By Charlie Savage, Globe Staff July 16, 2007
WASHINGTON -- In December 1970, Congress passed historic legislation revoking the 1964 Tonkin Gulf resolution, which had authorized military force in Vietnam, and banning the deployment of ground troops in Cambodia. War opponents hoped Congress was on the verge of forcing a quick end to the bloody quagmire in Indochina.
"The president, in our judgment, now lacks legitimate authority to keep on prosecuting the war," said Senator Frank Church , Democrat of Idaho, in a 1971 speech. "Under these circumstances, a great opportunity is presented to Congress -- the chance to fill this constitutional vacuum with a disengagement policy that could help unite the country again."
War opponents' hopes were dashed. Despite signing the bills, President Nixon said he had independent authority as commander in chief to keep combat in Vietnam going. For the next two years, Congress failed to agree on further restrictions, and nearly 3,000 more American soldiers died. Nixon finally ended the war on his own terms with a cease - fire agreement in January 1973.
In the coming months, some 34 years after the Vietnam War shuddered to a halt, Congress will again attempt to do something unprecedented: stopping a war before a president is ready. Scholars agree that Congress has the power to force a shift in the conduct of the Iraq war, but the path will be difficult in the face of uncompromising opposition from President Bush.
Julian Zelizer , a Princeton history professor, said that there has always been a gap between what Congress can theoretically do to end a war and what is politically achievable. The ugly consequences of withdrawals, coupled with procedural rules that allow a group of 40 senators to block votes, have proved to be steep obstacles to winning enough votes to stop combat.
"Once you are in a war, it's hard to get out of it," said Zelizer. "When the messiness of war is combined with the messiness of Congress, the result is that it is very hard to get congressional opposition under way."
Congress is considering such proposals as repealing the Iraq war authorization, moving troops out of cities, narrowing their mission from policing the sectarian strife to hunting terrorists, and limiting troop rotations. Last week, the House passed a measure that would require a withdrawal to begin within 120 days and be completed by April .
But such measures face additional hurdles in the Senate, where Republicans can use the procedural tactic known as a filibuster to block a vote on anything that does not have the support of 60 senators. On Wednesday, for example, 41 senators blocked a vote on a proposal to require troops to receive additional time at home before being redeployed.
There is ample historical precedent for Congress imposing limits on what presidents can do with US troops in the midst of a war, specialists say. But in all previous such cases, Congress was working with a president who was willing to sign its bills into law, usually as a negotiated compromise.
In Vietnam, for example, Congress banned ground combat troops from Laos and Thailand in 1969, and from Cambodia in 1970. And in July 1973, when the combat in Vietnam was over anyway, lawmakers cut off funds for further military action in Indochina -- a gesture that prevented the United States from restarting the war after the North Vietnamese broke the cease-fire agreement in 1975.
Congress has also repeatedly imposed limits on what presidents can do with forces on peacekeeping missions. In 1983 and in 1993, it imposed deadlines for pulling out of Lebanon and Somalia, respectively. Congress also banned further covert paramilitary aid to anti-Marxist fighters in Angola in 1976, and in Nicaragua in 1984.
But Bush has promised to veto any legislation that limits his flexibility in how to conduct the Iraq war -- as he did in May when he vetoed a funding bill that included a timetable for withdrawal. And, analysts note, Bush is in a far different political situation than were Nixon in 1971, Gerald Ford in 1976, Ronald Reagan in 1983 and 1984, or Bill Clinton in 1993.
In those prior cases, presidents had years of governing ahead of them -- or at least believed that they did. But Bush's presidency will soon be over and Vice President Dick Cheney is not running to replace him. Thus, the White House has less reason to compromise with Congress -- or to worry about public opinion polls.
"No one in that White House is destined for an accountability moment," said Harvard law professor David Barron . "Under normal circumstances a president would have incentives to bring [a war] to a close -- consistent with the wishes of the legislature, but somehow still on his own terms. But there doesn't seem to be any interest in doing that."
Bush's lame-duck status, Barron said, also may make GOP lawmakers more willing to break with the White House because their political futures are no longer entwined with the president's.
Such a dynamic raises the possibility that Congress could pass some kind of war restriction over Bush's veto -- only to see Bush defy the law anyway.
Prompted in part by Cheney, the Bush administration has championed an aggressive view of executive power under which Congress cannot restrict the commander in chief's options, short of cutting off funds for the troops. This constitutional interpretation, which is disputed by many legal scholars, has surfaced repeatedly in recent months.
On May 1, when Bush vetoed the Iraq timetable bill, he told Congress that it was unconstitutional "because it purports to direct the conduct of the operations of the war in a way that infringes upon the powers vested in the presidency by the Constitution, including as commander in chief of the armed forces."
Last Tuesday, Bush sent Congress a letter threatening to veto any defense bill that restricted his options not only for dealing with Iraq, but also with Iran. His letter asserted that the Constitution "exclusively" commits to him alone the power to decide how to use military or covert force in such national security situations.
And in a news conference Thursday, Bush repeated again his view that Congress can only decide whether to fund the war -- but that all other decisions were for the commander in chief.
In that news conference, Bush also said he would not want to establish a precedent by agreeing to let Congress share in setting troop levels. If Bush refuses to obey laws restricting his conduct of the war, scholars said, it could take months for Congress and the courts to strike back -- a process that might take too long to complete before he leaves office.
"If the executive branch is determined to push its powers to the brink of what they can get away with, the problem for the other branches is that any response they can make within a system of checks and balances takes time," said Peter Shane , an Ohio State law professor.
Added Barron: "It's a perfect storm for a constitutional crisis."
History has shown that it can be politically difficult to force presidents to obey restrictions on their use of the military. In May 1975, for example, the Cambodian Navy seized an American freighter called the Mayaguez and kidnapped its crew. Without consulting Congress, Ford ordered US Marines to attack an island where the crew was believed to be held.
Ford's move drew fire because of the ban on using ground troops in Cambodia, as well as a 1973 law requiring presidents to consult with Congress before sending troops into combat. In an Oval Office meeting, Speaker of the House Carl Albert , Democrat of Oklahoma, told Ford: "There are charges on the floor that you have violated the law."
But, a transcript shows, Ford cited his power as commander in chief to say that he had acted within his legal rights: "It is my constitutional responsibility to command the forces and to protect Americans."
The Mayaguez crew was rescued. The operation was portrayed by the media as a feel-good victory in the wake of the humiliating fall of Saigon. Congress lacked the political will to challenge Ford.
Months later, after the controversy faded, it emerged that the rescue operation was not such a success. Instead of one Marine dead and 13 missing, as early reports said, 41 died assaulting the island. Worse, the crew had already been released and was floating out to be picked up by the Navy when the assault began.
In his memoirs, Ford said he "felt terrible" about the "high toll," but believed he had done the right thing. He wrote: "We had recovered the ship, we had rescued the crew, and the psychological boost the incident had given us as a people was significant."
WASHINGTON -- In December 1970, Congress passed historic legislation revoking the 1964 Tonkin Gulf resolution, which had authorized military force in Vietnam, and banning the deployment of ground troops in Cambodia. War opponents hoped Congress was on the verge of forcing a quick end to the bloody quagmire in Indochina.
"The president, in our judgment, now lacks legitimate authority to keep on prosecuting the war," said Senator Frank Church , Democrat of Idaho, in a 1971 speech. "Under these circumstances, a great opportunity is presented to Congress -- the chance to fill this constitutional vacuum with a disengagement policy that could help unite the country again."
War opponents' hopes were dashed. Despite signing the bills, President Nixon said he had independent authority as commander in chief to keep combat in Vietnam going. For the next two years, Congress failed to agree on further restrictions, and nearly 3,000 more American soldiers died. Nixon finally ended the war on his own terms with a cease - fire agreement in January 1973.
In the coming months, some 34 years after the Vietnam War shuddered to a halt, Congress will again attempt to do something unprecedented: stopping a war before a president is ready. Scholars agree that Congress has the power to force a shift in the conduct of the Iraq war, but the path will be difficult in the face of uncompromising opposition from President Bush.
Julian Zelizer , a Princeton history professor, said that there has always been a gap between what Congress can theoretically do to end a war and what is politically achievable. The ugly consequences of withdrawals, coupled with procedural rules that allow a group of 40 senators to block votes, have proved to be steep obstacles to winning enough votes to stop combat.
"Once you are in a war, it's hard to get out of it," said Zelizer. "When the messiness of war is combined with the messiness of Congress, the result is that it is very hard to get congressional opposition under way."
Congress is considering such proposals as repealing the Iraq war authorization, moving troops out of cities, narrowing their mission from policing the sectarian strife to hunting terrorists, and limiting troop rotations. Last week, the House passed a measure that would require a withdrawal to begin within 120 days and be completed by April .
But such measures face additional hurdles in the Senate, where Republicans can use the procedural tactic known as a filibuster to block a vote on anything that does not have the support of 60 senators. On Wednesday, for example, 41 senators blocked a vote on a proposal to require troops to receive additional time at home before being redeployed.
There is ample historical precedent for Congress imposing limits on what presidents can do with US troops in the midst of a war, specialists say. But in all previous such cases, Congress was working with a president who was willing to sign its bills into law, usually as a negotiated compromise.
In Vietnam, for example, Congress banned ground combat troops from Laos and Thailand in 1969, and from Cambodia in 1970. And in July 1973, when the combat in Vietnam was over anyway, lawmakers cut off funds for further military action in Indochina -- a gesture that prevented the United States from restarting the war after the North Vietnamese broke the cease-fire agreement in 1975.
Congress has also repeatedly imposed limits on what presidents can do with forces on peacekeeping missions. In 1983 and in 1993, it imposed deadlines for pulling out of Lebanon and Somalia, respectively. Congress also banned further covert paramilitary aid to anti-Marxist fighters in Angola in 1976, and in Nicaragua in 1984.
But Bush has promised to veto any legislation that limits his flexibility in how to conduct the Iraq war -- as he did in May when he vetoed a funding bill that included a timetable for withdrawal. And, analysts note, Bush is in a far different political situation than were Nixon in 1971, Gerald Ford in 1976, Ronald Reagan in 1983 and 1984, or Bill Clinton in 1993.
In those prior cases, presidents had years of governing ahead of them -- or at least believed that they did. But Bush's presidency will soon be over and Vice President Dick Cheney is not running to replace him. Thus, the White House has less reason to compromise with Congress -- or to worry about public opinion polls.
"No one in that White House is destined for an accountability moment," said Harvard law professor David Barron . "Under normal circumstances a president would have incentives to bring [a war] to a close -- consistent with the wishes of the legislature, but somehow still on his own terms. But there doesn't seem to be any interest in doing that."
Bush's lame-duck status, Barron said, also may make GOP lawmakers more willing to break with the White House because their political futures are no longer entwined with the president's.
Such a dynamic raises the possibility that Congress could pass some kind of war restriction over Bush's veto -- only to see Bush defy the law anyway.
Prompted in part by Cheney, the Bush administration has championed an aggressive view of executive power under which Congress cannot restrict the commander in chief's options, short of cutting off funds for the troops. This constitutional interpretation, which is disputed by many legal scholars, has surfaced repeatedly in recent months.
On May 1, when Bush vetoed the Iraq timetable bill, he told Congress that it was unconstitutional "because it purports to direct the conduct of the operations of the war in a way that infringes upon the powers vested in the presidency by the Constitution, including as commander in chief of the armed forces."
Last Tuesday, Bush sent Congress a letter threatening to veto any defense bill that restricted his options not only for dealing with Iraq, but also with Iran. His letter asserted that the Constitution "exclusively" commits to him alone the power to decide how to use military or covert force in such national security situations.
And in a news conference Thursday, Bush repeated again his view that Congress can only decide whether to fund the war -- but that all other decisions were for the commander in chief.
In that news conference, Bush also said he would not want to establish a precedent by agreeing to let Congress share in setting troop levels. If Bush refuses to obey laws restricting his conduct of the war, scholars said, it could take months for Congress and the courts to strike back -- a process that might take too long to complete before he leaves office.
"If the executive branch is determined to push its powers to the brink of what they can get away with, the problem for the other branches is that any response they can make within a system of checks and balances takes time," said Peter Shane , an Ohio State law professor.
Added Barron: "It's a perfect storm for a constitutional crisis."
History has shown that it can be politically difficult to force presidents to obey restrictions on their use of the military. In May 1975, for example, the Cambodian Navy seized an American freighter called the Mayaguez and kidnapped its crew. Without consulting Congress, Ford ordered US Marines to attack an island where the crew was believed to be held.
Ford's move drew fire because of the ban on using ground troops in Cambodia, as well as a 1973 law requiring presidents to consult with Congress before sending troops into combat. In an Oval Office meeting, Speaker of the House Carl Albert , Democrat of Oklahoma, told Ford: "There are charges on the floor that you have violated the law."
But, a transcript shows, Ford cited his power as commander in chief to say that he had acted within his legal rights: "It is my constitutional responsibility to command the forces and to protect Americans."
The Mayaguez crew was rescued. The operation was portrayed by the media as a feel-good victory in the wake of the humiliating fall of Saigon. Congress lacked the political will to challenge Ford.
Months later, after the controversy faded, it emerged that the rescue operation was not such a success. Instead of one Marine dead and 13 missing, as early reports said, 41 died assaulting the island. Worse, the crew had already been released and was floating out to be picked up by the Navy when the assault began.
In his memoirs, Ford said he "felt terrible" about the "high toll," but believed he had done the right thing. He wrote: "We had recovered the ship, we had rescued the crew, and the psychological boost the incident had given us as a people was significant."
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