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There is Only One Way to End The War in Iraq, Part I

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On November 7, 2006, the American public voted for a New Direction for our Iraq policy. That direction is--out. As Democrats prepare to take the majority for the first time in twelve years, Democrats now have the responsibility to act on the overwhelming mandate issued by the American public.

Will that new direction mean an exit from Iraq? Because, if not, America will be held hostage by the skyrocketing cost of the war in Iraq even as President Bush leaves office at 11:59 am on January 20, 2009. And, the voters will not forget who let them down.

I.

There is only one way in which the United States will withdraw from Iraq, prior to the end of President Bush's term: Congress must vote to cut off funds.

History and the law give a clear guide on how to end the war in Iraq.

In Campbell v. Clinton, a case in US District Court in 1999, twenty six members of Congress, including myself, sued President Clinton for continuing to prosecute the war against Serbia without a declaration of war. The Court ruled in favor of the Administration because it could find no constitutional impasse existed between the Legislative and the Executive branch requiring judicial intervention. Congress had appropriated funds for the war and therefore chose not to remove US forces. The 'Implied Consent' Theory of Presidential War Power Is Again Validated. Military Law Review, Vol. 161, No. 202, September 1999 Geoffrey S. Corn. South Texas College.

Congress can debate and pass legislation for redeployment, phased redeployment, or an over the horizon presence. Congress can vote for a resolution to end the war and a resolution to bring the troops home. However, none of this will have any legal effect. Each appropriations approval was a vote to continue the Iraq war.

The Administration does not have to pay any attention to Congress' attempt to guide the administrative conduct of the war. Once Congress gave its consent for military action, it literally did not have the authority to guide the conduct of the war. At this point, the only option Congress has to guide the conduct of the war is to withdraw approval for the war through a cut off. Even a substantial reduction of funds could leave open the door for a legal claim that Congress still intends to keep troops in Iraq. The Administration can rummage through the DOD budget and find money to keep its desired troop levels. Unless the Congress totally cuts off funds, it leaves itself open to an imposition of Presidential will through the Food and Forage Act of 1861 which gives the President the authority to directly spend money for troops in the field absent a congressional appropriation.

The Campbell case makes it clear that as long as Congress continues to fund the war, it cannot simultaneously argue that its will is being usurped with respect to the war powers. Each appropriations vote gives the President "implied consent" to continue the war. So it is clear that this war is not only the President's. This war belongs to Congress as well, to Democrats and Republicans alike, in the House and in the Senate. And, unless and until Congress decides to force a new direction by cutting off funds, the United States will continue to occupy Iraq and have a destabilizing presence in the Middle East region.

The first appropriation bill regarding Iraq, is due early in 2007. While the legislation authorizing the War in Iraq passed on October 10, 2002, each and every time Congress was faced with an appropriation for the war, it gave consent for the war all over again.

A quick review of Congressional votes, under a Republican majority, shows Congress' willingness to continue the war in Iraq.

Key Iraq Votes: The War and The Money
dennisvotes.jpg

Note 1. The House passed a Continuing Appropriations bill by Voice Vote on January 8, just before adjourning. The Conference Committee met and added $10.4 billion in military spending as "defense technical corrections" at the request of the White House, which signed the bill into law on 2/20/03. The United States commenced a military attack on Iraq on 3/19/03.

Legend
HR ---- House Resolution
S ---- Senate Resolution
UC - Unanimous Consent, without objection.
VV - Voice Vote (No recorded vote requested)
H Conf - House Conference
S Conf - Senate Conference
DOD - Department of Defense
FY - Fiscal Year


This chart of key appropriations votes shows the difficulty in changing policies in Iraq. It is obvious that from the very beginning of the war that not only Republicans, but Democrats in Congress have supported a continuation of the war, and therefore have repeatedly rejected attempts to curtail the conduct of the war.

Once troops in the field, support for the war within Congress, as measured by support for Iraq war appropriations, increased sharply among Democrats in the House, to the point where only a small number of House Democrats consistently opposed continued funding for the war.

Indeed, a little more than one month before the Great Realignment of November 2006, (the most recent vote taken on an Iraq funding bill) on September 30, 2006, only twenty Democrats voted against the conference report which provided another $70 billion for the war. The Senate passed the bill 100 - 0.

--Rep. Dennis Kucinich

Click here for Part II of this series.

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