Right and Hard Left are really WATCHING what they do. Everyone else is just "living their life." :-(

[seafan]

16. Ya know, my gut feeling is that "we" are much further ahead of many of our Congresspeople

on the information curve.... that an excruciating amount of time passes before we see formative action come out of some of them. With all their connections and machinations in the House and Senate, backed up by office staff, yet still, it has taken what seems like forever for them to take any action against what * is doing, and when they do, it has been maddeningly timid.

I'm not convinced it is about 2008. We should have that, hands down, looking at what is happening.

Seems like it's because many Dems have been almost frozen by the staggering amount of criminal activity and corruption in this administration,... also, that many have ties to foreign lobby groups, specifically AIPAC, that have entirely too much influence in our government....

...and the intimidation by Bu$hCo, his henchmen, the nastiness of this mutant GOP, and the lobbyists' corrosive influence, that have beaten down the Democrats since the Gingrich years.



The only thing I see to do is just what we are doing.... pushing, pushing, pushing 24/7/365 on Congress to act, and act decisively in holding investigations into what this administration has done, and above all, to stop * from stampeding us into Iran, which, if we are unable to stop him, will forever change the life on this planet.

We don't have a lot of time to do that. But it is a fight we cannot look away from.


Sorry if I'm rambling..


Carry on, and peace, KoKo01.

[mmonk]

2. Yes, they can stop him constitutionally. It's a matter of war

and that power rests with Congress. The president is appointed commander and chief ONCE war is DECLARED. But we've already heard the excuses and distortions of truth, even from congress, about what they can or can't do.

[Blackhatjack]

3. IMHO This is the most impt issue facing the US today, bar none.

As Zbigniew Brzezinski has warned, we are on the edge of a war with Iran.

Once the first missiles are fired and bombs dropped on Iran, there will be no going back.

The time to act to prevent there being a 'war by mistake' is now.

Congress is the only entity with the power to do that. Debating non-binding resolutions is just wasting time. The AMerican people spoke at the last election, and still Congress refuses to do anything substantive to stop the Bush/Cheney NeoCons from implementing the next phase of their world domination playbook strategy.

Sorry to say, but impeachment won't mean a thing if we find ourselves wrapped up in a new war with Iran and Syria, and increased attacks in Iraq.

[Blackhatjack]

4. Feingold is right. Congress needs to Act Now To Stop Bush....

and forget about non-binding resolutions. And if the Democratic Majority put it out there, the people would support them.

[Kurovski]

5. K&R.(nt)

[slipslidingaway]

6. K&R

[texpatriot2004]

7. Just Do It...NOW! nm

[halobeam]

8. Move On took on a "phone day" action for us to call and urge reps

not to support escalation. Why not to stop a war w/ Iran... ??? Again, the surge is already on... and it's debate is being stopped by Repubs in the Senate...

I say, NEXT? Well, the need to LIMIT this ME war is A FIRST PRIORITY, then go back to the mess in Iraq and fight it...

or do both at the same time... but this is not acceptable when our reps are not submitting/debating the REFUSAL to give Bush authority to go to war with Iran..

They ought to bring up the language "war, by accident"... in the forefront.

Not to mention..DEFUND the Iraq war and use the money they do have to give proper equipment to those still there, simultaneously deploying these troops out.

It's so sad to see this post as redundant at best. (meaning mine).. it's a no brainer if our reps cared for what is right and just OVER their own "reputation" that would be MIS-INTERPRETED as de-funding the equipment and support of what troops are there now.

[mod mom]

9. Iran was in their site all the time. No need for diplomacy when we have big bombs.

TIME TO ARREST THE CRAZY MAN IN THE WH!

[scarletwoman]

10. k & r -- I can't think of any issue more important to the entire fate & future of our republic

than stopping the Cheney administration from launching a war on Iran.

None.

sw

[scarletwoman]

11. Another kick -- I realize the sad fate of ANS is obviously of supreme importance,

but, you know, maybe there's a FEW people who are more worried about stopping a wider ME war...

sw

[BeHereNow]

18. What is "of supreme importance" re: ANS, the American people and the Iran Plan

I can not help but point this out, dear SW, and you know how I adore you-
None the less, the connecting dots between the Iran plan and the death of
ANS is, in my despairing observation, this:

We live in a country of people who have no compassion, empathy or remote
semblance of decency, this witnessed even here on DU by some of the
responses to the tragic life and death of so hapless a soul.

To think such a population could actually rise to the role of
stopping an attack on Iran is quite optimistic, if not delusional at best.

American is a soul sick country.
A mad dog chewing its own tail while licking the
hand of the of the master who kicks it in its diseased state.

I know you, of all people on DU, hear me.

I know we are both mesmerized, in horrific fascination,
at the collective belief, on both sides, that this is still a
"two-party" nation.

BHN

[scarletwoman]

20. Dear BHN, you are absolutely correct to point out that these things are connected.

I do not disagree with you in the least.

Yet, when I see so much energy poured into ephemera, I cannot help but think that all that passion might be put to better use in understanding the very Big Picture that truly DOES encompass both ANS and the MIC.

We are so thoroughly embedded within a dysfunctional paradigm that it is extremely difficult, imho, to have a true sense of proportion or perspective. Therefore, I am aware that my perceptions are no more likely to be accurate than anyone elses.

But it worries me when so much energy is spent on individual eruptions of this dysfunctional paradigm -- which ought to be so evident by now so as to render us much less subject to paroxsms of surprise and outrage as its day-to-day manifestations flare up into visibility with considerable regularity.

This IS the society we are in. It should no longer shock and send us into an orgy of chatter everytime the clown leaps out of the jack-in-the-box, once we've become aware of the fact that someone is turning the crank.

What needs attention is the turner of the crank -- not the clown leaping out.

I have no idea if the point I'm hoping to make is at all clear. I just wanted to respond honestly to your post.

sw

[blondeatlast]

12. While I admired Dean for his courage in Watergate, I always considered him "one of them."

This is a mna who has roundly proven that he loves this nation and he respects the rule of law and justice.

Imagine the level of discourse if HE had an hour show every night. I can dream.

[blondeatlast]

13. Too late to recommend this--please, please, keep it kicked high. nt

[bananarepublican]

14. K&R. Could the military disobey what they considered an illegal order?

They've experienced the consequences of blindly following Humpty and Dumpty into Iraq.

[seafan]

17. I believe the short answer is yes. See this article:

A Duty to Disobey All Unlawful Orders

by LAWRENCE MOSQUEDA
February 27, 2003

.....

The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.

During the Iran-Contra hearings of 1987, Senator Daniel Inouye of Hawaii, a decorated World War II veteran and hero, told Lt. Col. Oliver North that North was breaking his oath when he blindly followed the commands of Ronald Reagan. As Inouye stated, "The uniform code makes it abundantly clear that it must be the Lawful orders of a superior officer. In fact it says, 'Members of the military have an obligation to disobey unlawful orders.' This principle was considered so important that we-we, the government of the United States, proposed that it be internationally applied in the Nuremberg trials." (Bill Moyers, "The Secret Government", Seven Locks Press; also in the PBS 1987 documentary, "The Secret Government: The Constitution in Crisis")

much more...

[bananarepublican]

21. If the military is filled with Oliver Norths...

Thanks seafan. It seems that within all levels of government we are hoping that there is still a strong commitment to "we the people".

I don't know much about O.N. ("Operation Northwoods", what a freaky coincidence!), but what I do know, I don't like. I sure can see him serving in one of our 'secret prisons' and actually enjoying himself.

[scarletwoman]

19. The military would NOT "disobey". The military will do what it is ordered to do.

See Pat Lang:

Pat Lang in comments at his blog, Sic Semper Tyrannis:

All

You folks are wrong to think that American officers will not carry out an "execute" order from the CinC. You are simply wrong.

As to the judgment as to whether or not such an order would be legal. Line officers are not lawyers.

American officers do not, I say again do not, associate their situation in any way with that of the Germans and Japanese who were hanged after WW2. American officers do not expect to be tried by the victors.

pl

Biography

Colonel W. Patrick Lang is a retired senior officer of U.S. Military Intelligence and U.S. Army Special Forces (The Green Berets). He served in the Department of Defense both as a serving officer and then as a member of the Defense Senior Executive Service for many years. He is a highly decorated veteran of several of America’s overseas conflicts including the war in Vietnam. He was trained and educated as a specialist in the Middle East by the U.S. Army and served in that region for many years. He was the first Professor of the Arabic Language at the United States Military Academy at West Point, New York. In the Defense Intelligence Agency (DIA) he was the “Defense Intelligence Officer for the Middle East, South Asia and Terrorism,” and later the first Director of the Defense Humint Service.”

sw

[bananarepublican]

22. "American officers do not expect to be tried by the victors."!!!!

I bet SS officers expected pretty much the same thing!