POLITICAL PENUMBRAS OF TAXES AND WAR POWERS FOR THE 2012 ELECTION (DO NOT DELETE)1/16/2013 1:00 PM
POLITICAL PENUMBRAS OF TAXES AND WAR
POWERS FOR THE 2012 ELECTION
Robert Bejesky*
I. INTRODUCTION
This Article evaluates taxing and spending consequences
and political dynamics of war power negotiations surrounding the
invasion and occupation of Iraq as an issue for reflection in the
2012 presidential election. Nobel Laureate Shirin Ebadi
remarked:
Consider all the money spent and all the people killed in
Afghanistan, yet still 60% of the country is in the hands of
the Taliban. What was the result of the invasion of Iraq?
The deaths of over one million civilians and the enrichment
of two or three corporations. Why do you pay taxes when the
money goes to waging wars? 1
There are varying opinions regarding the success of
operations in Iraq and Afghanistan. Likewise, civilian death toll
estimates have ranged widely, presumably because an estimated
60,000 Iraqi refugees fled their homes monthly to escape adverse
domestic conditions. 2 Another study, published in the Lancet
* M.A. Political Science (Michigan), M.A. Applied Economics (Michigan), LL.M.
International Law (Georgetown). The author has taught international law courses
for Cooley Law School and the Department of Political Science at the University of
Michigan, American Government and Constitutional Law courses for Alma College,
and business law courses at Central Michigan University and the University of
Miami. I would like to express my gratitude to Amy Duncan, Rachel Sternleib, and
the associate editors who worked on this article for their insightful suggestions,
conscientious assistance, and thorough footnote work.
1. Shirin Ebadi, Islam, Human Rights, and Iran, 23 EMORY INT’L L. REV. 13, 23
(2009); See also Natsu Taylor Saito, Human Rights, American Exceptionalism, and
the Stories We Tell, 23 EMORY INT’L L. REV. 41, 60 (2009) (“many sources reported
that the civilian death toll had likely exceeded one million by early 2008”).
2. Roberta Cohen, Symposium: Rethinking the Future: The Next Five Years in
Iraq: Iraq’s Displaced: Where to Turn?, 24 AM. U. INT’L L. REV. 301, 303 (2009)
1
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medical journal, involved physicians conducting a sectoral survey
of Baghdad and estimated that there were 655,000 Iraqi deaths. 3
President Bush postulated that the scientific methodology
employed in this study was “pretty well discredited” and that the
researchers were politicking. 4 Other studies have yielded less
nebulous numbers.
According to a database compiled by two nonprofit
organizations, in the period surrounding the Iraq War, top Bush
Administration officials made at least 935 patently false public
statements and hundreds of other misleading statements about
weapons of mass destruction (“WMDs”) and ties to al-Qaeda on
532 different occasions. 5 Iraq possessed no WMDs and had no
convincing ties to al-Qaeda, 6 but Americans paid for military
action. Over four thousand United States soldiers died while
executing operations in Iraq. 7 Direct costs mounted to over $800
(remarking about refugees in Iraq: “The U.S. invasion . . . far from resolving the
problem, however, made it worse. . . . [by] catapult[ing] the country into a near civil
war . . . [and causing] some 60,000 Iraqis . . . to [leave] their homes every month.”);
Id. at 320 (“One reason the Bush Administration has failed to do more to help Iraq’s
refugees is that doing so would require an implicit admission that its policies have
not produced peace and stability in Iraq but rather a refugee crisis.”).
3. Heba Fatma Morayef, Note, The Politics and Limitations of Counting the
Dead: A Review of Two Mortality Studies on Iraq, 11 DEPAUL J. HEALTH CARE L.
413, 425 n. 63 (2008).
4. Iraqi war deaths number 655,000: Report, SYDNEY MORNING HERALD, Oct. 12,
2006, http://www.smh.com.au/news/World/Iraqi-war-deaths-number-655000-report
/2006/10/12/1160246224065.html.
5. Study: “False Pretenses” Led U.S. to War, CBSNEWS.COM, Feb. 11, 2009,
http://www.cbsnews.com/stories/2008/01/23/national/main3741706.shtml;
Charles
Lewis & Mark Reading-Smith, False Pretenses, CTR. FOR PUB. INTEGRITY, Jan. 23,
2008, http://www.publicintegrity.org/2008/01/23/5641/false-pretenses; (“President
George W. Bush and seven of his administration’s top officials, including Vice
President Dick Cheney, National Security Adviser Condoleezza Rice, and Defense
Secretary Donald Rumsfeld, made at least 935 false statements in the two years
following September 11, 2001, about the national security threat posed by Saddam
Hussein’s Iraq. . . . On at least 532 separate occasions (in speeches, briefings,
interviews, testimony, and the like), Bush and these three key officials, along with
Secretary of State Colin Powell, Deputy Defense Secretary Paul Wolfowitz, and
White House press secretaries Ari Fleischer and Scott McClellan, stated
unequivocally that Iraq had weapons of mass destruction (or was trying to produce or
obtain them), links to Al Qaeda, or both.”).
6. Robert Bejesky, Intelligence Information and Judicial Evidentiary Standards,
44 CREIGHTON L. REV. 811, 818-19, 855-56, 858-59 (2011) [hereinafter Bejesky,
Intelligence].
7. Iraq Death Toll Reaches 4,000, REUTERS, Mar. 24, 2008, available at
http://www.reuters.com/article/2008/03/24/us-iraq-soldiers-idUSL2422443020080324.
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billion. 8 Nobel Laureate Joseph Stiglitz and Harvard Professor
Linda Bilmes included direct and indirect expenditures and
estimated unbelievable spending totals in their book, The Three
Trillion War: The True Cost of the Iraq Conflict (2008). 9
But for repeated warnings of peril, Americans might not
have initially acquiesced to the war. However, Iraq was
purportedly also a regional threat, which connotes that U.S.
military force was deployed to intervene in global security as a
collective good. Several months after invasion, National Security
Advisor Condoleezza Rice characterized Iraq as a threat to the
Middle East even though contiguous countries had convened at a
summit three months earlier, voted unanimously (with only
Kuwait abstaining) that the invasion of Iraq was a threat to
international peace and security, and demanded that military
forces withdraw. 10 Instead of heeding the demands of contiguous
countries, the Bush Administration favored long-term occupation,
conjecturally to “liberate” Iraqis, even as regularly-taken polls
revealed that approximately eighty percent of Iraqis opposed
continuing occupation. 11 In 2007, the new Iraq government
maintained that the U.S. military presence was still required to
stave off threats to sovereignty. 12 Ergo, before the invasion,
“good” neighbors required protection from “bad” Iraq, but after
the invasion, “good” Iraq required security from “bad” neighbors.
Due to the Iraq War and a troubled American economy,
President Bush exited office with twenty-two percent approval
ratings, the lowest departing approval ratings since Gallup began
polling Americans on presidential approval ratings more than
8. James Glanz, The Economic Cost of War, N.Y. TIMES, Mar. 1, 2009 at WK1,
available at http://www.nytimes.com/2009/03/01/weekinreview/01glanz.html.
9. JOSEPH E. STIGLITZ & LINDA BILMES, THE THREE TRILLION DOLLAR WAR: THE
TRUE COST OF THE IRAQ CONFLICT 7 (2008).
10. Robert Bejesky, Politico-International Law, 57 LOY. L. REV. 29, 50-51 (2011)
[hereinafter Bejesky, Politico]; Colin Powell, Secretary of State, Address to the
United Nations Security Council, (Feb. 5, 2003), http://georgewbushwhitehouse.archives.gov/news/releases/2003/02/20030205-1.html
(Powell
also
contending Iraq was a regional threat). Press Release, U.S. Secretary of State Colin
Powell Addresses the U.N. Security Council (2003), http://georgewbushwhitehouse.archives.gov/news/releases/2003/02/20030205-1.html.
11. Bejesky, Politico, supra note 10, at 102-07.
12. Thom Shanker, Minister Sees Need for U.S. Help in Iraq Until 2018, N.Y.
TIMES, Jan. 15, 2008, http://www.nytimes.com/2008/01/15/world/middleeast/15milit
ary.html.
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seventy-five years ago. 13 The Bush Administration nearly doubled
the U.S. national debt from over five trillion to ten trillion. 14 The
national debt has since morphed to fifteen trillion, partially
because of high oil prices 15 and because President Obama
implemented spending measures to stimulate the economy and
alleviate the poor economic conditions that prevailed when he
entered the Oval Office. 16
President Obama has normally been diplomatic in
confronting political opposition, 17 but in mid-August 2011 and
during budgetary turmoil, he criticized the Republican
presidential candidates for failing to use common sense and
balance since “all eight of the candidates said they would refuse
13. Bejesky, Politico, supra note 10, at 31; Bush’s Final Approval Rating: 22
Percent, CBSNEWS.COM, Feb. 11, 2009, http://www.cbsnews.com/stories/2009/01/16/
opinion/polls/main4728399_page2.shtml?tag+contentMain;contentBody.
14. U.S. DEP’T OF THE TREASURY, BUREAU OF THE PUBLIC DEFICIT, REPORTS,
HISTORICAL DEBT OUTSTANDING – ANNUAL 2000-2010, http://www.treasury
direct.gov/govt/reports/pd/histdebt/histdebt_histo5.htm; Bruce Patsner, Book Review:
The Three Trillion Dollar War: The True Cost of the Iraq Conflict, 11 DEPAUL J.
HEALTH CARE L. 359, 360 (2008) (reviewing JOSEPH STIGLITZ & LINDA BLIMES, THE
THREE TRILLION DOLLAR WAR: THE TRUE COST OF THE IRAQ CONFLICT (2008)).
15. The inflation-adjusted price of oil was substantially higher during the Obama
presidency than during the Bush presidency. Oil Prices 1946-Present,
INFLATIONDATA.COM,
http://inflationdata.com/inflation/inflation_Rate/Historical_
Oil_Prices_Table.asp (last updated June 14, 2012) (using inflation-adjusted numbers,
this averages to $54 per barrel during the Bush presidency from 2001-2008, and
averages $79 per barrel during the Obama presidency from 2009-2012). This leads to
debits on the U.S. current account and more debt. U.S. oil imports were nearly $1.48
trillion during 2009 to 2012. JAMES K. JACKSON, CONG. RESEARCH SERV., RS22204,
U.S. TRADE DEFICIT AND THE IMPACT OF CHANGING OIL PRICES 2 (2012),
http://www.fas.org/sgp/crs/misc/RS22204.pdf (referencing estimated dollar value of
oil imports for 2012); NEELESH NERURKAR, CONG. RESEARCH SERV., R42465, U.S. OIL
IMPORTS AND EXPORTS 12 (2012), http://www.fas.org/sgp/crs/misc/R42465.pdf
(providing dollar value of oil imports for 2009, 2010, 2011).
16. David Jackson, Fed Debt Hits $15 trillion; GOP blasts Obama,
USATODAY.COM,
Nov.
16,
2011,
http://content.usatoday.com/communities/
theoval/post/2011/11/fed-debt-hits-15-trillion-gop-blasts-obama/1; Obama: Stimulus
Lets
Americans
Claim
Destiny,
NBCNEWS.COM,
Feb.
17,
2009,
http://www.msnbc.msn.com/id/29231790/ns/politics-white_house/ (discussing $787
billion stimulus plan).
17. Stephen Eliot Smith, Defining Maybe: The Outlook for U.S. Relations with the
International Criminal Court During the Obama Administration, 22 FLA. J. INT’L L.
155, 156 (2010); Robert Justin Lipkin, The Obama Phenomenon: Deliberative
Conversationalism & the Pursuit of Community Through Presidential Politics, 12 U.
PA. J.L. & SOC. CHANGE 169, 171, 200 (2008-2009) (Obama “infused the young with
the will to sweep away, what they consider to be our broken political system and to
replace it with the pursuit of community and the common good”).
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to support a deal with tax increase . . . .” 18 Governor Mitt
Romney, the Republican presidential candidate, did not offer a
viable solution to the debt problem. During the second
presidential debate in October 2012, President Obama pointed
out that Romney wants to enact a platform that will reform the
tax code with provisions that will cost nearly $5 trillion in lost tax
revenue, “wants to spend $2 trillion on additional military
programs even though the military’s not asking for them,” and
“wants to continue the Bush tax cuts for the wealthiest
Americans”— “that’s $8 trillion.” 19 When queried how Romney’s
programs will still balance the federal budget, Obama pointed out
that Romney’s common explanation has been, “we can’t tell you
until maybe after the election how we’re going to [pay for it].” 20 As
for the Republican candidates’ position on foreign policy during
the primaries, a New York Times editorial opined: “Republican
hopefuls have put to rest any lingering notion that their party is
the one to trust with the nation’s security . . . [T]he candidates
offer largely bad analysis and worse solutions, nothing that
suggests real understanding or new ideas.” 21
Republicans eagerly endeavor to recapture the White House.
Senate Minority Leader Mitch McConnell stated: “The single
most important thing we want to achieve is for President Obama
to be a one-term president.” 22 In February 2010, former
Republican Vice President Candidate Sarah Palin commented, “I
do not think Obama would be re-elected” if an election was held
today, but if “he decided to declare war on Iran” or confronted a
“national security threat,” the dynamics would change. 23 It is not
18. Obama Criticizes GOP Presidential Field, YAHOO!NEWS, Aug. 15, 2011,
http://news.yahoo.com/obama-criticizes-gop-presidential-field-175630952.html.
19. President Obama and Governor Romney, Remarks at the 2012 Presidential
Debate at Hofstra University (Oct. 16, 2012) (transcript available at
http://www.washingtonpost.com/politics/decision2012/2012-presidential-debatepresident-obama-and-mitt-romneys-remarks-at-hofstra-university-on-oct-16running-transcript/2012/10/16/be8bfb9a-17dd-11e2-9855-71f2b202721b_print.html).
20. Id.
21. Editorial, Republicans and Foreign Policy, N.Y. TIMES, Oct. 18, 2011, at A26,
available at http://www.nytimes.com/2011/10/18/opinion/republicans-and-foreignpolicy.html; Kevin Sullivan, A New Republican Foreign Policy?, GEO. J. OF INT’L
AFFAIRS, Jan. 24, 2012, http://journal.georgetown.edu/2012/01/24/a-new-republicanforeign-policy/ (“The candidates still attempt to ground their foreign policy in mutual
reverence for President Reagan.”).
22. Republicans Take Control of the House, But Not Senate, PBS (Nov. 2, 2010),
http://www.pbs.org/newshour/extra/features/us/july-dec10/electionday_11-02.html.
23. Transcript: Fox News Sunday Interview With Sarah Palin, FOXNEWS.COM,
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clear that Congress would want to declare war, 24 or that the
American public would be interested in paying higher oil and
gasoline prices that could prevail with a war, 25 or that Americans
currently have any appetite for war, but Palin is correct that
conflict does change the political equation.
Leaders may reap short-term populace approval by
responding to perceived foreign crises and may even use force to
boost domestic support. 26 There is a “rally around the flag”
phenomenon. 27 President Reagan employed elevated threat
perceptions to drastically increase military spending, 28 the
Republican Party politically benefited from President Bush Sr.’s
1991 Gulf War, 29 and the second President Bush “framed” the
issue of Iraq as a part of the so-called “war on terror” to attain
both congressional and populace approval. 30 Through most of the
Bush presidency, Republicans continued to support the Iraq War
Feb. 7, 2010, http://www.foxnews.com/politics/2010/02/07/transcript-fox-newssunday-interview-sarah-palin/; Lipkin, supra note 17, at 190 (“In Obama’s view
division ‘has been exploited and encouraged by pundits and politicians who need this
division to score points and win elections’”).
24. U.S. CONST., art. I, § 8, cls. 11-14, 18 (Congress has the authority to “declare
war” and other enumerated war powers); Bejesky, Politico, supra note 10, at 29-32;
see infra note 33.
25. Guy Chazan, Soaring Oil Prices Risk Recession, FIN. TIMES, Mar. 23, 2012,
available
at
http://www.ft.com/intl/cms/s/0/ff0abf58-750d-11e1-a98b00144feab49a.html#axzz29fTwTOeB (noting that soaring oil prices can cause
recessions and adverse economic conditions); Agustino Fontevecchia, Attacking Iran
Would Push The U.S. Back Into Recession, FORBES, Feb. 24, 2012, available at
http://www.forbes.com/sites/afontevecchia/2012/02/24/attacking-iran-will-push-the-us-back-into-recession/ (recognizing how conflict with Iran could further increase
global oil prices and exacerbate recession).
26. Karl R. DeRouen, Jr., The Indirect Link: Politics, the Economy, and the Use of
Force, 39 J. CONFLICT. RESOL. 671, 672 (1995); PAUL BRACE & BARBARA HINCKLEY,
FOLLOW THE LEADER 107 (1992).
27. Barbara Norrander & Clyde Wilcox, Rally Around the Flag and Partisan
Change: The Case of the Persian Gulf War, 46 POL. RES. Q. 759 (1993); JOHN E.
MUELLER, WAR, PRESIDENTS AND PUBLIC OPINION (1973); John E. Mueller,
Presidential Popularity from Truman to Johnson, 64 AM. POL. SCI. REV. 18, 21
(1970).
28. Robert Higgs & Anthony Kilduff, Public Opinion: a Powerful Predictor of U.S.
Defense Spending, 4 DEF. ECON. 227, 234-35 (1993); Thomas Hartley & Bruce
Russet, Public Opinion and the Common Defense: Who Governs Military Spending in
the United States?, 86 AM. POL. SCI. REV. 905, 910-11 (1992); Charles W. Ostrom &
Robin F. Marra, U.S. Defense Spending and the Soviet Estimate, 80 AM. POL. SCI.
REV. 819 (1986).
29. Norrander & Wilcox, supra note 27.
30. BRUCE ACKERMAN, BEFORE THE NEXT ATTACK 16-17 (2006).
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while Democrats largely did not. 31 As for Democrats using
military force, while President Clinton was in the midst of
impeachment proceedings, and after ordering bombing operations
on Yugoslavia in 1999, various polls revealed that his approval
rating dropped between five and ten points. 32 In 2011, after
Obama used force against Libya and the operation was marked as
a success, his approval ratings still dropped to thirty-eight
percent. 33
Presidents should exhibit prudent fiscal responsibility and
be cautious when committing the country to war. Americans are
opposed to having a wider hole blown in the national deficit with
massive tax cuts and to being led into prolonged foreign conflict
by zealous reactions to speculated security threats. This article
addresses the consequential political processes as these issues
arose during the Bush Administration, which then became an
adversity for the Obama Administration.
II. BUSH-ERA FISCAL MANAGEMENT AMID SECURITY
THREATS
A. Tax Cuts and War Spending
In 2010, U.S. Census data indicated that the gap “between
31. An October 2003 Pew Research Center poll discovered that nearly seventy
percent of Republicans believed that the best way to ensure peace is by exhibiting
military strength; and eighty-five percent of Republicans believed going to war in
Iraq was the correct decision, while only thirty-nine percent of Democrats believed it
was the correct decision. William A. Galston, Political Polarization and the U.S.
Judiciary, 77 UMKC L. REV. 307, 311 (2008). On the question of “Iraq, under
Saddam Hussein, was a serious threat to U.S. security,” ninety-two percent of Bush
supporters agreed, but only thirty percent of Kerry supporters agreed. HARRIS
INTERACTIVE, The Harris Poll #79: Iraq, 9/11, Al Qaeda, and Weapons of Mass
Destruction, What the Public Believes Now, Oct. 21, 2004 (on file with author). In
March 2006, 70% of Republicans believed the U.S. military progress in Iraq was
progressing favorably, while only 30% of Democrats believed it was progressing
favorably. Galston, supra at 311. Throughout the war, Republican support for the
Iraq war was 40 to 70 points higher than Democrat support. Gary C. Jacobson,
George W. Bush, the Iraq War, and the Election of Barack Obama, 40 PRESIDENTIAL
STUDIES Q. 207, 211 (June 2009).
32. Edwin Chen, Clinton Approval Rating Drops, L.A. TIMES, May 1, 1999,
http://articles.latimes.com/1999/may/01/news/mn-32960.
33. Obama Approval Rating Hits All Time Low of 38 percent, DAILY MAIL, Aug.
29, 2011, http://www.dailymail.co.uk/news/article-2031247/Obama-approval-ratinghits-time-low-39-cent.html; Poll: Public Opposes Libya Military Action,
USATODAY.COM,
June
24,
2011,
http://content.usatoday.com/communities
/theoval/post/2011/06/poll-public-now-opposes-libya-military-action/1.
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rich and poor in the U.S. is the widest on record.” 34 In his 2007
State of the Economy Address, Bush addressed the swelling
socioeconomic statistic when he stated that “our citizens worry
about the fact that our dynamic economy is leaving working
people behind . . . [W]e have an obligation to help ensure that
every citizen shares in this country’s future. The fact is that
income inequality is real; it’s been rising for more than [twentyfive] years.” 35 Twenty-five years prior to this speech was 1982,
the second year of the Reagan Administration. Reagan cut taxes;
fostered deregulation, privatization, and the merger and
acquisition boom on Wall Street; and may have even precipitated
developing world debt crises by countenancing multinational
bank over-lending. 36 Moreover, Bush’s dismay was unexpected
after the Economic Growth and Tax Relief Act of 2001. 37
Professor Charles Tiefer discussed the context:
[From] 2001-2006, a ‘Republican Revolution’ transformed
the law of Congressional rules and procedures to allow that
party to implement an ideological agenda. . . . They
metamorphosed the tax system into a regressive form by
moving trillions of dollars in unpaid-for tax cuts for the top
brackets. And they enacted whole categories of industryindulgent or otherwise conservative legislation epitomized
by warping of health care (Medicare and Medicaid) and
bankruptcy law, [and] the 2004 omnibus corporate tax
giveaway . . . 38
It challenges even the most sophisticated observers to
understand what and how Congressional Republicans did to the
34. Ira Boudway, The Rich Get Richer. . .and You Know the Rest, BLOOMBERG
BUSINESS WEEK, Sept. 30, 2010, http://www.businessweek.com/magazine/content
/10_41/b4198033845016.htm.
35. Angel Gurría, Org. of Econ. Co-operation and Dev. Secretary-General,
Remarks on Launch of Growing Unequal?, (Oct. 21, 2008), available at
http://www.oecd.org/els/launchofgrowingunequalremarksbyangelgurriaoecdsecretarygeneral.htm; David Cay Johnston, Income Gap Is Widening, Data Shows, N.Y.
TIMES, Mar. 29, 2007, at C1.
36. GREG GRANDIN, EMPIRE’S WORKSHOP 182 (2006); Robert Bejesky, Currency
Cooperation and Sovereign Financial Obligations, 24 FLA. J. INT’L L. 91, 113 (2012)
[hereinafter Bejesky, Currency Cooperation]; Peter Drier, Reagan’s Real Legacy, THE
NATION, Feb. 4, 2011, http://www.thenation.com/article/158321/reagans-real-legacy.
37. Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 10716, June 7, 2011, 115 Stat. 38.
38. Charles Tiefer, Congress’s Transformative ‘Republican Revolution’ in 20012006 and the Future of One-Party Rule, 23 J. L. & POLITICS, 233, 234 (2007)
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tax system. The rush of mammoth tax cuts primarily for the
upper tax brackets evaded comprehension about just how they
occurred or what they were. This is no accident. 39
The 2001 budget resolution conferred a $1.35 trillion tax cut
without an attempt to reconcile and offset deficits. 40 Legislation
adopted between 2003 and 2006 provided additional tax cuts. 41
The United States went from a current account surplus under
President Clinton to a $400 billion deficit in 2004 under President
Bush, and Senator Robert Byrd emphasized that this economic
descent was predominantly due to a “massive [two] trillion dollar
tax cut bill mostly benefitting the wealthy.” 42 Byrd continued:
Even worse, the tax cuts held an enormous lie – deliberately
disguising their true size and effect on the budget by
backloading them. Over [seventy-two] percent of the
revenue losses from the tax cuts were set to occur between
fiscal years 2007 and 2011, when George W. Bush would be
well off the political stage. Also in place will be deficits in
the Social Security trust fund and the Medicare trust fund –
right around the 2010-15 time period. One has to marvel at
the utter recklessness . . . 43
Indeed, from 2009 to 2011, President Obama and Congress
periodically deliberated proposals to confront the tax cuts, which
had been inserted into bills and discussed behind closed doors
with “lobbyists for the benefited well-off interests.” 44 Not all
beneficiaries appraised that the tax cuts were in America’s best
interest. In November 2010, and on the same day that the Center
for Responsible Politics revealed that half of the members of the
Senate and House were millionaires, a group of forty millionaires,
calling themselves “Patriotic Millionaires for Fiscal Strength,”
wrote a letter to President Obama and requested that he
discontinue Bush’s tax cuts and increase taxes on the richest
39. Id. at 249.
40. Id. at 252; Robert M. Ackerman, Taking Responsibility, 4 TENN. J. L. & POL’Y
11, 33 (2007) (Bush’s “tax breaks and pork-barrel expenditures continued”).
41. Ajay K. Mehrotra, The Price of Conflict: War, Taxes, and the Politics of Fiscal
Citizenship, 108 MICH. L. REV. 1053, 1053-54 (2009).
42. SENATOR ROBERT C. BYRD, LOSING AMERICA 27-28 (2004); Jonathan
Weisman, The Tax Cut Pendulum and the Pit, WASH. POST, Oct. 8, 2004, at A1.
43. BYRD, supra note 42, at 28.
44. Tiefer, supra note 38, at 249.
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Americans. 45 For global prosperity issues, during the Bush
Administration’s tenure, the developing world debt crisis again
garnered global attention. 46 Fifty-four countries were poorer in
2000 than they were in 1990. 47 Budgetary problems ostensibly
configured during the Bush Administration as an inaugural
transfer to the Obama Administration may also have reduced
attention from global economic problems.
B. Security Threats
Presidents Richard Nixon, Ronald Reagan, George H.W.
Bush, and George W. Bush have all been criticized in various
ways for their management of the economy. 48 Less effective
45. Joe Conason, “Patriotic Millionaires” Call for Their Tax Cuts to Expire,
SALON, Nov. 18, 2010, http://www.salon.com/2010/11/18/millionaires.
46. Bejesky, Currency Cooperation, supra note 36. See generally Randall
Peerenboom, Human Rights and Rule of Law: What’s the Relationship?, 36 GEO. J.
INT’L L. 809, 830 (2005) (discussing debt forgiveness as a facet of developmentalredistributional rule of law).
47. Peerenboom, supra note 46, at 857.
48. Nixon presided over the deficits from the Vietnam War and breached on the
Gold Standard. Bejesky, Currency Cooperation, supra note 36, at 106. Reagan led the
deregulation era. In 1981, Reagan urged large spending cuts and tax cuts. Tiefer,
supra note 38, at 250; Bejesky, Politico, supra note 10, at 99; Bejesky, Currency
Cooperation, supra note 36, at 96 n.37. Bush Jr. blamed bloated bureaucracy and
sought to privatize up to nearly a million civilian positions, but this may decrease the
number of government officials to conduct oversight of privatized and contracted
functions. Paul R. Verkuil, Public Law Limitations on Privatization of Government
Functions, 84 N.C.L. REV. 397, 418, 439-40 (2006). The assumption is that the
market will work itself out, but deregulation, such as during the Reagan
administration’s deregulation era, may have been instrumental to the hundred
billion dollar default and Savings and Loan scandal. Bejesky, Politico, supra note 10,
at 99. Then, Bush Jr. presided over the hundred billion dollar Fannie Mae and
Freddie Mac default and bailout. MARK JICKLING, CONG. RESEARCH SERV., RS 22950,
REPORT FOR CONGRESS, FANNIE MAE AND FREDDIE MAC IN CONSERVATORSHIP CRS 1
(2008), http://fpc.state.gov/documents/organization /110097.pdf. Subsequently, there
was a home “foreclosure crisis” that led Congress to pass a $700 billion bailout plan
for the financial sector that lacked adequate oversight. Sarah E. Barnes, Comment:
Categorizing Conflict in the Wartime Enforcement of Frauds Act: When Are We Really
at War?, 59 DEPAUL L. REV. 979, 979 (2010). Many believe that Clinton won the
presidential election in 1992 because of a poor economy during Bush Sr.’s tenure.
Molly J. Walker Wilson, Behavioral Decision Theory and Implications for the
Supreme Court’s Campaign Finance Jurisprudence, 31 CARDOZO L. REV. 679, 695
(2010). Many contended George Bush Sr. lost the 1992 election because he previously
made the promise “read my lips, no new taxes,” when other issues were more
prominent. Culture, hard lessons drive GOP’s anti-tax stand, FOXNEWS.COM, July 12,
2011,
http://www.foxnews.com/us/2011/07/12/culture-hard-lessons-drive-gops-antitax-stand/. In issue shifting, George W. Bush reflected on mistakes and among them
was a slow response to Hurricane Katrina and he complained, “it gave critics an
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economic policies under these presidents may be partially
explained by their overemphasis on security threats. 49 Democrats
prefer addressing domestic issues such as health care, minimum
wage increases, social issues, and environmental concerns; while
Republicans traditionally have placed more attention on national
security. 50 If security threats take prominent attention, then
domestic social issues might seem less poignant. 51 As military
spending escalated during the Bush Administration, 52 war
initiatives were patriotically extolled 53 and conjoined with the
virtues of cutting taxes. Two weeks after the invasion of Iraq,
House Majority Leader Tom DeLay, a Republican from Texas,
stated: “Nothing is more important in the face of a war than
cutting taxes.” 54 Military expenditures escalated to confront a
security threat that was ultimately nonexistent, and taxes were
concomitantly being cut. Professor Patsner wrote:
[T]he financing of the . . . conflict[s] has been with money
borrowed from overseas. Instead of raising taxes so that
American citizens were aware of the direct costs of this war
and its long-term veterans’ healthcare consequences, the
current Bush administration cut taxes for Americans and
shifted the burden for paying off our war debt to future
generations. 55
Prelude to Bush’s Election
opportunity to kind of undermine the presidency.” Alex Sundby, Bush Regrets Few
Decisions from Presidency, CBS NEWS, Nov. 8, 2010, http://www.cbsnews.com/8301503544_162-20022150-503544.html. As if a natural disaster led to political
misfortune and there were no other acts that caused political fallout.
49. See supra notes 26-30.
50. Alan Abramowitz & Kyle Saunders, Why Can’t We All Just Get Along? The
Reality of a Polarized America, 3 FORUM 8 (2005), http://www.dartmouth.edu
/~govt/docs/Abramowitz.pdf (seventy percent of Democrats but only eleven percent of
Republicans prefer diplomacy over the use of military force); Abe Silvers & Ian I.
Mitroff, Gap in world views of Democrats, Republicans, S.F. CHRON. (Mar. 14, 2010),
http://www.sfgate.com/politics/article/Gap-in-world-view-of-Democrats-Republicans3270387.php; Lydia Saad, Americans Still Prefer Republicans for Combating
Terrorism, GALLUP, Sept. 11, 2009, http://www.gallup.com/poll/122921/AmericansPrefer-Republicans-Combating-Terrorism.aspx; See infra notes 165-67.
51. Bejesky, Politico, supra note 10, at 96-102.
52. Michael E. O’Hanlon, Limiting the Growth of the U.S. Defense Budget: An
Alternative to the Bush Administration Numbers, BROOKINGS POLICY BRIEF SERIES
#95 1 (Mar. 2002), http://www.brookings.edu/papers/2002/03defense_ohanlon.aspx.
53. BYRD, supra note 42, at 64-65.
54. Editorial, The Budget Fight is Now, N.Y. TIMES, Apr. 3, 2003, at A20.
55. Patsner, supra note 14, at 360.
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Escaping meaningful criticism for this state is odd given the
prelude to the 2000 presidential election. American taxpayers
spent upwards of forty million dollars for long-running
Independent Counsel Investigations of President Clinton’s
alleged wrongdoings. 56 Allegations that were either officially
included in investigations or became media lore, include the
Whitewater land deal, foul play surrounding Vince Foster’s death
in the White House, Governor Clinton having knowledge of drugs
being smuggled through a remote airport in Arkansas, and that
Clinton sexually harassed Jennifer Flowers and Monica
Lewinsky. 57
Five years later, David Brock, who levied charges in the
national media and was a neoconservative who later abandoned
the movement, provided point-by-point responses to the charges
in a BBC documentary. 58 Brock maintained that Whitewater
involved “no criminal wrongdoing” and the accusations of
wrongdoing were “a complete inversion of what happened,” Vince
Foster committed suicide, and the Clintons did not smuggle
drugs. 59 The right-wing promoted the stories “because they were
having a devastating effect. . . . It was terrorism. Political
terrorism.” 60
The media relentlessly reported on Independent Counsel
Ken Starr’s investigations of President Clinton, but was rather
languid in purposefully examining apparent executive
wrongdoing during the Bush Administration. 61 When queried
56. Stephen Hedges & Vanessa Blum, Gao Puts Clinton Probe At $39.6 Million,
CHI. TRIB., Oct. 1, 1998, http://articles.chicagotribune.com/1998-10-01/news/
9810010098_1_convictions-and-guilty-pleas-whitewater-investigation-independentcounsel-kenneth-starr.
57. The Power of Nightmares, Part II: The Phantom Victory (BBC 2 television
broadcast Oct. 27, 2004) (transcript available at http://www.information
clearinghouse.info/video1038.htm).
58. Id.
59. Id.
60. Id.
61. Leslie Gielow Jacobs, Bush, Obama and Beyond: Observations on the Prospect
of Fact Checking Executive Department Threat Claims Before the Use of Force, 26
CONST. COMMENTARY 433, 453-54 (2010) (arguing that the media embraced the
threat claims, advocated for war, and stimulated patriotism); Louis Fisher, Lost
Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1226 (2005).
There may be conformity to patriotic sentiment and fear of offending viewers in a
time of war. Patriotism during wartime and a possible ingrained favoritism for
“states of chaos” that breeds viewership seemed to dominate the media. David L.
Altheide, The Mass Media, Crime and Terrorism, 4 J. INT’L CRIM. JUST. 982, 995
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over the American media’s deference to Bush, particularly
regarding false statements about WMDs in Iraq, John Walcott,
Washington Bureau Chief of McClatchy News, remarked that the
public “[does not want to] hear the President lied to them.” 62 This
is true, but the media actuated public interest in President
Clinton’s apparent misdeeds, 63 particularly by accentuating his
public statement that he “did not have sex with that woman
[Monica Lewinsky]”; 64 and that he arguably committed perjury
when he testified under oath in the Jennifer Flowers sexual
harassment case that “sex” only meant traditional intercourse. 65
There are distinctions among questionable behavior that
impact public policy, democratic choice, and the American tax
base; conduct involving personal ethics; and behavior that
disregards the rights of parties to a dispute or disrespects the
court system, such as with the crime of perjury under oath. 66
President Clinton’s controversy involved the latter two categories.
By comparison, the Bush Administration waged the Iraq War
without Security Council authorization; made false statements to
Americans regarding the security threat from Iraq; 67 violated
other laws and rules, such as non-derogable international human
(2006) (emphasizing pervasiveness of the “politics of fear”). The corporate media may
be captured by corporate capitalist interests. Robert Bejesky, Press Clause
Aspirations and the Iraq War, 48 WILLIAMETTE L. REV. 343, 359-61, 364-66, 390-94
(2012) [hereinafter Bejesky, Press Clause]; Saby Ghoshray, Illuminating the
Shadows of Constitutional Space While Tracing the Contours of Presidential War
Power, 39 LOY. U. CHI. L.J. 295, 325 (2008).
62. Bill Moyers Journal (PBS television broadcast June 6, 2008) (transcript
available at http://www.pbs.org/moyers/journal/06062008/transcript2.html).
63. Power of Nightmares, supra note 57. The media has pursued other similar
scandals. Mark Egan, Congressman Weiner Quits in Lewd Photo Scandal, REUTERS,
June 16, 2011, available at http://www.reuters.com/article/2011/06/17/us-usa-politicsweiner-idUSTRE75F3T320110617; Stephen M. Silverman, New York Governor
Spitzer Resigns Amid Sex Scandal, PEOPLE.COM, Mar. 12, 2008, http://www.people
.com/people/article/0,,20183518,00.html.
64. Seth F. Kreimer, “Torture Lite,” “Full Bodied” Torture, and the Insulation of
Legal Conscience, 1 J. NAT’L SEC. L. & POL’Y 187, 198 (2005) (comparing President
Clinton’s statement about sex with the Bush Administration’s representations that
torture and “cruel, inhuman or degrading treatment” was not being applied to
detainees).
65. Debra J. Saunders, The Rot Behind the Clintonian Façade, S.F. CHRON., Jan.
23,
1998,
http://www.sfgate.com/politics/article/The-Rot-Behind-The-ClintonianFacade-3328623.php.
66. Garrison v. Louisiana, 379 U.S. 64, 75 (1964).
67. Robert Bejesky, Weapon Inspections Lessons Learned: Evidentiary
Presumptions and Burdens of Proof, 38 SYRACUSE J. INT’L L. & COM. 295, 341-50
(2011) [hereinafter Bejesky, Weapon Inspections]; see supra note 5.
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rights by issuing orders that authorized abusive interrogation
methods of combatant-detainees; 68 and billed Americans
hundreds of billions of dollars for the Iraq War. 69 But when the
Senate Select Committee on Intelligence (“SSCI”) completed its
five-year investigation on the Iraq War, which acknowledged the
false statements, Chairman Rockefeller stated, “Democrats would
not formally prosecute the point against the administration
because doing so would automatically shut down relations
between the Legislative and Executive branches.” 70
Republicans were unconcerned with the end of the Clinton
Administration’s tenure and the relations between the branches.
They controversially interpreted President Clinton’s deeds and
apparent false statements as a “high crime and misdemeanor”
under the Constitution, and impeached him just one year before
Congressional
completing
his
eight-year
presidency. 71
Republicans asserted that President Clinton’s acts placed
immorality in government at an all-time high—the president
should not prevaricate to the public and should respect court
processes. 72 Impeachment proceedings may have influenced the
68. Michael P. Scharf, The Torture Lawyers, 20 DUKE J. COMP. & INT’L L. 389,
389 (2010); Leila Nadya Sadat, The Unlawful Enemy Combatant and the U.S. War
on Terror, 37 DENV. J. INT’L L. & POL’Y 539, 541 (2009). George Washington
University Public Interest Law Professor Jonathan Turley remarked: “These people
are sitting around regularly talking about something defined as a crime. . . . It was a
torture program . . . approved at the very highest level. . . . It’s always been a war
crimes trial ready to happen.” Countdown with Keith Olberman, (MSNBC television
broadcast on Apr. 10, 2008) (transcript available at http://www.msnbc.
msn.com/id/24068197/ns/msnbc_tvcountdown_with_keith_olbermann).
69. STIGLITZ & BILMES, supra note 9; Glanz, supra note 8.
70. J. Taylor Rushing, Intel Report to be Used Against McCain, THE HILL, June 5,
2008, http://thehill.com/homenews/news/15191-intel-report-to-be-used-against-mccai
n.
71. Michael C. Dorf, Iqbal and Bad Apples, 16 LEWIS & CLARK L. REV. 217, 224
(2010) (the “runaway investigation of President Clinton”); Jonathan Mermin, Free
But Not Independent: The Real First Amendment Issue for the Press, 39 U.S.F. L.
REV. 929, 954 (2005) (impeachment involved personal ethics issues). Political
divisions in Congress were at an all-time high, with Republicans portraying Clinton
as unethical, and Democrats defending Clinton for being a successful president, and
criticizing Republicans for invading the president’s personal life. Power of
Nightmares, supra note 57. It was the first time in American history that an elected
president was impeached for partisan and flimsy reasons. CHALMERS JOHNSON,
BLOWBACK 220 (2000).
72. Brian Bolduc, Why Newt Left the House, NAT. REV., Jan. 30, 2012,
http://www.nationalreview.com/articles/289552/why-newt-left-house-brian-bolduc
(noting that House Speaker Newt Gingrich was one of the most vociferous advocates
to impeach President Clinton, and that this unpopular impeachment process rose to
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tone for the 2000 presidential election and hoisted Bush to
victory.
Governor George W. Bush ran a campaign that insisted he
was an ordinary American country boy. 73 Bush rejected Clinton’s
peacekeeping missions (aka “nation-building” exercises) in foreign
policy, emphasized that he was not blemished as a Washington
insider, 74 and promised that he would be honest with the
American people to restore morality to the presidency. 75 Granted,
rational political candidates frequently accentuate the
weaknesses in opposition to garner public support and get
elected. 76 However, after President Bush was elected, the events
of September 11, 2001 [“9/11”] catalyzed an opportunity for
relatively unrestrained government action that wracked
campaign promises.
C. Emotion and Poll Approvals
Many events in American history have impelled and, at
such a level that Republicans effectively deposed Gingrich in 1998); Michael Doran,
The Closed Rule, 59 EMORY L.J. 1363, 1371 (2010); Gingrich Had Affair During
Clinton Probe, CBS NEWS, Feb. 11, 2009, http://www.cbsnews.com/2100-250_1622551861.html (“Newt Gingrich was having an extramarital affair even as he led the
charge against President Clinton over the Monica Lewinsky affair”); See Power of
Nightmares, supra note 57; See supra notes 57-60.
73. Julian E. Zelizer, 5 Myths About George W. Bush, WASH. POST, Nov. 7, 2010,
http://www.washingtonpost.com/wp-dyn/content/article/2010/11/03/AR201011030599
3.html (stating that “[d]uring his 2000 campaign against Vice President Al Gore,
then-Gov. Bush went to great lengths to depict himself as a down-home Texan . . .”);
William Schneider, About That Cowboy Rhetoric . . ., THE ATLANTIC, Jan. 2005,
http://www.theatlantic.com/magazine/archive/2005/01/about-that-cowboy-rhetoric/
303791/ (noting about the post-9/11 period, that Al Gore “criticized what he called
Bush’s ‘do-it-alone, cowboy-type reaction to foreign affairs,” and that “[c]ritics abroad
often [depreciatingly] portray Bush as a cowboy”).
74. During the 2000 presidential election campaign, Bush rejected nationbuilding operations, preferred a humble U.S. foreign policy, and opposed squandering
U.S. military force around the world; but he also quietly began devising plans to
depose the Iraqi government during the first National Security Council meeting in
January 2001. 60 Minutes, Bush Sought ‘Way’ to Invade Iraq?, CBSNEWS.COM, (Jan.
11, 2004), http://www.cbsnews.com/stories/2004/01/09/60minutes/main592330.shtml;
Bejesky, Politico, supra note 10, at 62-65; Bejesky, Weapon Inspections, supra note
67, at 363.
75. Poll: Majority questions Bush administration ethics, USA TODAY, Nov. 11,
2005,
http://www.usatoday.com/news/washington/2005-11-11-bush-poll_x.htm
(“Almost six in 10 say Bush is not honest,” but Bush “promised in the 2000 campaign
to uphold ‘honor and integrity’ in the White House.”).
76. See generally ANTHONY PRATKANIS & ELLIOT ARONSON, AGE OF PROPAGANDA:
EVERYDAY USE AND ABUSE OF PERSUASION 137 (2001).
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times, even vindicated the use of military force. For example, on
February 15, 1898, an explosion sunk the U.S. battleship Maine
in Havana Harbor, Cuba, and 266 crewmembers died. 77
Presuming the cause was a Spanish attack, the American press
spread a bellicose fervor and the Spanish-American war ensued. 78
On May 7, 1915, one year into World War I, Germany sank the
Lusitania, a British passenger ship transporting munitions,
killing 1,198 people, including 128 Americans. 79 The U.S. entered
the war two years later. The Japanese attack on Pearl Harbor
promptly led to U.S. involvement in World War II. 80 In 1964,
after an alleged attack on U.S. Navy vessels in the Gulf of
Tonkin, the Vietnam War followed days later. 81
77. The Maine’s captain believed there was an internal explosion, but after a
quick Navy investigation, the Secretary of the Navy declared the Spanish committed
“an act of dirty treachery.” PETER IRONS, WAR POWERS: HOW THE IMPERIAL
PRESIDENCY HIJACKED THE CONSTITUTION 90 (2005); CHALMERS JOHNSON, THE
SORROWS OF EMPIRE 40 (2004).
78. McKinley told Congress it had been destroyed “by an exterior explosion,” and
U.S. newspapers supplied a “war fever.” William Randolph Hearst’s New York
Journal published sketches that reenacted how Spain attached a mine to the Maine.
LOUIS FISHER, PRESIDENTIAL WAR POWER 42 (1995); GARTH S. JOWETT & VICTORIA
O’DONNELL, PROPAGANDA AND PERSUASION 104 (2006) (“Major daily newspapers
were first involved in a ‘series of incidents fomenting the Cuban insurrection (18951898). . .[and were] accused of having created an extreme war psychosis in the minds
of the American people, leading up to the mysterious sinking of the battleship
Maine . . .’“); IRONS, supra note 77, at 90; JOHNSON, supra note 77, at 40; Gregory P.
Magarian, The First Amendment, the Public-Private Distinction, and
Nongovernmental Suppression of Wartime Political Debate, 73 GEO. WASH. L. REV.
101, 109 (2004) (“William Randolph Hearst helped ignite the Spanish-American War,
through selective reporting and outright fabrications . . . .”).
79. FREDERICK C. LUEBKE, BONDS OF LOYALTY: GERMAN-AMERICANS AND WORLD
WAR I 131 (1974) (“no event in World War I stirred American emotions more
profoundly”). The U.S. declared neutrality, the Germans forewarned that vessels
carrying munitions would be attacked, and the Lusitania was carrying six million
rounds of U.S. ammunition and 1,248 cases of artillery shells bound for Britain.
IRONS, supra note 77, at 102-04. U.S. Secretary of State William Jennings Bryan
advised President Wilson that Germany had every right to attack the Lusitania,
noting that “a ship carrying contraband should not rely on passengers to protect her
from attack – it would be like putting women and children in front of an army.” 33
THE PAPERS OF WOODROW WILSON 134-35 (Arthur S. Link, ed., 1974). Bryan’s
dissent was ignored and he resigned in December 1915 as Wilson sent army and
navy expansion plans to Congress based on his attempt to get the U.S. into the war.
80. Critics contended that President Roosevelt provoked the attack by freezing
Japanese assets and imposing an embargo on the sale of oil to Japan. B.H. LIDDELL
HART, HISTORY OF THE SECOND WORLD WAR 199, 202 (1970); White House
Statement and Executive Order No. 8832 (July 26, 1941), reprinted in 10 PUBLIC
PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 281 (1941).
81. Act of Aug. 10, 1964, Pub. L. No. 88-408, 78 Stat. 384 (repealed 1971).
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For the first six months in office, President Bush spent a
significant amount of time on vacation and fifty-five percent of
Americans thought he was taking too much time off. 82 During his
first eight months as president, approval ratings hovered between
fifty and sixty percent, 83 but immediately following the 9/11
attacks, ratings soared above ninety percent. 84 Senator Robert
Byrd described that Bush entered office after a virtual tie
election, but after 9/11 the “shock, trauma, and fear among the
American people, the surge of patriotism, and the sense of
common danger: all of these quickly catapulted this rather
inarticulate, directionless man . . . to [an elevated] level of
power.” 85 He emerged from the election as an ordinary country
boy to become a leader who would be tasking career security
officials in the FBI, CIA, Pentagon, police, and other securityrelated agencies with obligations.
After gradually descending, two days after the invasion of
Iraq, President Bush’s approval rating rose to seventy percent
while the percentage of Americans who believed that the U.S.
would be the victim of another major terrorist attack sharply
increased. 86 A security threat atmosphere does ostensibly boost
political support, 87 but Bush’s approval ratings dropped below
fifty percent (September 2005), to thirty to thirty-five percent
(May 2007), 88 and to twenty-eight percent (April 2008). 89
82. David W. Moore, Public Critical of Bush’s Vacation Plans, GALLUP (Aug. 7,
2001), http://www.gallup.com/poll/4774/Public-Critical-Bushs-Vacation-Plans.aspx.
83. Id.
84. Steven Ruggles, Historical Bush Approval Ratings (2001-2008),
http://www.hist.umn.edu/~ruggles/Approval.htm (last visited Oct. 15, 2012).
85. BYRD, supra note 42, at 20; Irene Zubaida Khan, The 2007-2008 Mitchell
Lecture: The Rule of Law and the Politics of Fear: Human Rights in the Twenty-First
Century, 14 BUFF. HUM. RTS. L. REV. 1, 3, (2008) (“Playing on people’s fears allows
the political leaders to consolidate their power, to create false certainties and to
escape accountability.”).
86. RUGGLES, supra note 84; Terrorism in the United States, GALLUP, (last visited
Oct. 9, 2012), http://www.gallup.com/poll/4909/Terrorism-United-States.aspx.
87. Humphrey Taylor, Successful War Lifts Many (Republican) Boats and Their
Ratings
Surge,
HARRIS INTERACTIVE,
at
1-3,
Apr.
18,
2003,
at
http://www.harrisinteractive.com/vault/Harris-Interactive-Poll-Research-SuccessfulWar-Lifts-Many-Republican-Boats-and-Their-Ratings-Surge-2003-04.pdf
(finding
that Republicans generally saw a surge in their approval ratings); See, e.g, supra
notes 26-30 (noting approval increases during the Reagan and Bush Sr.
Administrations).
88. RUGGLES, supra note 84; Bush Approval Rating Hits New Low, USA TODAY,
May 8, 2006, http://www.usatoday.com/news/washington/2006-05-08-bush-approval
_x.htm; Joel Roberts, Bush Approval Rating At New Low, CBSNEWS.COM, Feb.11,
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Diminishing public approval may have been due to Americans
gradually registering the depth of false statements that led to the
Iraq War. Bush departed with twenty-two percent approval
ratings, and these low ratings were due to Iraq and poor domestic
economic conditions. 90 The next Part considers the politics of the
war powers in the Authorization for Use of Force Against Iraq
[“Authorization”].
III. THE IRAQ WAR
A. Advocacy Prior to the Authorization for Use of
Force
Justice Jackson wrote of the war power:
No one will question that this power is the most dangerous
one to free government in the whole catalogue of powers. . . .
It is executed in a time of patriotic fervor that makes
moderation unpopular. . . . Always . . . the Government
urges hasty decision to forestall some emergency or serve
some purpose and pleads that paralysis will result if its
claims to power are denied or their confirmation delayed. 91
Alternatively, deliberative democracy theory necessitates
that political decisions be justified to those who must accept the
consequences of the decisions. 92 Implicit in this theory is that a
public policy will be more acceptable if pluralistic voices advocate
interests and positions 93 with reasoning, justifications, and
2009, http://www.cbsnews.com/2100-500160_162-2384943.html.
89. Frank Newport, Bush Job Approval at 28%, Lowest of His Administration,
GALLUP, (Apr. 11, 2008), http://www.gallup.com/poll/106426/bush-job-approval-28lowest-adminstration.aspx.
90. Bejesky, Politico, supra note 10, at 31-34. In the context of President Bush
having 32% approval ratings, Stephen Colbert noted that there is a “well-known
liberal bias” in such statistics. Adam Benforado & Jon Hanson, Naïve Cynicism:
Maintaining False Perceptions in Policy Debates, 57 EMORY L.J. 499, 501 (2008).
91. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 146-147 (1948) (Jackson, J.,
concurring).
92. See generally Joshua Cohen, Deliberation and Democratic Legitimacy, in
DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 67 (James Bohman &
William Rehg eds., 1997); Seyla Benhabib, Toward a Deliberative Model of
Democratic Legitimacy, in DEMOCRACY AND DIFFERENCE: CONTESTING THE
BOUNDARIES OF THE POLITICAL 67 (Seyla Benhabib ed., 1996).
93. JOHN S. DRYSEK, DELIBERATIVE DEMOCRACY AND BEYOND: LIBERALS,
CRITICS, CONTESTATION 11 (2000); James Bohman, Citizenship and Norms of
Publicity: Wide Public Reason in Cosmopolitan Societies, 27 POL. THEORY 176 (1999).
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argumentation. 94 If the process is legitimate, there is shared
responsibility for policies, including if government action
progresses amiss. 95 Impediments to the deliberative democracy
process include exerting power and coercion to compel other
political actors to accept the position 96 and skewing informed
contemplation by offering false data and biased assumptions. The
same holds true for authorizing military action under war
powers.
It is not clear that Bush needed encouragement from his
party to support action against Iraq since he tasked his National
Security Council members with considerations to depose
Hussein’s regime in February 2001. 97 Nonetheless, some
Congressional Republicans pushed for military action against
Iraq shortly after 9/11. In December 2001, Republicans Lindsey
Graham and Porter Goss sponsored House Joint Resolution 75
within the House International Relations Committee, which
sought to deem an Iraqi refusal to permit U.N. inspectors to enter
the country and inspect facilities an “act of aggression against the
United States.” 98 The Act claimed that a “high risk exists that
Iraq has continued to develop weapons of mass destruction.” 99
Also in December, nine members of Congress (McCain, Helms,
Hyde, Shelby, Ford Jr., Lieberman, Lott, Gilman, and
Brownback) sent a letter to Bush urging confrontation with Iraq:
Saddam Hussein has reinvigorated his weapons programs.
Reports indicate that biological, chemical and nuclear
programs continue apace. . . The threat from Iraq is real,
and it cannot be permanently contained. For as long as
Saddam Hussein is in power in Baghdad, he will seek to
acquire weapons of mass destruction and the means to
deliver them. We have no doubt that these deadly weapons
94. Jon Elster, Introduction to DELIBERATIVE DEMOCRACY 1, 12 (Jon Elster ed.,
1998); JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A
DISCOURSE THEORY OF LAW AND DEMOCRACY 540 (William Rehg trans., 1996).
95. See generally AMY GUTMANN & DENNIS THOMPSON, WHY DELIBERATIVE
DEMOCRACY? (2004).
96. DRYSEK, supra note 93, at 2, 8.
97. The 2000 presidential election was a deadlock between Gore and Bush. Bush
specifically campaigned on not being involved in foreign nation-building operations to
distance himself from President Clinton. 60 Minutes, supra note 74; Bejesky,
Politico, supra note 10, at 62-65; Bejesky, Weapon Inspections, supra note 67, at 363.
98. H.R.J. Res. 75, 107th Cong. (2001).
99. Id.
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are intended for use against the United States and its allies.
Consequently, we believe we must directly confront
Saddam, sooner rather than later. 100
The White House lobbied members of Congress for an
invasion and some top officials maintained that unilateral action
would be taken against Iraq by summer 2002. 101 War plans and
discussions of troop deployments began in mid-2002. 102 More
aggressive rhetoric commenced at an American President and
British Prime Minister news conference on September 7, and
continued on the next day with Defense Secretary Rumsfeld, Vice
President Cheney, National Security Advisor Rice, and Secretary
of State Powell circulating the Sunday political talk shows and
offering a barrage of new security threat claims about Iraq. 103 The
allegations were a precursor to a presidential address to the
United Nations General Assembly on September 12, 104 riding the
coattails of 9/11 memorials. Neoteric allegations merged with
emotions and dangers from terrorism. 105 This sequence prefaced
the unveiling of the National Security Strategy, which alleged the
right to preemptive attacks against other countries, and an
anticipated address to Congress about the peril from Iraq. 106
100. Text: Letter Urging Action in Iraq, WASH. POST, Dec. 7, 2001,
http://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/iraq
letter_120701.html.
101. SHELTON RAMPTON & JOHN STAUBER, WEAPONS OF MASS DECEPTION: THE
USES OF PROPAGANDA IN BUSH’S WAR ON IRAQ 37 (2003); Bejesky, Politico, supra
note 10, at 62-70, 78-83; UK Cabinet Office Paper, Iraq: Conditions for Military
Action, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB328/II-Doc13.pdf; Patrick
Wintour, Short: I Was Briefed on Blair’s Secret War Pact, GUARDIAN, June 18, 2003,
http://www.guardian.co.uk/politics/2003/jun/18/iraq.iraq1; Daniel Eisenberg, We’re
Taking Him Out, TIME, May 5, 2002, http://www.time.com/time/world/article
/0,8599,235395,00.html.
102. Bejesky, Politico, supra note 10, at 65-69.
103. The chief allegation was that Iraq attempted to procure aluminum tubes that
allegedly could be used to enrich uranium for a nuclear weapons program. Bejesky,
Weapon Inspections, supra note 67, at 303-10; Walter Pincus & Dana Priest, Bush,
Aides Ignored CIA Caveats on Iraq, WASH. POST, Feb. 7, 2004, at A17,
http://www.washingtonpost.com/wp-dyn/articles/A20194-2004Feb6.html (noting that
“they [the Bush administration] made some of the most unequivocal assertions about
unconventional weapons before the October 2002 (NIE) was completed”).
104. President George W. Bush, Remarks at the United Nations General Assembly
(Sept. 12, 2002) (transcript available at http://georgewbush-whitehouse.archives.
gov/news/releases/2002/09/20020912-1.html).
105. Id.
106. NATIONAL SECURITY STRATEGY OF THE UNITED STATES 6 (Sept. 2002),
http://www.globalsecurity.org/military/library/policy/national/nss-020920.pdf.
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Senator Daschle remarked: “Every time the president
continues to speak out . . . he strengthens his case.” 107 Senator
Trent Lott stated: “As the president noted in his comments,
[there is a serious threat] . . . that has been gathering and
growing.” 108 Most Republicans stalwartly backed military action
from the beginning and some did not even care about evidence of
wrongdoing or WMDs. 109 Some Democrats were primed for
confrontation with Iraq, but most were reluctant to commit to a
use of force. 110 A New York Times editorial explained:
[T]he American people deserve some time to ponder the
matter and give the Security Council a chance to act . . . The
newly bellicose mood on Capitol Hill materialized almost
overnight. Last night, Democrats wanted the Security
Council to act first and were calling for measured
consideration of the political and military issues involved in
going to war. The haste . . . is clearly motivated by
campaign politics. Republicans are already running attack
107. CNN Live Event Special: Senators Lott, McCain React to Bush Speech on Iraq
(CNN television broadcast Sept. 12, 2002) (transcript available at
http://transcripts.cnn.com/TRANSCRIPTS/0209/12/se.06.html).
108. Id.
109. Dave Boyer, Congressmen Get “Troubling” Iraq Briefing; Daschle Brings Up
Vietnam, WASH. TIMES, Sept. 6, 2002, at A01; David Postman, Washington
Congressional Democrats Say They’re Wary of Attack on Iraq, SEATTLE TIMES, Aug.
28, 2002, at A12; Senator critical of slow debate on Iraq attack, CNN (Aug. 18, 2002),
http://articles.cnn.com/2002-08-18/politics/iraq.debate_1_weapons-inspectors-iraniraq-war-iraqi-president-saddam-hussein?_s=PM:ALLPOLITICS; U.S. Republicans
split over Iraq attack, BBC NEWS (Aug. 16, 2002), http://news.bbc.co.uk/2/hi/
middle_east/2197367.stm.
110. Democrat House Minority Leader Richard Gephardt explained: “After 12
years of Saddam Hussein’s defiance of United Nations resolutions, his regime’s new
offer to admit inspectors does not address my concerns about the threat he poses to
the United States and the international community.” Todd S. Purdum, U.S. Hurries;
World Waits, N.Y. TIMES, Sept. 18, 2002, at A18, available at
http://www.nytimes.com/2002/09/18/world/threats-and-responses-news-analysis-ushurries-world-waits.html?pagewanted=all&src=pm. Senator Lieberman explained
that he was “fully supportive of military action right now.” Anne Q. Hoy, Debate on
Presidential Power: Congress Struggles Over Iraq, NEWSDAY (Long Island, N.Y.),
Sept. 15, 2002, at A21. Senator Levin remarked: “I think the president has made a
strong case . . . for U.N. action here to enforce U.N. resolutions. That’s a very
different issue from whether we should go it alone.” CNN Late Edition with Wolf
Blitzer: Interview With Pervez Musharraf; Interview with Colin Powell: Levin, Warner
Assess War on Terrorism (CNN television broadcast Sept. 15, 2002) (transcript
available at http://transcripts.cnn.com/TRANSCRIPTS/0209/15/le.00.html); Postman,
supra note 109.
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ads against Democrats on Iraq. 111
The alleged jeopardy had a frail basis. United Nations
weapons inspectors left Iraq in 1998 and acknowledged that they
lacked evidence of Iraq possessing prohibited weapon
programs. 112 The SSCI later indicated that the U.S. Intelligence
Community (“IC”) was devoid of intelligence sources after
inspections ceased in 1998. 113 As claims intensified on September
9, 2002, SSCI member Dick Durbin addressed a letter to CIA
Director George Tenet to “direct the production” of an National
Intelligence Estimate (“NIE”) because “policymakers in both the
executive branch and the Congress will benefit from the
production of a coordinated, consensus document produced by all
relevant components of the Intelligence Community.” 114 An NIE
had never been produced that was devoted to Iraqi WMD
programs. 115 The work launched on September 12 at the National
Intelligence Office and under Tenet’s guidance. 116 Several
members of Congress objected to authorizing the use of force
without having more information, and disapproved of the
President speaking publicly about dangers without an NIE. 117
On September 19, 2002, Bush submitted his draft resolution
to Congress to authorize the use of military force, 118 and Congress
held hearings on the alleged threat. During September, top Bush
111. Editorial, The Politics of War, N.Y. TIMES, Sept. 20, 2002, at A26, available at
http://www.nytimes.com/2002/09/20/opinion/the-politics-of-war.html.
112. Bejesky, Weapon Inspections, supra note 67, at 301-03.
113. S. REP. NO. 108-301, at 24-25, 258-61, 417 (2004); Bejesky, Weapon
Inspections supra note 67, at 301-03, 332 n.182.
114. S. REP. NO. 108-301, at 298.
115. Id. (“The IC had not produced an in-depth, comprehensive, coordinated IC
assessment of Iraq’s WMD programs since the production of the December 2000
Intelligence Community (IC) Assessment. . .and had never produced an NIE devoted
to Iraq’s WMD programs.”). The CIA admitted that there was no “National
Intelligence Estimate [NIE] on Iraq and that it had not thought to prepare one for
over two years.” See also Eric Schmitt & Alison Mitchell, Threats and Responses:
Baghdad Arsenal: U.S. Lacks Up-to-Date Review of Iraqi Arms, N.Y. TIMES, Sept. 11,
2002, at A21, available at http://www.nytimes.com/2002/09/11/world/threats-andresponses-baghdad-arsenal-us-lacks-up-to-date-review-of-iraqi-arms.html.
116. REP. NO. 108-301, at 9, 12.
117. Id. at 12, 299; Louis Fisher, Deciding on War Against Iraq: Institutional
Failures, 118 POL. SCI. Q. 389, 396, 398 (2003); Pincus & Priest, supra note 103. To
the criticism about speaking prior to the production of an NIE, Tenet stated that he
sees Bush every morning to deliver the Presidential Daily Briefing and “he gets the
intelligence I provide.” S. REP. NO. 108-301, at 299.
118. Lewis & Reading-Smith, supra note 5.
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administration officials made approximately 300% more false
statements about threats from Iraq than in the previous
month. 119 In congressional debates, members, particularly
Republicans, similarly maintained that Iraq might develop
nuclear weapons within months, and posed an immediate threat
to Americans. 120 Politicians did not want to be responsible if Iraq
attacked the U.S. 121 with arsenals of chemical and biological
weapons 122 or if Iraq showed signs of connections to al-Qaeda
members. 123 CNN reported that the Executive’s advocacy elevated
political stakes: “He has democrats in a box . . . It’s very hard for
them to oppose the president, especially just weeks before the
November election.” 124 Congress tends to support presidents on
political initiatives more when public opinion polls are high. 125
B. The CIA’s White Paper
On October 1, 2002, and in a brisk three weeks, the IC
produced the NIE. 126 Since NIEs normally remain classified, and
are only available to select government officials, the CIA
produced a White Paper, Iraq’s Weapons of Mass Destruction
Programs, to “meet requests from Congress for an unclassified
version of the NIE.” 127 The White Paper was “substantially
similar to,” but “not nearly as detailed as” the NIE. 128 The White
Paper also excluded a list of caveats, equivocal language, and
dissenting opinions from the classified NIE. The SSCI report
acknowledged: “The Intelligence Community’s elimination of the
119. Id.
120. 148 Cong. Rec. H7178-H7179 (Oct. 8, 2002).
121. 148 Cong. Rec. H7189-H7200 (Oct. 8, 2002).
122. 148 Cong. Rec. H7178-H7179, H7184-H7186 (Oct. 8. 2002).
123. 148 Cong. Rec. H7268-H7274 (Oct. 8. 2002).
124. Jeffrey A. Botelho, Congressional Responsibility in Controlling the War
Machine, 21 ST. THOMAS L. REV. 305 (2008-2009) (CNN analyst also noting also that
Democrats were especially conflicted due to the memories of the Gulf of Tonkin
resolution).
125. HANS J. MORGENTHAU & KENNETH W. THOMPSON, POLITICS AMONG NATIONS:
THE STRUGGLE FOR POWER AND PEACE 153-54 (6th ed. 1985); Douglas Rivers &
Nancy L. Rose, Passing the President’s Program: Public Opinion and Presidential
Influence in Congress, 29 AM. J. POL. SCI. 183, 185 (1985).
126. S. REP. NO. 108-301 at 8, 11, 13, 299, 450 (Senators Rockefeller, Levin, and
Durbin explaining that the NIE, “prepared in just three weeks time, was a rushed
and sloppy product forwarded to members of Congress mere days before votes would
be taken to authorize the use of military force against Iraq”).
127. Id. at 286, 298 (Senator Durbin also asking Tenet to produce an unclassified
summary of the NIE for the public).
128. Id. at 286, 294.
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caveats from the unclassified White Paper misrepresented their
judgments to the public which did not have access to the
classified National Intelligence Estimate containing the more
carefully worded assessments.” 129 In short, the NIE generally
supported White House allegations, 130 and the White Paper was a
bit more aggressive.
Top administration officials are provided with classified
intelligence information in Presidential Daily Briefings
(“PDB’s”), 131 and can selectively release classified information,
possibly keeping controversial and weak foundations of the claims
classified. 132 SSCI members later remarked that the Bush
Administration was “selectively releasing and mischaracterizing
intelligence information that supported an Iraq-al-Qaeda
collaboration while continuing to keep information classified and
out of the public realm that did not.” 133 When security is at issue
and the executive is secretive, Congress and courts must be
deferential. 134 The president has control over whether intelligence
data that forms the threat claim remains classified or is
declassified, but members of Congress do not have such access. 135
Moreover, but for the select members of Congress who have more
privileged access and receive briefings, it is otherwise difficult for
Congress to even know what to request to obtain a more accurate
129. Id. at 295. Senate Select Committee on Intelligence members Rockefeller,
Levin and Durbin explained that eliminating the caveats and dissenting opinions
from its White Paper “misled the public” and that the CIA also “selectively
declassified information” favorable to the Bush administration. Id. at 457.
130. Bejesky, Intelligence, supra note 6, at 875.
131. S. REP. NO. 108-301 at 501. In addition to a public White Paper, there was a
one-page summary of the NIE for the president and 80 other members of the White
House. Id. The CIA would not provide a copy noting that “we will not provide any
materials written exclusively for the President or for the PDB [President’s Daily
Brief] readership.” Id. at 22; 501 (noting that the NIE was generated by “layering”
previous reports and “primarily using previous judgments without substantial new
intelligence reporting.”); S. REP. NO. 109-330 at 192 (2006). Presumably, the
President and other top officials attained their information to make the earlier public
claims from PDBs or other similar reports.
132. Bejesky, Intelligence, supra note 6, at 875-82; Robert Bejesky, National
Security Information Flow: From Source to Reporter’s Privilege, 24(3) ST. THOMAS L.
REV. (forthcoming 2012) (manuscript at 4-21) [hereinafter Bejesky, Flow]; Jacobs,
supra note 61, at 444-45.
133. S. REP. NO. 108-301, at 463.
134. Martha Minow, Outsourcing Power: How Privatizing Military Efforts
Challenges Accountability, Professionalism, and Democracy, 46 B.C. L. REV. 989,
1000 (2005).
135. Bejesky, Intelligence, supra note 6, at 877; Jacobs, supra note 61, at 442-43.
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understanding of the security threat. For example, Republican
Senator Graham, as a privileged member of Congress who could
request more detailed intelligence information, explained that he
obtained other classified information that tended to discount the
unequivocal NIE determinations. 136 Graham was able to
“complain that the administration’s and [the director of the CIA’s]
own statements contradicted the classified reports they had read,
[but] they could not say what was actually in those reports.” 137
Consequently, while Congress is unable to appraise the
underlying data used to produce the estimates, members,
including Democrats, used the declassified CIA White Paper to
ground their arguments on the floor of Congress. 138 One day
before the October 10 vote, Senator John Kerry remarked:
“According to the CIA’s report, all U.S. intelligence experts agree
that Iraq is seeking nuclear weapons. There is little question that
Saddam Hussein wants to develop nuclear weapons.” 139 Hillary
Clinton stated: “In the four years since the inspectors left,
intelligence reports show that Saddam Hussein has worked to
rebuild his chemical and biological weapons stock . . . and his
nuclear program. He has also given aid, comfort and sanctuary to
terrorists, including al-Qa’ida members.” 140 Senator Rockefeller
assessed: “I have come to the inescapable conclusion that the
threat posed to America by Saddam’s weapons of mass
destruction is so serious that despite the risks and we should not
minimize the risks we must authorize the President to take the
necessary steps to deal with that threat . . . I do believe Iraq
136. Mark A. Chinen, Secrecy and Democratic Decisions, 27 QUINNIPIAC L. REV. 1,
49-50 (2009).
137. Id. at 50.
138. Julie Hirschfeld Davis, CIA report on Iraq opens Congress talks, BALT. SUN,
Oct. 9, 2002, at 1A, available at http://articles.baltimoresun.com/2002-1009/news/0210090087_1_saddam-hussein-iraq-bush.
139. S. REP. NO. 110-345 at 104 (2008) (citing Senator John Kerry, October 9,
2002) (“The more difficult question to answer is when Iraq could actually achieve this
goal. That depends on his ability to acquire weapons-grade fissile material. If Iraq
could acquire this material from abroad, the CIA estimates that it could have a
nuclear weapon within 1 year . . . . In addition, Iraq is developing unmanned aerial
vehicle (“UAVs”), capable of delivering chemical and biological warfare agents.”).
140. Id. at 103; Bill Moyers Journal, Buying the War, PBS television broadcast
Apr.
25,
2007)
(transcript
available
at
http://www.pbs.org/moyers/
journal/btw/transcript1.html) (Statement made by Senator Hillary Clinton on floor of
Senate, October 10, 2002) (“It is clear, however, that if left unchecked, Saddam
Hussein will continue to increase his capacity to wage biological and chemical
warfare, and will keep trying to develop nuclear weapons.”).
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poses an imminent threat.” 141 Senator Charles Schumer opined:
“Hussein’s vigorous pursuit of biological, chemical and nuclear
weapons, and his present and potential future support for
terrorist acts and organizations . . . make him a terrible danger to
the people of the United States.” 142 Senator John Edwards
explained: “We know that he has chemical and biological
weapons . . . We know that he is doing everything he can to build
nuclear weapons, and we know that each day he gets closer to
achieving that goal.” 143
Significant opposition came from Democratic Senator Robert
Byrd, the longest serving Senator in U.S. history, who remarked:
“I will not give the benefit of the doubt to the President. I will
give the benefit of the doubt to the Constitution.” 144 Byrd
observed the evidentiary foundation and expounded: “And before
we put this great nation on the track to war I want to see more
evidence, hard evidence, not more Presidential rhetoric.” 145 Byrd
sought to precisely confine the Authorization to only permitting
the president to use military force if there was “a clear threat of
imminent, sudden, and direct attack upon the United States, its
possessions or territories, or the Armed forces of the United
States.” 146 In an October 10, 2002 New York Times, editorial,
Byrd wrote:
A sudden appetite for war with Iraq seems to have
consumed the Bush administration and Congress. . . . Are
we too feeble to resist the demands of a president who is
141. S. REP. NO. 110-345, at 103-05 (citing Senator John Rockefeller, CONG. REC.,
Oct. 10, 2002) (“There is unmistakable evidence that Saddam Hussein is working
aggressively to develop nuclear weapons within the next 5 years. . . . Saddam’s
existing biological and chemical weapons capability pose real threats to America
today, tomorrow. . . . He is working to develop delivery systems like missiles and
unmanned aerial vehicles that could bring these deadly weapons against U.S. forces
and U.S. facilities in the Middle East. He could make these weapons available to
many terrorist groups, third parties, which have contact with his government. Those
groups, in turn, could bring those weapons into the United States and unleash a
devastating attack against our citizens. I fear that greatly.”).
142. Id. at 103 (citing Senator Charles Schumer, CONG. REC., Oct. 10, 2002).
143. Id. (citing Senator John Edwards, CONG. REC., Oct. 10, 2002) (“Almost no one
disagrees with these basic facts: that Saddam Hussein is a tyrant and a menace; that
he has weapons of mass destruction and that he is doing everything in his power to
get nuclear weapons.”).
144. 148 CONG. REC. S9188 (daily ed. Sept. 25, 2002).
145. Bill Moyers Journal, supra note 140 (Statement on floor of Senate, Oct. 10,
2002).
146. 148 CONG. REC. 19697 (2002) (statement by Senator Byrd).
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determined to bend the collective will of Congress to his will
– a president who is changing the conventional
understanding of the term “self-defense”? . . . I have
searched for that single piece of evidence that would
convince me that the president must have in his hands,
before the month is out, open-ended Congressional
authorization to deliver an unprovoked attack on Iraq. I
remain unconvinced. . . . We must not yield to this absurd
pressure to act now, [twenty-seven] days before an election
that will determine the entire membership of the House of
Representatives and that of a third of the Senate. . . .
Because while it is Congress that casts the vote, it is the
American people who will pay for a war . . . 147
After the invasion, the evidentiary basis for the security
threat claims became public through a series of post-invasion
SSCI reports that took five years to complete. The SSCI
concluded either expressly or implicitly on virtually every point
that estimates “were not supported by the intelligence.” 148
Congress voted based upon an unclassified version of a hastily
produced NIE with substantively false data. 149 The CIA report
and restrictions endemic to the national security apparatus
granted cover to anyone who voted for the war if it turned out
badly. Congress cannot question the estimates without accessing
the data. Information asymmetries and compulsion necessarily
furnished a politicized vote.
C. A Politicized Vote
One scholar commented, “Democrats tried to propose
postponing the request [for a vote] until after the November 2002
election, but ultimately they relented when Republican members
of Congress started accusing them of playing politics with the
country’s national security.” 150 Louis Fisher wrote, “leading
147. Senator Robert C. Byrd, Congress Must Resist the Rush to War, N.Y. TIMES,
Oct. 10, 2002, http://www.nytimes.com/2002/10/10/opinion/congress-must-resist-therush-to-war.html.
148. Bejesky, Intelligence, supra note 6, at 875-82; Bejesky, Politico, supra note 10,
at 70.
149. S. REP. NO. 108-301, at 286.
150. Jide Nzelibe, Are Congressionally Authorized Wars Perverse?, 59 STAN. L.
REV. 907, 929 (2007); George Patrick Montgomery, Note, Law’s Making a Comeback:
A Chayesian Analysis of the Bush Administration’s Post-9/11 Interrogation Policy, 6
GEO. J.L. & PUB. POL’Y 333, 363 (2008) (“‘law as organization’ was hamstrung by
political affiliation. The Republican majority in Congress demonstrated an allegiance
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Democrats folded, one by one, looking less to constitutional
requirements than to their own political calculations.” 151 Senator
Byrd was vocal, but that may have been because he was not in
danger of losing his position. 152 Senator Mark Dayton
accentuated that “there appears to be no imminent threat to the
United States from Iraq” and the timing is intended for a
“political advantage in the upcoming election.” 153 Senator Patrick
Leahy said during the debates on the vote:
Many respected and knowledgeable people—former senior
military officers and diplomats among them—have
expressed strong reservations about this resolution. . . . But
they have not seen that evidence, and neither have I. We
have heard a lot of bellicose rhetoric, but what are the facts?
I am not asking for 100 percent proof, but the
administration is asking Congress to make a decision to go
to war based on conflicting statements, angry assertions,
and assumption based on speculation. 154
The president can escalate conflict and contour public
opinion. 155 The public was already primed on the issue of WMD
threats, which may have goaded members of Congress to vote in
accordance with constituent perceptions. Representatives’
foremost self-interest is getting reelected, 156 which means that
rationally acting politicians from both parties will respond to
to its party rather than to the constitutional architecture and its particular
institution”); Fisher, supra note 117, at 398 (President Bush remarking on
September 23, 2002 that Democrats are “more interested in special interests in
Washington and not interested in the security of the American people”). Richard
Gephardt, Democrat House Minority Leader, explained about the vote: “This should
not be about politics . . . We have to do what is right for the security of the nation.”
President George W. Bush, Speech: President, House Leadership Agree on Iraq
Resolution (Oct. 2, 2002) (transcript available at http://georgewbushwhitehouse.archives.gov/news/releases/2002/10/20021002-7.html).
151. Fisher, supra note 61, at 1215.
152. Nzelibe, supra note 150, at 933.
153. Senator Mark Dayton, Don’t rush Iraq Question, FARMER’S INDEPENDENT,
Oct. 9, 2002, http://news.google.com/newspapers?nid=1027&dat=20021009&id=
1UplAAAAIBAJ&sjid=vJMNAAAAIBAJ&pg=2953,4185094.
154. Ken Silverstein, Hillary: Vote for Me, I was Duped, HARPERS MAGAZINE, (May
6, 2007), http://harpers.org/archive/2007/05/hbi-90000033.
155. Michael A. Fitts, The Paradox of Power in the Modern State: Why a Unitary,
Centralized Presidency May Not Exhibit Effective or Legitimate Leadership, 144 U.
PA. L. REV. 827, 890 (1996).
156. DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 13 (1974).
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trends in public opinion. 157
A Republican president will campaign for Republican
candidates and appear in districts in contention, increasing the
political fortunes of the Republican Party. In late September
2002, CNN reminded that Bush had been campaigning for fellow
Republicans in an aptly titled article, Bush talks Iraq, stumps for
GOP in N.J. 158 Members of Congress will defend and support
presidents of the same party because of the coattail effect in
which members of the same party will benefit when presidential
approval ratings are high. 159 Republicans will support the
president’s agenda 160—a cohesion exists inside the parties, such
that members exhibit ideological allegiance and often vote along
party lines to bestow reciprocal support. 161 Since congressional
dissenters must confront collective action problems, 162 legislative
agendas may frequently be approved without robust opposition. 163
Members of Congress, including many Democrats, accepted
the threat allegations presumably either due to the intelligence
estimates and/or White House publicity regarding the dire threat.
One week after the CIA provided Iraq’s Weapons of Mass
Destruction Programs, Congress authorized the resolution to use
157. Jide Nzelibe, A Positive Theory of the War-Powers Constitution, 91 IOWA L.
REV. 993, 1002 (2006).
158. Suzanne Malveauz, Bush talks Iraq, Stumps for GOP in N.J., CNN, Sept. 23,
2002, http://articles.cnn.com/2002-09-23/politics/elec02.bush.iraq_1_gop-candidatesresolution-democrat-robert-torricelli?_s=PM:ALLPOLITICS; Davis, supra note 138
(“‘I believe we’re going to get a strong resolution, backed by both Republicans and
Democrats,’ Bush said at a campaign stop in Tennessee.”).
159. Jeffrey J. Mondak, Presidential Coattails and Open Seats: The District-Level
Impact of Heuristic Processing, 21 AM. POL. Q. 307 (1993); Jame E. Campbell & Joe
A. Sumners, Presidential Coattails in Senate Elections, 84 AM. POL. SCI. REV. 513
(1990).
160. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 65-66 (2006); Daryl
J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L.
REV. 2311, 2312-13, 2333-37 (2006).
161. MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER 18-20 (2003); Doran,
supra note 72, at 1407, 1429 (“the majority party cartelizes agenda control among
senior party members and exercises both negative agenda control – blocking
measures that divide the party – and positive agenda control – promoting measures
favored by a majority within the party”). Third-parties are effectively locked out of
the electoral cycle. David D. Allison, The Supremes Spoil the Libertarians’ Party, 41
TULSA L. REV. 291, 291-92, 312-13 (2005).
162. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48
ARK. L. REV. 23, 35 (1995).
163. BARBARA HINKLEY, LESS THAN MEETS THE EYE: FOREIGN POLICY MAKING
AND THE MYTH OF THE ASSERTIVE CONGRESS 80 (1994).
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force, which ostensibly would be activated if the conditions of the
Authorization for Use of Force were met. 164 Almost all
Republicans voted in favor of the Authorization. In the House,
215 Republicans and 81 Democrats voted in favor. 165 In the
Senate, forty-eight Republicans and twenty-nine Democrats voted
for it. 166 The White House extensively lobbied to pass the
resolution. 167 Professor Mermin wrote:
Democratic support for a Republican military intervention
is not compelling evidence that the policy advances
American interests, or even that a broad spectrum of elected
officials believe that it does. It may simply be that
reelection-seeking Democrats have made a strategic
decision not to criticize an American war. 168
D. Secretary
Presentation
of
State
Powell’s
United
Nations
After the vote, threat oratory in the U.S. remained high for
the next six months prior to war. 169 However, the diplomatic
milieu entailed U.N. inspectors reentering Iraq and providing
periodic updates that predominantly affirmed that Iraq was
cooperating, and that inspectors had not discovered anything that
credibly demonstrated Iraq possessed prohibited weapon
programs. 170 Bush administration officials countered the findings
by contending that intelligence indicated that Iraq was meshed in
denial and deception, U.N. teams were not sufficiently aggressive,
Iraq was uncooperative with inspectors, WMDs were hidden in
tunnel complexes and civilian neighborhoods, Iraqis were
transporting WMDs in vehicles, and intelligence was shared with
164. DIRECTOR OF CENTRAL INTELLIGENCE, IRAQ’S CONTINUING PROGRAMS FOR
WEAPONS OF MASS DESTRUCTION 1 (2002), http://www.gwu.edu/~nsarchiv/
NSAEBB/NSAEBB129/nie_first%20release.pdf; SENATE SELECT COMMITTEE ON
INTELLIGENCE, POSTWAR FINDINGS ABOUT IRAQ’S WMD PROGRAMS AND LINKS TO
TERRORISM AND HOW THEY COMPARE WITH PREWAR ESTIMATES 10-12 (2006),
http://intelligence.senate.gov/phaseiiaccuracy.pdf; See infra notes 181, 238-44.
165. Roll Call Vote in House on Iraq Resolution, N.Y. TIMES, Oct. 10, 2002,
http://www.nytimes.com/2002/10/10/international/10AP-IROL.html?pagewanted=all.
166. Senate
Roll
Call,
N.Y.
TIMES,
Oct.
10,
2002,
http://www.nytimes.com/2002/10/10/international/10AP-IROL.html?pagewanted=all.
167. Bruce Ackerman & Oona Hathaway, Limited War and the Constitution: Iraq
and the Crisis of Presidential Legality, 109 MICH. L. REV. 447, 459 (2011).
168. Mermin, supra note 71, at 958.
169. Bejesky, Weapon Inspections, supra note 67, at 317-19, 332-34, 360-62.
170. Id. at 321-27, 332-34.
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inspectors although data was also highly sensitive for inspectors
to possess. 171
Secretary of State Collin Powell’s address to the United
Nations on February 5, 2003 was the most official diplomatic
aggregation of the allegations. Expectations were high. Almost
sixty percent of Americans believed the content would be
important to diplomacy and the circumstances surrounding the
use of force against Iraq. 172 Fox’s Bill O’Reilly explained,
“opposition to removing Saddam is shrinking. Germany and
France are on the defensive, China is wishy-washy and Russia is
on board.” 173 The problem was analogous to Congress’s quagmire
when it voted for the Authorization in October 2002. Just as the
CIA report unhesitatingly relayed jeopardy to Congress, Powell
prefaced his address with the proviso that all statements were
facts and conclusions based on “solid intelligence.” 174
Investigations later disclosed that virtually nothing had been
verified. 175 Members of Congress and the United Nations had no
means to critique declarations premised on data veiled inside the
national intelligence apparatus.
Nonetheless, the media’s response was brimming with
drama before the presentation 176 and gushing with accolades
afterwards. 177 The American media called Powell’s discourse “A
Masterful Legal Summary,” “a Strong Credible and Persuasive
Case,” “A Powerful Case,” “An Ironclad Case . . . Succinct and
Damning Evidence,” “A Detailed and Convincing Argument,” “An
Overwhelming Case,” “A Compelling Case,” and “A Persuasive,
Detailed Accumulation of Information.” 178 The media expressed
171. Id. at 321-34.
172. Douglas M. McLeod, Derelict of Duty: The American News Media, Terrorism,
and the War in Iraq, 93 MARQ. L. REV. 113, 120 (2009).
173. Id. at 122.
174. Bejesky, Weapon Inspections, supra note 67, at 336-40.
175. Id.; Bejesky, Intelligence, supra note 6, at 875-82.
176. McLeod, supra note 172, at 121.
177. A former CIA analyst explained: “I was actually struck by both how
conservative they were. I think Colin Powell picked the evidence that he showed to
make sure that it could really be substantiated . . . . That said, there is far, far more
evidence out there. I think that the great success of Colin Powell’s presentation is I
think he made an incredibly compelling case using just the limited amount that he
actually showed.” McLeod, supra note 172, at 127.
178. Bill Moyers Journal, Interview with Jonathan Landay, Nat’l Sec.
Correspondent, (PBS television broadcast Apr. 25, 2007), (transcript available at
http://www.pbs.org/moyers/journal/btw/transcript1.html); McLeod, supra note 172, at
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that Powell proffered a “sinister nexus” between Iraq and alQaeda, “compelling evidence” of Iraqi deceit, and “a scathing
indictment of Iraq’s weapons programs and efforts to conceal
them from inspectors.” 179 Several members of Congress were
quoted, such as Senator Richard Lugar who called the
presentation “extremely powerful” and Senator Joe Biden who
labeled the oration an “irrefutable case.” 180
E. Growing Dissent
War powers discord unfolded and later intensified. Prior to
attack, members of Congress and interested plaintiffs attempted
unsuccessfully to obtain judicial review of the Authorization for
the Use of Force, 181 but the court observed precedent in preferring
not to intervene on political questions and war-making
authority. 182 Again, the Authorization specified conditions that
ostensibly had not been met. 183 In terms of Justice Jackson’s
resilient executive and legislative power sharing framework from
Youngtown Sheet & Tube Co. v. Sawyer—which places the
president’s power at the lowest ebb when going against
congressional will and within the “zone of twilight” when powersharing is ambiguous 184—the interactions during the Iraq War
authorization process exhibit the political reality, which is that
executive rhetoric can overwhelm a complaisant majority and
mute the dissenting minority in Congress. 185 Professor Jacobs
explained: “[A] pattern has developed whereby Presidents
persuade the Nation to consent to the use of force based upon
threat claims for which they are effectively unaccountable until
121-22, 126-27.
179. McLeod, supra note 172, at 124, 126.
180. Id. at 122.
181. Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub.
L. No. 107-243, 116 Stat. 1498 (2002) Doe v. Bush, 240 F. Supp. 2d 95, 96 (D. Mass.
2003), aff’d, 323 F.3d 133 (1st Cir. 2003), reh’g denied 322 F.3d 109 (1st Cir. 2003);
Jordan J. Paust, Use of Armed Force Against Terrorists in Afghanistan, Iraq, and
Beyond, 35 CORNELL INT’L L.J. 533, 548-56 (2002); IRONS, supra note 77, at 235-36
(claiming there was ambiguous authority and the October 2002 Congressional
resolution was not a declaration of war).
182. Nzelibe, supra note 157, at 997.
183. Ackerman & Hathaway, supra note 167, at 461-62; Bejesky, Weapon
Inspections, supra note 67, at 313, 355-57.
184. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).
185. Jules Lobel, Conflicts Between the Commander in Chief and Congress:
Concurrent Power Over the Conduct of War, 69 OHIO ST. L. J. 391, 408 (2008).
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after the decision had been made.” 186
Existing scholarship would presumably forecast that
Congress would vote as it did, and that support for the war would
remain sufficiently high to impede reversing the action even after
the espoused security threat justification for the war was proven
false. First, polls indicate that if presidents assert that a use of
force is required to alleviate danger to U.S. citizens, public
support for the action will be higher. 187 A wartime atmosphere
breeds a rallying around the flag dynamic. 188 Second, studies
confirm that once a president makes a foreign policy decision, at
least fifty percent of the public will support the decision
regardless of the nature of the decision. 189
Third, incumbents can attain favorable political benefits by
supporting the president’s agenda because the use of force
increases a president’s popularity rating. 190 Other representatives
and senators, particularly of the same party, may not controvert
the president on international affairs when they have local
constituents to appease. 191 Fourth, with these phenomena,
presidents will also have an enhanced ability to influence other
political elites in government to secure support. 192 Fifth, in order
to maintain a positive image of the Iraq conflict, the White House
prospered from operations that sought to craft public opinion,
including the Pentagon’s embedded reporter and military analyst
programs, the Bush Administration’s Video News Releases, and
Pentagon operations that controlled Iraqi media. 193
186. Jacobs, supra note 61, at 433.
187. Bruce W. Jentleson, The Pretty Prudent Public: Post-Vietnam American
Public Opinion on the Use of Military Force, 36 INT’L STUD. Q. 49, 51 (1992).
188. BRUCE RUSSETT, CONTROLLING THE SWORD: THE DEMOCRATIC GOVERNANCE
OF NATIONAL SECURITY 33-34 (1990); MUELLER, supra note 27, at 53; Brett Ashley
Leeds & David R. Davis, Domestic Political Vulnerability and International Disputes,
41 J. CONFLICT RESOL. 814, 816 (1997); John R. Oneal & Anna Lillian Bryan, The
Rally ‘Round the Flag Effect in U.S. Foreign Policy Crises, 1950-1985, 17 POL.
BEHAV. 379 (1995); Bradley Lian & John R. Oneal, Presidents, the Use of Military
Force, and Public Opinion, 37 J. CONFLICT RESOL. 277, 279-83 (1993).
189. CECIL V. CRABB & PAT M. HOLT, INVITATION TO STRUGGLE: CONGRESS, THE
PRESIDENT AND FOREIGN POLICY 18 (1980); NELSON POLSBY, CONGRESS AND THE
PRESIDENCY 25 (1964).
190. Lian & Oneal, supra note 188, at 277; Mueller, supra note 27, at 18.
191. Nzelibe, supra note 150, at 914.
192. Leeds & Davis, supra note 188, at 817.
193. See generally Robert Bejesky, Public Diplomacy or Propaganda? Targeted
Messages and Tardy Corrections to Unverified Reporting, 40 CAP. U. L. REV. 967, 9761009, 1035-41 (2012) [hereinafter Bejesky, PDP].
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Sixth, congresspeople who are inclined to dissent can be
confined by their previous position and be reminded of
inconsistencies. 194 For example, in the 2004 presidential election,
candidates Bush and Kerry held fundamentally analogous
positions on the Iraq War. In the first presidential debate, Kerry
was queried on the use of preemptive force and remarked that the
“president always has the right and always has had the right to
pre-emptive strike. . . . [Y]ou’ve got to do it in a way that passes
the test . . . [for] your countrymen . . . [and to] prove to the world
that you did it for legitimate reasons.” 195 Preemptive strikes are,
in fact, more controversial than this under international law than
is implied by this portrayal, but Bush injected contextual
innuendo about Iraq and retorted that Senator Kerry called our
allies a “coalition of the coerced and the bribed . . . Senator Kerry
last night said that America has to pass some sort of ‘global test’
before we can use American troops to defend ourselves. He wants
our national security decisions subject to the approval of a foreign
government.” 196 Bush’s insinuation sparked bickering over a red
herring. By the time of this presidential debate, it was well
known that there was no security threat from Iraq.
F. Elevated Dissent
Some members of Congress sought to immediately withdraw
troops from Iraq, 197 but that position did not prevail. However,
when war expenditures mount, the public is more apt to turn
against the president’s decision, impelling more members of
Congress to dissent. 198 A Harris Poll demonstrated that negative
public sentiment of Bush’s handling of the Iraq War grew
consistently from fifty (March 2004) to sixty percent (December
194. Nzelibe, supra note 154, at 1013 n.55 (Bush reminded Senator Kerry of his
vote in favor of using force during the 2004 presidential campaign).
195. Transcript of the Candidates’ First Debate in the Presidential Campaign, N.Y.
TIMES, Oct. 1, 2004, at A20, available at http://www.nytimes.com/2004/10/01/
politics/campaign/01dtext.html?_r=1&pagewanted=all&position=.
196. PBS Newshour: President Bush, Senator Kerry Hit the Campaign Trail After
the First Debate (PBS television broadcast Oct. 1, 2004), (transcript available at
http://www.pbs.org/newshour/bb/politics/july-dec04/snapshots_10-1.html).
197. JEREMY BRECHER, JILL CUTLER & BRENDAN SMITH, IN THE NAME OF
DEMOCRACY: AMERICAN WAR CRIMES IN IRAQ AND BEYOND 255 (2005); Woolsey: We
Must Do the Right Thing For Our Troops, CONGRESSWOMAN LYNN WOOSLEY (Oct.
16, 2003), http://woolsey.house.gov/index.cfm?sectionid=18&parentid=6&sectiontree
=6,18&itemid=530.
198. Timothy Y.C. Cotton, War and American Democracy: Electoral Costs of the
Last Five Wars, 30 J. CONFLICT RESOL. 616, 619-20 (1986).
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2005). 199 Also, during that period, a Gallup Poll found that almost
sixty percent of Americans wanted some or all troops withdrawn
from Iraq immediately. 200 Even as the Bush Administration
sought to maintain high support for the war, by the end of 2005,
“[o]pinion polls show[ed] that a majority of the population . . .
oppose[d] the decision to attack Iraq. A majority also want[ed]
troops brought home . . . .”201 In a November 2005 Washington
Post-ABC poll, Bush’s approval ratings dropped to thirty-nine
percent and fifty-eight percent of Americans had doubts about his
honesty. 202
Professor Douglas Kriner assembled a database of
Congressional hearings following the invasion of Iraq and
concluded that “critical oversight of the war was quite rare in the
conflict’s first year; indeed it was muted throughout the entire
period of Republican control of Congress.” 203 Americans strongly
disapproved of the Republican-led Congress, giving it a thirtyseven percent approval rating in March 2005. 204 Professor
Michael Duran details how majority rules and restrictions
permitted Republicans to thwart controversial issues,
particularly those relating to the war in Iraq, from reaching the
floor and introducing their preferred measure “to the floor
without any threat that it would be changed by floor
amendments.” 205
In October 2004, forty-one percent of Americans believed
that either the number of troops in Iraq should be decreased or
withdrawn, but by March 2006 this preference grew to sixty-eight
percent. 206 In the 2006 congressional election exit polls, seventy199. ANTHONY ARNOVE, IRAQ: THE LOGIC OF WITHDRAWAL 97 (2006) (referring to
Table 2).
200. Susan Page, USA is losing patience on Iraq, USA TODAY, June 12, 2005,
http://www.usatoday.com/news/washington/2005-06-12-poll_x.htm.
201. ARNOVE, supra note 199, at 96.
202. Richard Morin & Dan Balz, Trust in Bush’s integrity disintegrates, SYDNEY
MORNING HERALD (Nov. 5, 2005), http://www.smh.com.au/news/world/trust-in-bushsintegrity-disintegrates/2005/11/04/1130823398549.html.
203. Douglas Kriner, Can Enhanced Oversight Repair “The Broken Branch”?, 89
B.U.L. REV. 765, 778 (2009); Ariel Meyerstein, The Law and Lawyers as Enemy
Combatants, 18 FLA. J.L. & PUB. POL’Y 299, 332 (2007) (“Congress had for several
years remained ‘essentially silent’”).
204. Andrea Stone, Congress’ approval rating on the slide, USA TODAY, Mar. 14,
2005, http://www.usatoday.com/news/washington/2005-03-14-congress-poll_x.htm.
205. Doran, supra note 72, at 1391.
206. Americans on Iraq: Three Years On, WORLDPUBLICOPINION.ORG, 1, 10 (2006),
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four percent of Democrats wanted to withdraw troops from Iraq,
while only twenty-four percent of Republicans agreed. 207
Republicans had to choose whether to abandon or support Bush
on Iraq. 208 As experts predicted, Bush’s low approval ratings 209
translated into landslide victories for Democrats in the 2006
Congressional elections, giving Democrats control of both the
House of Representatives and Senate for the first time since
1994. 210 A record number of women retained or won seats and
women from the Democratic Party more heartily supported an
exit strategy position. 211 There was a high correlation between
district-level losses and legislators who voted for the war, 212 and
victories were viewed as a rejection of the Iraq War. 213
http://www.worldpublicopinion.org/pipa/pdf/mar06/USIraq_Mar06_rpt.pdf.
207. See America Votes 2006, CNN.COM, http://www.cnn.com/ELECTION/2006/.
208. Melinda A. Mueller, Gender Differences in the 2006 House Elections: The
Effect of Gender on Campaign Messages About the Iraq War, 31 T. JEFFERSON L.
REV. 53, 54 (2008).
209. Charlie Cook: Category 5 Hurricane Heads for House GOP, DAILY KOS, (Oct.
13, 2006 8:27PM), http://www.dailykos.com/story/2006/10/13/257212/-Charlie-Cook:Category-5-Storm-Headed-for-House-GOP; Marc Sandalow, Campaign 2006:
Democratic Congress no longer a long shot, S.F. CHRON., Sept. 3, 2006,
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/09/03/MNG4FKUMR51.DTL.
210. Doran, supra note 72, at 1367-68; Christian R. Grose & Bruce I.
Oppenheimer, The Iraq War, Partisanship, and Candidate Attributes: Explaining
Variation in Partisan Swing in the 2006 U.S. House Elections, 32 LEG. STUD. QUART.
531 (2007).
211. Mueller, supra note 208, at 63-65, 75 (calculating that thirty-eight percent of
Democrat women, sixty-seven percent of Democrat men, three percent of Republican
women, and four percent of Republican men supported “Need exit strategy” for Iraq;
and that only 1% of Democrat women and 0% of Democrat men represented a “‘Stay
the Course’ on the war” position); Women in the 2006 Elections, LAKE RESEARCH
PARTNERS at 1, 7 (Nov. 17, 2006), http://www.lspa.com/polls/pdf/Women%20
in%20the%202006%20Elections%20_%20Lake%20Research.pdf (noting that Iraq was
perceived as the most important issue facing Congress for 2007 and that women led
the way for change in the 2006 election and will be “directing the agenda for the new
Congress on Iraq, health care and retirement security”). There is also a significantly
higher percentage of women who are Democrats in Congress. Historical Data,
WOMEN IN CONGRESS, (last visited Oct. 15, 2012), http://womenincongress
.house.gov/historical-data/representatives-senators-by-congress.html?congress=110
(statistics representing that of those women holding a congressional office in 2007, 67
were Democrats and 26 were Republicans).
212. Grose & Oppenheimer, supra note 210, at 531. One would anticipate these
results from the theoretical literature on past elections. See generally R. DOUGLAS
ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION (1990); Jane Mansbridge,
Rethinking Representation, 97 AMER. POL. SCI. REV. 515 (2003); John R. Hibbing &
John R. Alford, The Electoral Impact of Economic Conditions: Who is Held
Responsible? 25 AMER. J. POL. SCI. 423 (1981).
213. Alan Cowell, Reactions From Abroad Set Conciliatory Tone, Seeing Vote as a
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G. Authority to De-Escalate or End War
Shortly after Democrats gained control of both Houses of
Congress in 2007, Congress sought to reduce the number of
troops in Iraq and eventually end the occupation. 214 Of course, it
may not be in a president’s self-interest to withdraw the military
from a conflict. A president could lose credibility, experience
negative populace reactions that erode approval ratings, 215
weaken the commander in chief power, or even have a legacy
smirched for seemingly losing a U.S.-initiated war.
Polls revealed that Americans’ rejection of the war and
occupation continued to rise to new highs. 216 In January 2007,
ABC News surveyed members of Congress who had voted for the
October 2002 Authorization and discovered that a substantial
percentage reversed their positions in hindsight, confirming that
the 2002 resolution would have been rejected with more accurate
intelligence estimates. 217 As with the repeal of the Gulf of Tonkin
Resolution for the Vietnam War, 218 Congress’s approval to use
force is revocable. Legislating and administering war powers is
not analogous to Congress endeavoring to wield an
Protest to Iraq Policy, N.Y. TIMES, Nov. 9, 2006, at A29, available at
http://www.nytimes.com/2006/11/09/world/europe/09global.html; World Sees Vote as
Rejection of Iraq Policy, N.Y. TIMES, Nov. 8, 2006, http://www.nytimes.com
/2006/11/08/world/09global.html?pagewanted=2.
214. Charles Tiefer, Can Congress Make a President Step Up a War?, 71 LA. L.
REV. 391, 415-16, 441-42 (2011).
215. James D. Fearon, Domestic Political Audiences and the Escalation of
International Disputes, 88 AM. POL. SCI. REV. 577, 581 (1994).
216. U.S. opposition to Iraq war hits new high: poll, REUTERS, July 10, 2007,
available at http://www.reuters.com/article/domesticNews/idUSN1031988020070710;
Jeffrey M. Jones, Latest Poll Shows High Point in Opposition to Iraq War, GALLUP
(July 11, 2007), http://www.galluppoll.com/poll/28099/latest-poll-shows-highpointopposition-Iraq-War.aspx (stating sixty-two percent of those polled said the United
States made a mistake in sending troops to Iraq, marking the first time that number
has topped sixty percent in a USA Today/Gallup poll survey).
217. Jake Tapper, Senate Regrets the Vote to Enter Iraq, ABC GOOD MORNING
AMERICA, (Jan. 5, 2007), http://abcnews.go.com/GMA/Politics/story?id=2771519
&page=1.
218. Act of January 5, 1971, Pub. L. No. 91-652, § 7, 84 Stat. 1942-43 (1971)
(amended 1972) (repealing the Gulf of Tonkin Resolution). In a statement to
Congress, as the Vietnam War was ending, Senator Fulbright remarked: “Insofar as
the consent of this body is said to derive from the Gulf of Tonkin Resolution, it can
only be said that the resolution, like any other contract based on misrepresentation,
in my opinion is null and void.” Lori Fisler Damrosch, On Democratic Ground: New
Perspectives on John Hart Ely: War and Responsibility: Comment: War and
Uncertainty, 114 YALE L.J. 1405, 1409 (2005).
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unconstitutional legislative veto over the actions of an
administrative agency. Congress can, and in fact has, escalated
and de-escalated war. 219 Professors Barron and Lederman
examined the past half-century of precedent in U.S. military
conflicts and concluded that “if a war goes badly, or if concerns
about its wisdom become significant, the modern Congress has
been willing – more than in previous eras – to temper or
constrain the President’s preferred prosecution of the war, and
sometimes even to contract or end the conflict contrary to the
President’s wishes.” 220 An initial Congressional authorization to
use the military does not end Congress’s authority. As the
Supreme Court’s plurality in Hamdi v. Rumsfeld held, “a state of
war is not a blank check for the president.” 221
In early 2007, Steny H. Hoyer, House majority leader,
discussed “revising the authorization . . . to use military force.” 222
Senator Hillary Clinton cited the false threat allegations about
Iraq when she stated, “I was duped” by the administration into
voting for the war resolution, and offered a bill to revoke the
Authorization for the Use of Force. 223 The White House instead
proposed “send[ing] more than 20,000 new combat troops to Iraq,”
and the House of Representatives formally renounced the plan. 224
In late April 2007, Congress passed a bill requiring U.S.
troops to be completely withdrawn from Iraq within six
months, 225 but Bush vetoed the bill, which was only his second
veto in over six years. 226 The American people became irritated
219. Saikrishna Bangalore Prakash, The Separation and Overlap of War and
Military Powers, 87 TEX. L. REV. 299, 346-48 (2008).
220. David J. Barron & Martin S. Lederman, The Commander in Chief at the
Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding, 121
HARV. L. REV. 689, 692 (2008).
221. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004); Rosa Ehrenreich Brooks, War
Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age
of Terror, 153 U. PA. L. REV. 675, 700, 739 (2004) (Hamdi and Rasul resulted in a
“major blow to the Bush administration”).
222. Kate Zernike, Democrats Try to Increase Leverage Over Iraq Policy, N.Y.
TIMES, Jan. 27, 2007, at A8, available at http://www.nytimes.com
/2007/01/27/world/middleeast/27cong.html.
223. Silverstein, supra note 154.
224. Doran, supra note 72, at 1392 (noting that Democrats used “closed rules,”
which favor the majority party, to disapprove of the president’s “troop surge”
proposal); Jeff Zeleny & Michael Luo, A Divided House Denounces Plan for More
Troops, N.Y. TIMES, Feb. 17, 2007, at A1.
225. H.R. 1591, 110th Cong. § 1904(c), (e) (2007).
226. Id.; Anne Flaherty & Jennifer Loven, Bush vetoes troop withdrawal measure,
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with Congress, giving the body a thirty-five percent approval
rating in May 2007 because members did not do anything to
overcome Bush’s veto on Iraq. 227 Presumably following advice of
his appointed legal advisors who supported expansive power for
the president, 228 Bush asserted: “This legislation is
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.” 229 It was an
MILITARY TIMES, May 1, 2007, http://www.militarytimes.com/news/2007/05/
ap_bushveto_070501/.
227. Poll: Congress, Bush share low approval, NBC NEWS.COM (May 11, 2007)
http://www.msnbc.msn.com/id/18612770/ns/politics/t/poll-congress-bush-share-lowapproval/; Poll: 70 Percent Oppose More Troops in Iraq, NBC NEWS.COM (Jan. 11,
2007),
http://www.msnbc.msn.com/id/16578451/ns/politics/t/poll-percent-oppose-mo
re-troops-iraq/ (87% of Democrats and 42% of Democrats opposed increasing troops in
Iraq); Richard Benedetto, Bush’s Approve Rating Drops to 39%, Lowest of his
Presidency, USA TODAY, Oct. 18, 2005, http://www.usatoday.com/news/washington
/2005-10-17-bushapproval_x.htm.
228. Memorandum from John Yoo, Deputy Assist. Att’y Gen., Office of Legal
Counsel, U.S. Dept. of Justice, to Alberto Gonzales, Deputy Counsel to the President
(Sep. 25, 2001), available at http://www.justice.gov/olc/warpowers925.htm (Regarding
the War Powers Resolution and the September 2001 Authorization to Use Force, the
advisory opinion read: “Neither statute, however, can place any limits on the
President’s determinations as to any terrorist threat, the amount of military force to
be used in response, or the method, timing, and nature of the response. These
decisions, under our Constitution, are for the President alone to make.”); David
Luban, On the Commander in Chief Power, 81 S. CAL. L. REV. 477, 478 (2008) (“the
Bush Administration has made frequent dramatic appeals to the president’s
commander in chief power, arguing that his decisions as military commander in chief
in the global war on terror cannot and should not be second-guessed by other
branches of government”). Shifting attention off of Iraq and on a new security threat,
Bush further contended, “any statutory restrictions Congress might approve on the
use of force against Iran would be unconstitutional.” Barron & Lederman, supra note
220, at 711 [emphasis added]. Ely wrote: “[I]f Congress doesn’t approve of a war it
can pull the plug, and if the people don’t approve they can pressure Congress to do
so. Acquiescence by Congress (assuming there was such) cannot be deemed the
constitutional equivalent of acquiescence by the people.” John Hart Ely, The
American War in Indochina, Part II: The Unconstitutionality of the War They Didn’t
Tell Us About, 42 STAN. L. REV. 1093, 1123 (1990). In light of the Authorization for
Use of Military Force, in which Congress permitted the military to be used to respond
to the 9/11 attacks, many scholars expressed concern that other countries with
alleged contacts with al-Qaeda could be subject to attack. Authorization for Use of
Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001); Cass R. Sunstein,
Administrative Law Goes to War, 118 HARV. L. REV. 2663, 2664 (2005). Scholars
offered constitutional and legal framework arguments that restrained power. See
generally Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and
the War on Terrorism, 118 HARV. L. REV. 2047 (2005).
229. H.R. Doc. No. 110-31 at 153 CONG. REC. H4315 (May 2, 2007) (Veto Message
from the President); John Norton Moore, Do We Have An Imperial Congress?, 43 U.
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astonishing assertion, and perhaps a misrepresentation of the
proper separation of powers balance in war powers authority. 230
There were many problems with the president’s rebuff of
Congressional action. First, Congress was not infringing on the
Executive’s authority by micromanaging the commander in chief
authority, which in its purest sense means directing troops,
approving battle plans, or executing tactical battlefield
operations. 231 The constitutional collision involved the president’s
duty to execute congressional directives, which can only be
avoided when Congress ventures to utilize a power within the
sole prerogative of another branch of government. 232 If Congress
legislates, the president has a “high constitutional duty to see
that the laws are faithfully executed.” 233 The president’s
obligation is to carry out the nation’s laws, not to violate or
dismiss them. 234 In Hamdan v. Rumsfeld, the Court held that the
president “may not disregard limitations that Congress has, in
proper exercise of its own powers, placed on his powers.” 235
Second, while Congress’s recent authorizations to use force
“have been relatively short on substance and long on rhetoric,” 236
MIAMI L. REV. 139, 145-46 (1988) (“A series of attorney general opinions, and the
concept of unconstitutional conditions, refute the notion that the appropriations
power can be a valid basis for broad congressional claims of absolute plenary
authority.”).
230. Derek Jinks & David Sloss, Is the President Bound by the Geneva
Conventions?, 90 CORNELL L. REV. 97, 172 (2004) (“For the past eighty years, no
scholar has undertaken an in-depth analysis of the proper line of demarcation
between the Commander in Chief’s exclusive power over battlefield operations and
the areas where Congress and the President share concurrent authority.”);
Saikrishna Prakash, Regulating the Commander in Chief: Some Theories, 81 IND.
L.J. 1319, 1319-23 (2005) (there was no official examination of Bush’s contention).
231. Jinks & Sloss, supra note 230, at 171 (It is generally agreed “that the
President has exclusive authority over battlefield operations, and that Congress’s
war powers are constrained by the need to avoid interfering with the President’s
Commander-in-Chief power during wartime”).
232. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952).
233. U.S. CONST. art. II, § 1, cl. 7 (“Before he enter on the Execution of his Office,
he shall take the following Oath or Affirmation: - ‘I do solemnly swear (or affirm)
that I will faithfully execute the Office of President of the United States, and will to
the best of my Ability, preserve, protect and defend the Constitution of the United
States.’”); CONG. GLOBE, 31st CONG., 2d Sess. 828 (1851).
234. Hon. Elizabeth Holtzman, Abuses of Presidential Power: Impeachment as a
Remedy, 62 U. MIAMI L. REV. 213, 217-18 (2008) (arguing impeachable offenses for
Bush).
235. Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006).
236. Saikrishna Bangalore Prakash, Exhuming the Seemingly Moribund
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the Authorization contained conditions. The conditions, reiterated
verbatim by the president in his letter to comply with the fortyeight hour reporting requirement in § 3(b), were to (1) “protect
the national security of the United States against the continuing
threat posed by Iraq;” (2) “enforce . . . all relevant United Nations
Security Council resolutions regarding Iraq,” and be consistent
with the U.S. and other countries’ responses to 9/11. 237 Many
congresspeople regarded these as contingencies for the use of
force, and that the provisions were not per se endorsing
invasion. 238
For example, if the Authorization was intended to accord a
prompt right to attack, why did Congress discuss military
operation costs and appropriate funds immediately before
invasion 239 instead of at the time of voting for the Authorization?
Why did the invasion follow nearly six months after the
Authorization passed and after U.N. inspectors spent four months
searching for evidence of WMD programs? The Security Council
recognized the U.N. inspection findings, and did not authorize a
right to use force. 240 Rather than addressing the inadequate
factual basis to support the conditions in the Authorization, Bush
changed the reason for invasion to “liberating the Iraqi people”
and labeled the mission “Operation Iraqi Freedom.” 241 The
Authorization did not substantiate any such mission, and the
Security Council did not ponder the issue of humanitarian
intervention. 242 Professors Ackerman and Hathaway affirm that
this was a limited authorization to use force conditioned on there
Declaration of War, 77 GEO. WASH. L. REV. 89, 124 (2008). In both the 1991 and 2002
authorizations to use military force against Iraq, there were reasons for using force,
but no detail on how force would be employed. Authorization for Use of Military
Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (2002);
Authorization for Use of Military Force Against Iraq, Pub. L. 102-1, 105 Stat. 3
(1991).
237. Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub.
L. No. 107-243, § 3, 116 Stat. 1498 (2002); Letter from George W. Bush, President of
the U.S. to Congress (Mar. 19, 2003) (on file with Office of the Press Secretary),
available
at
http://georgewbushwhitehouse.archives.gov/news/releases/2003/03
/20030319-1.html.
238. Bejesky, Weapon Inspections, supra note 67, at 313 n.87, 355-57; Ackerman &
Hathaway, supra note 167, at 461-62.
239. Bejesky, Politico, supra note 10, at 84-87.
240. Bejesky, Weapon Inspections, supra note 67, at 344-50.
241. Id. at 360-62.
242. Ackerman & Hathaway, supra note 167, at 461-62; Bejesky, Politico, supra
note 10, at 102-04.
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being an actual imminent threat. 243 Thus, when the White House
began offering additional rationalizations, particularly of
humanitarian intervention, “such talk was blatantly inconsistent
with the plain language of the 2002 resolution.” 244 Official
investigations confirmed that there were no WMDs, or confirmed
ties between Iraq’s government and al-Qaeda. 245 Since these
conditions did not exist, 246 then perhaps Congressional authority
to implicate the commander in chief authority to engage in
hostilities against Iraq did not technically exist.
Third, one can scrutinize the timing of the beginning and
end of war. Congress could include a sunset clause in a use of
force authorization. 247 Congress did not do that and doing so
would have been peculiar in this case. The conventional
experience is as Justice Frankfurter wrote: “Congress leaves the
determination of when a war is concluded to the usual political
agencies of the Government.” 248 By that standard, possibly the
Iraq War was over, and hence Congress’s Authorization
terminated when Bush stood on the deck of the U.S.S. Abraham
Lincoln, and announced: “My fellow Americans, major combat
operations in Iraq have ended. In the battle of Iraq, the United
States and our allies have prevailed.” 249 Courts have recognized
this speech as the end of the war. 250 From this perspective, the
commander in chief authority pursuant to sanctioned war powers
ended in May 2003. After this point, the authority became less
about war and more about basing operations and occupation law,
including by executing U.N. Security Council Resolution 1483 for
one year of occupation. 251 Another point at which the conflict in
243. Ackerman & Hathaway, supra note 167, at 461-62.
244. Id. at 464.
245. Bejesky, Intelligence, supra note 6, at 818-19, 855-56, 858-59.
246. Ackerman & Hathaway, supra note 167, at 464; Bejesky, Weapon Inspections,
supra note 67, at 350-69; Bejesky, Intelligence, supra note 6, at 817-19.
247. Stephen I. Vladeck, Ludecke’s Lengthening Shadow: The Disturbing Prospect
of War Without End, 2 NAT’L SEC. L. & POL’Y 53, 102 (2006).
248. Ludecke v. Watkins, 335 U.S. 160, 169 (1948).
249. President George W. Bush, Address to the Nation on Iraq from the USS
Abraham Lincoln (May 1, 2003), in 39 WEEKLY COMP. PRES. DOC. 516, 516 (May 5,
2003).
250. See, e.g., United States v. Prosperi, 573 F. Supp. 2d 436, 455 (D. Mass. 2008).
The occupation ended one year later. See S.C. RES. 1546, ¶ 12, U.N. Doc. S/RES/1546
(June 7, 2004); CPA, The November 15 Agreement, Iraqi Governing Council-Coalition
Provisional Authority, http://www.iraqcoalition.org/government/AgreementNov15
.pdf.
251. S.C. RES. 1483, ¶¶ 24-27, U.N. Doc. S/RES/1483 (May 22, 2003).
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Iraq may have been over was with Security Council Resolution
1637 in November 2005. 252
A fourth and related intricacy that calls into question the
commander in chief authority derives from depending initially on
U.S. soldiers for operations and later on private contractors. An
abundant scholarship flourished over the absence of Pentagon
and Congressional oversight for the operations of private military
The
White
House
seemingly
gainsaid
contractors. 253
responsibility over private contractors 254 and the Coalition
Provision Authority that was constituted to implement
occupation measures. 255 The number of high-priced 256 private
252. S.C. RES. 1637, ¶ 1, U.N. Doc. S/RES/1637 (Nov. 11, 2005).
253. Minow, supra note 130, at 1024; Deven R. Desai, Have Your Cake and Eat It
Too: A Proposal for a Layered Approach to Regulating Private Military Companies,
39 U.S.F. L. REV. 825, 846 (2005) (“there is no government body overseeing [private
contractor] actions.”); Jon D. Michaels, Beyond Accountability: The Constitutional,
Democratic, and Strategic Problems with Privatizing War, 82 WASH. U. L.Q. 1001,
1052-53 (2004) (military privatization weakens Congress’s influence and U.S.
democracy).
254. JEREMY SCAHILL, BLACKWATER: THE RISE OF THE MOST POWERFUL
MERCENARY ARMY 47 (2007) (criticizing Bush Administration and the Justice
Department for their “refusal to hold mercenary forces accountable for their crimes
in Iraq”); Deborah Avant, What Are Those Contractors Doing in Iraq?, WASH. POST,
May 9, 2004, at B1 (Speaking of contractors involved in interrogations, “[w]e are not
even sure for whom these contractors work or worked. . .We do not know. . .to which
group or agency they were accountable”). During Congressional hearings, Secretary
of State Condoleezza Rice regretted that the State Department did not have a
framework to supervise security contractors. Karen DeYoung, On Hill, Rice Talks
About Blackwater, WASH. POST, Oct. 26, 2007, at A8. The Department of State’s
Bureau of Diplomatic Security was blamed for not providing adequate oversight of its
contractors, but apparently the president had granted the Department of State
“authority over all but military operations.” Karen DeYoung, State Department
Struggles To Oversee Private Army: The State Department Turned to Contractors
Such as Blackwater Amid a Fight with the Pentagon Over Personal Security in Iraq,
WASH. POST, Oct. 21, 2007, at A1; Jennifer K. Elsea, Moshe Schwartz & Kennon H.
Nakamura, CONG. RESEARCH SERV., RL32419, PRIVATE SECURITY CONTRACTORS IN
IRAQ: BACKGROUND, LEGAL STATUS, AND OTHER ISSUES 41-43, (updated Aug. 25,
2008), http://www.fas.org/sgp/crs/natsec/RL32419.pdf (describing a problem in
assessing responsibility as government agencies did not know which private firms
are under their control).
255. SPECIAL INSPECTOR GENERAL FOR IRAQ RECONSTRUCTION, HARD LESSONS:
THE
IRAQ
RECONSTRUCTION
EXPERIENCE
120
(Dec.
2008),
http://www.sigir.mil/files/HardLessons/Hard_Lessons_Report.pdf
(Armitage
remarked that Rice turned to Rumsfeld and asked him to direct Bremer to have him
carry out some initiatives. Rumsfeld remarked: “‘No, he [Bremer] doesn’t work for
me.’ She said, ‘Yes, he does. Who does he work for?’ And he [Rumsfeld] says, ‘he
works for the NSC.’” Rice then responded, “he works for you,” to which Rumsfeld
remarked, “No, he works for you.” ).
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contractors in Iraq steadily escalated from 20,000 (mid-2004), to
100,000 (December 2005), and to 180,000 (July 2007). 257 This
seemingly averts the prerogative for armed forces as enumerated
in the Constitution and potentially circumvents Congress’s
regulatory power regarding the size of the military, authority to
receive detailed updates and provide oversight, the right to
establish rules and discipline the military, oversee and control
appropriations, and other authorities. 258 Other than obsolete
Letters of Marque, there is no coherent basis for the unrestricted
and pervasive use of private contractors within Constitutional
war powers, 259 particularly when the Pentagon and the White
House did not effectively exert authority or responsibility for
contractor actions. 260 If the chain of command is premised on
derivative authority, with private contractors, it is not clear that
the president was exercising an effective commander in chief
authority over a large percentage of security operations in Iraq.
A fifth muddle is that Congress’s review of the pre-war
intelligence, which was an assessment of the justification for
executing the Authorization, was tardy and politicized. Had there
been an expeditious review of the data underlying the conditions
to use force, perhaps dissent and more scrutiny of operations in
Iraq would have intensified earlier. Congress’s first official call
for a probe into whether the White House manipulated pre-war
intelligence claims was in June 2003, but Republican members of
Congress blocked the query. 261 The SSCI became involved, and
256. CONG. BUDGET OFFICE, CONTRACTOR’S SUPPORT OF U.S. OPERATIONS IN IRAQ
14
(2008),
http://www.cbo.gov/ftpdocs/96xx/doc9688/08-12-IraqContractors.pdf
(private contractors make several times more than soldiers); Andrew Finkelman,
Suing the Hired Guns: An Analysis of Two Federal Defenses to Tort Lawsuits Against
Military Contractors, 34 BROOKLYN J. INT’L L. 395, 442-43 (2009); Michael N.
Schmitt, War, International Law, and Sovereignty: Reevaluating the Rules of the
Game in a New Century: Humanitarian Law and Direct Participation in Hostilities
by Private Contractors or Civilian Employees, 5 CHI. J. INT’L L. 511, 515 (2005).
257. T. Christian Miller, Contractors Outnumber Troops in Iraq, L.A. TIMES, July
4, 2007, http://articles.latimes.com/2007/jul/04/nation/na-private4 (180,000 private
contractors); Renae Merle, Census Counts 100,000 Contractors in Iraq, WASH. POST,
at D1, Dec. 5, 2006; Michaels, supra note 253, at 1004 (20,000 private contractors in
mid-2004); BRECHER, CUTLER, & SMITH, supra note 197, at 233; Daniel Ellsberg,
Truths Worth Telling, N.Y. TIMES, Sept. 28, 2004, http://www.nytimes.
com/2004/09/28/opinion/28ellsberg.html?_r=0 (140,000 Pentagon soldiers in Iraq in
2005).
258. Michaels, supra note 253, at 1062-76.
259. U.S. CONST., art. I, § 8, cls. 11-14, 18.
260. See supra notes 254-55, 258.
261. Helen Dewar & Peter Slevin, GOP rejects outside Iraq probe, WASH. POST,
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provided the first assessment of the WMD claims in July 2004,
which largely determined that pre-existing intelligence did not
sustain the estimates. 262 Amid more fervid congressional
insistence to deepen the analysis of the pre-war information, the
SSCI agreed in late-2004 to continue its investigation, but the
process was delayed for several months. 263 The SSCI completed
this portion of its review in September 2006, three-and-a-half
years after the invasion. 264 The White House and Republican
SSCI members apparently delayed the investigation at several
stages.
Senator Rockefeller remarked that the Bush Administration
interfered with the investigation. Rockefeller mentioned that
Cheney “exerted ‘constant’ pressure on the Republican former
chairman [Senator Pat Roberts] of the Senate Intelligence
Committee to stall an investigation,” “that he knew that the vice
president attended regular policy meetings in which he conveyed
White House directions to Republican staffers,” and that
Republicans on the committee “just had to go along with the
administration.” 265 In 2008, Rockefeller again contended that
Roberts was “stalling” and “halting the investigation” because the
report was “evidently a task too politically sensitive to handle.” 266
The last phase was the June 2008 SSCI report, which
chastised the Bush Administration’s false claims, but five
dissenting Republican members would not ratify the report and
complained that “none of these statements [to the contrary were]
considered worthy of analysis by the majority’s review staff.” 267 It
June 12, 2003, http://articles.chicagotribune.com/2003-06-12/news/0306120280_
1_iraq-probe-senate-intelligence-panel-chemical-and-biological-weapons.
262. S. REP. NO. 108-301, at 129, 187, 194, 236.
263. Rick Klein, Senate Probe of Prewar Intelligence Stalls, BOS. GLOBE, July 27,
2005, at A2.
264. See U.S. SENATE SELECT COMM. ON INTELLIGENCE, POSTWAR FINDINGS
ABOUT IRAQ’S WMD PROGRAMS AND LINKS TO TERRORISM AND HOW THEY COMPARE
WITH
PREWAR
ESTIMATES
10-12
(2006),
http://intelligence.senate.gov/
phaseiiaccuracy.pdf.
265. Jonathan S. Landay, Senator Says Cheney Delayed Investigation into Prewar
Intelligence, MCCLATCHY NEWSPAPERS, Jan. 25, 2007, http://www.mcclatchydc.
com/2007/01/25/162625/senator-says-cheney-delayed-investigation.html.
266. S. REP. NO. 110-345 at 89.
267. Id. at 104; Press Release, U.S. SENATE SELECT COMM. ON INTELLIGENCE,
SENATE INTELLIGENCE COMMITTEE UNVEILS FINALS PHASE II REPORTS ON PREWAR
IRAQ INTELLIGENCE (June 5, 2008), http://intelligence.senate.gov/press/record.
cfm?id=298775.
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was the White House that caused erroneous beliefs with an
estimated 935 false statements and hundreds other misleading
ones on over five hundred different occasions, and it is the White
House that controls the intelligence apparatus and can easily
classify and declassify the intelligence. 268 Had Americans been
provided with a more accurate depiction of the intelligence, the
SSCI probably would not have needed to expend five years
reviewing the details. And none of these Senators were
apparently present at the Bush Administration’s National
Security Council meetings in late January 2001 that began to
discuss deposing the Iraqi government. 269
H. Congressional Actions and Bush Administration
Responses
What could be done after Congress approved a bill to
withdraw troops, and Bush adamantly opposed the measure as
an infringement on the commander in chief authority?
Impeachment, 270 a pellucid ultimatum, 271 and cutting off funding
were all viable options to end the conflict. 272 Altogether ceasing
funding and requiring a plenary and abrupt withdraw would be a
harsh and emboldened measure. The more likely possibility is for
Congress to impose conditions and “relatively nuanced policy
changes” to make departure gradual. 273 For example, to fully end
the Vietnam War, and halt incursions into Cambodia and Laos, 274
appropriations legislation in 1973 contained the condition:
268. Bejesky, Press Clause, supra note 61, at 348-57.
269. Bejesky, Politico, supra note 10, at 62-65 (Based on former Secretary of the
Treasury Paul O’Neill’s whistleblower accounts).
270. As with Richard Nixon, impeachment is a remedy to remove the president.
Holtzman, supra note 234, at 213-17. Former Congresswoman Holtzman wrote: “As a
member of the House Judiciary Committee that undertook impeachment proceedings
against President Richard Nixon . . . we determined that ‘high crimes and
misdemeanors’ encompassed grave and serious abuses of presidential power. We
determined that the conduct did not have to be criminal; in other words, it did not
have to violate provisions of the U.S. Criminal Code.” Id. at 214.
271. Geoffrey Corn & Eric Talbot Jensen, The Political Balance of Power Over the
Military: Rethinking the Relationship Between the Armed Forces, the President, and
Congress, 44 HOUS. L. REV. 553, 598 (2007).
272. MARC E. SMYRL, CONFLICT OR CODETERMINATION?: CONGRESS, THE
PRESIDENT, AND THE POWER TO MAKE WAR 137 (1988); John C. Yoo, War and the
Constitutional Text, 69 U. CHI. L. REV. 1639, 1660 (2002) (“Congress could use its
appropriations power to enforce its own policies.”); Charles Tiefer, Can
Appropriations Riders Speed Our Exit from Iraq?, 42 STAN. J. INT’L L. 291 (2006).
273. Tiefer, supra note 272, at 293; Prakash, supra note 219, at 347-48.
274. Tiefer, supra note 214, at 427-28.
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Notwithstanding any other provision of law, on or after
August 15, 1973, no funds herein or heretofore appropriated
may be obligated or expended to finance directly or
indirectly combat activities by United States military forces
in or over or from off the shores of North Vietnam, South
Vietnam, Laos or Cambodia. 275
However, typical of mechanisms presidents have previously
adopted to circumvent budgetary allocation restrictions on
military operations, 276 after 2004 the White House evaded
budgetary accountability by obtaining over $50 billion a year,
mostly for Iraq, through the “emergency” supplemental
appropriation funding. 277 This enabled spending authorizations to
be allocated to broad categories. 278 Perhaps to end military
conflict against the will of the president, Congress might also
need to restrict general, discretionary funding.
Congress approved a $124 billion Iraq War funding bill and
attached a troop withdrawal timeline, but, on May 1, 2007, Bush
vetoed the bill. 279 Congress failed to override the veto by a twothirds majority, and Bush asserted: “I’m confident that we can
275. Act of July 1, 1973, Pub. L. No. 93-52 § 108, 87 Stat. 130, 134 (1973); Tiefer,
supra note 214, at 403. Senator Edward Kennedy remarked, “Iraq is George Bush’s
Vietnam.” Interview with Ambassador Barbara Bodine, 28 FLETCHER F. WORLD AFF.
17, 22 (2004).
276. In terms of executing the mission, in 1998, Colonel Richard D. Rosen wrote:
“To operational lawyers, the proposition that a presidential spending authority exists
independent of Congress is particularly alluring. During military operations, intense
pressure exists to find fiscal tools – any fiscal tools – to accomplish the mission. The
notion that either congressional inaction or congressionally prescribed prohibitions
may be disregarded is indeed seductive. If the proposition is sustainable, it would
greatly simplify the operational lawyer’s job, ensuring that, at least in situations the
President deems essential to national security, funding will always be available. . . .
[H]owever, neither the Constitution nor the nation’s experience supports such a
conclusion. Congress’s power to appropriate – while not plenary – is certainly
exclusive.” Colonel Richard D. Rosen, Funding “Non-Traditional” Military
Operations: The Alluring Myth of a Presidential Power of the Purse, 155 MIL. L. REV.
1, 13 (1998).
277. Charles Tiefer, The Iraq Debacle: The Rise and Fall of Procurement-Aided
Unilateralism as a Paradigm of Foreign War, 29 U. PA. J. INT’L L. 1, 48-49 (2007).
278. Ackerman & Hathaway, supra note 167, at 491; Tiefer, supra note 277, at 49
(“the administration deviously merged the Iraq and Afghanistan expenditures as one
‘war on terror,’ so the 9/11 provided cover for the Iraq war”).
279. PBS News Hour: President Bush Vetoes Iraq War Funding Bill (PBS
television broadcast May 1, 2007) (transcript available at http://www.pbs.
org/newshour/bb/politics/jan-june07/veto_05-01.html).
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reach agreement.” 280 During congressional hearings, many
members of Congress opposed proposals to send more troops. 281
Two weeks later, the showdown was finished, and Bush was able
to send more soldiers to Iraq, 282 and obtain another $100 billion
to fund the war with no pullout date. 283 Something as
rudimentary as increasing the number of soldiers was a strategic
solution to past mistakes, and was advanced as a fresh start. It
was similar to the Vietnam War in that “[w]ith each new
commitment [of more troops and new proposals] and then failure,
U.S. objectives would change and grow increasingly ill-defined
and vague . . . [T]hose involved in the . . . decision sought to
rationalize and justify their previous actions.” 284
Bush successfully opposed Congress’s gradualist egress
measures, seemingly because of perception management
maneuvers that paralleled tactics exploited during the Vietnam
War. Both the Johnson and Nixon Administrations linked
support for the troops with “loyalty to the government and its
policy in Southeast Asia, [and] impugned the loyalty of their
critics.” 285 Members of Congress resented this strategy of “do not
turn your back on the troops” during the Vietnam War, but the
280. President George W. Bush, President Bush Discusses Iraq War Supplemental
with Bicameral Bipartisan Leadership (May 2, 2007) (transcript available at
http://georgewbush-whitehouse.archives.gov/news/releases/2007/05/200705024.html).
281. Kriner, supra note 199, at 779; Carl Hulse & Jeff Zeleny, Senate Rejects Iraq
Troop Withdrawal, N.Y. TIMES, May 17, 2007, http://www.nytimes.com/2007/
05/17/washington/17cong.html (Senators opposing withdrawal of forces prevailed by
a 67-29 vote in the Senate).
282. Lolita C. Baldor, Pentagon tells 35,000: Prepare to deploy, MILITARY.COM,
May 9, 2007, http://www.military.com/NewsContent/0,13319,135068,00.html. In a
proposal that had been openly discussed for several months, Bush was able to deploy
21,500 additional troops to Iraq to quell discontent and maintain control over the
country. Commander in Diyala Wants More Troops, MILITARY.COM, May 11, 2007,
http://www.military.com/NewsContent/0,13319,135500,00.html?ESRC=topstories.RS
S; Lolita Baldor, Pentagon deploys more troops to Baghdad, USA TODAY, Mar. 7,
2007, http://www.usatoday.com/news/washington/2007-03-07-4060976629_x.htm.
283. Richard Cowan & Susan Cornwell, Democrats to fund Iraq war with no
pullout date, REUTERS, May 22, 2007, available at http://www.reuters.com
/article/2007/05/22/us-iraq-usa-funding-idUSN2039858620070522.
284. PRATKANIS & ARONSON, supra note 76, at 240.
285. Robert N. Strassfeld, Law, Loyalty, and Treason: How Can the Law Regulate
Loyalty Without Imperiling It?: Lose in Vietnam, Bring the Boys Home, 82 N.C. L.
REV. 1891, 1893, 1940 (2004). Nixon “temporarily evaded constraints on expanding
the Vietnam War” by using patriotism. Tiefer, supra note 272, at 340 (contending
there was a need to “protect the troops from enemy sanctuaries in Cambodia”).
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rhetoric still impelled Congress to continue funding. 286
Ultimately, none of the allotments for operations were “actually
intended to promote troop safety, but in reality advanced the
same policies of conducting a wider war that the public and
Congress had rejected.” 287 The Court in Mitchell v. Laird stated
that “[a] Congressman wholly opposed to the [Vietnam War’s]
commencement and continuation might vote for military
appropriations and . . . [even] draft measures because he was
unwilling to abandon without support men already fighting.” 288
Amid Congressional dissent over deploying more troops to
Iraq, Secretary of State Rice remarked: “I think the president is
going to, as commander in chief, need to do what the country
needs done. . . . I can’t imagine a circumstance in which it’s a
good thing that their [commanders in Iraq] flexibility is
constrained by people sitting here in Washington, sitting in the
Congress, trying to micromanage this war.”289 Vice President
Cheney asserted: “When members of Congress pursue an antiwar
strategy . . . they are not supporting the troops, they are
undermining them. . . . Anyone can say that they support the
troops and we should take them at their word, but the proof will
come when it’s time to provide the money.” 290 To defend the
“troop surge” proposal, Bush resorted to patriotism: “I believe
that members of Congress were sincere when they say they
support our troops, and now is the time for them to show that
support.” 291 Bush exerted the same stratagem during the 2004
286. John Hart Ely, The American War In Indochina, Part I: The (Troubled)
Constitutionality of the War They Told Us About, 42 STAN. L. REV. 877, 899-900
(1990).
287. Tiefer, supra note 272, at 340.
288. Mitchell v. Laird, 488 F.2d 611, 615 (D.C. Cir. 1973).
289. Fox News Sunday: Condoleezza Rice (FOX television broadcast Feb. 25, 2007)
(transcript available at http://www.foxnews.com/story/0,2933,254502,00.html).
290. Sheryl Gay Stolberg, Opposition Undercuts Troops, Cheney Says of Spending
Bill, N.Y. TIMES, Mar. 13, 2007, http://www.nytimes.com/2007/03/13/washington
/13cheney.html.
291. Richard Cowan & Susan Cornwell, U.S. Congress Wrestles with Deadlines to
End
Iraq
War,
REUTERS
(Mar.
15,
2007),
available
at
http://www.reuters.com/article/2007/03/15/idUSN15201098; See also Mueller, supra
note 208, at 54-55 (candidates sometimes had to tread carefully to avoid opposition
invoking “patriotism” and “support the troops” arguments); Andy Barr, Cleland ad
causes trouble for Chambliss, POLITICO, Nov. 12, 2008, http://www.politico.com/
news/stories/1108/15561.html (a Republican painted Senator Max Cleland as a friend
of Osama Bin Laden for not supporting Bush’s Department of Homeland Security
bill).
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presidential campaign against Democratic candidate Kerry after
he voted to reject funding: “[Senator Kerry] said the whole matter
about the $87 billion is a complicated matter. There’s nothing
complicated about supporting our troops in combat.” 292
Professors Lobel and Loewenstein explain that the
“immediate appeal of the ‘support our troops’ argument usually
outweighs any rational consideration of the merits of voting for or
against funding.” 293 Frankly, it is not evident what “supporting
the troops” means when public sentiment turned so forcefully
against the war. 294 Likewise, if it is a genuine reflection of U.S.
soldiers’ sentiment, a Zogby poll in March 2006 found that
seventy-two percent of U.S. troops in Iraq favored withdrawal
within a year. 295 Many members of Congress concluded that
supporting the troops meant bringing them home. Senator
Rockefeller reported that members of Congress would not have
“sent so many U.S. troops in harm’s way” had they known the
truth about the intelligence allegations. 296 Democratic House of
Representatives member John Murtha sponsored a bill to bring
U.S. soldiers home, opining that the war was a “flawed policy
292. President George W. Bush, President’s Remarks in Greeley, Colorado (Oct.
25,
2004)
(transcript
available
at
http://georgewbush-whitehouse.
archives.gov/news/releases/2004/10/20041025-4.html). There was an inner-party
rivalry during the 2004 presidential campaign when Senator Chuck Schumer
accused Senators Kerry and Edwards of leaving “our soldiers high and dry” after
they voted against continual funding. Michael Slackman, Schumer Casts Wide Net
Beyond
His
Democratic
Base,
N.Y.
TIMES,
Oct.
19,
2004,
http://select.nytimes.com/gst/abstract.html?res=F00612F9395E0C7A8DDDA90994D
C404482&fta=y&incamp=archive:article_related.
293. Jules Lobel & George Loewenstein, Emote Control: The Substitution of
Symbol for Substance in Foreign Policy and International Law, 80 CHI.-KENT L. REV.
1045, 1065 (2005); BYRD, supra note 42, at 64-65 (the massive military spending is
“[w]rapped in ‘patriotism’ and platitudes”). While many Democrats, such as Hilary
Clinton and Chuck Schumer later opposed the conduct of the war, they maintained
funding. Silverstein, supra note 154; Raymond Hernandez & Patrick D. Healy, The
Evolution of Hillary Clinton, N.Y. TIMES, July 13, 2005, http://www.nytimes
.com/2005/07/13/nyregion/13hillary.ready.html?pagewanted=all; Slackman, supra
note 292; Senate Won’t Vote on Objection to Troop Buildup, CNN, Feb. 17, 2007,
http://articles.cnn.com/2007-02-17/politics/iraq.senate_1_gop-senators-senatedemocrats-vote?_s=PM:POLITICS.
294. See supra Part III.(F)-(G).
295. Zogby Poll, U.S. Troops in Iraq: 72% Say End War in 2006, ZOGBY, Feb. 28,
2006,
http://www.zogby.com/news/2006/02/28/us-troops-in-iraq-72-say-end-war-in2006/.
296. PETER LANCE, COVER UP: WHAT THE GOVERNMENT IS STILL HIDING ABOUT
THE WAR ON TERROR 252 (2004); See Woolsey: We Must Do the Right Thing for Our
Troops, supra note 197.
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wrapped in illusion.” 297 Senator Kennedy remarked that Bush
and Cheney “have begun a new campaign of distortion and
manipulation. . . . The two men could not find weapons of mass
destruction . . . and they can’t find the truth, either.” 298
Republican Senator Gordon Smith, on the floor of the Senate,
expressed: “I, for one, am at the end of my rope when it comes to
supporting a policy that has our soldiers patrolling the same
streets in the same way, being blown up by the same bombs day
after day. . . . That is absurd. It may even be criminal. I cannot
support that anymore.” 299 American Enterprise Institute scholar
Norman Ornstein construed: “This is very significant . . . . What
this tells me is that Gordon Smith’s very stunning speech was in
some ways the tip of the iceberg.” 300 Former Senator Campbell
remarked: “we were leaned on pretty heavily by the
administration. . . . [I]f you didn’t support the president you
weren’t a good soldier . . . . So we got stampeded into doing
something, but unfortunately we didn’t have enough
international help.” 301
In addition to utilizing the phrase “support the troops,” the
Bush Administration defended the continuing occupation by
emphasizing obligations owed to the new Iraqi government.
Senator Clinton voted in favor of the invasion, but altered her
position during the occupation. 302 Clinton wanted clarity
regarding a withdrawal of troops from Iraq; however,
Undersecretary of Defense Eric Edelman responded to questions
of withdrawal by retorting that “premature and public discussion
of the withdrawal of U.S. forces from Iraq reinforces enemy
propaganda that the United States will abandon its allies in
Iraq.” 303 Approximately ninety percent of the invading troops,
Coalition Provisional Authority employees and occupation
soldiers were from the U.S., and polls consistently depicted that
297. Peter Jackson, Pa. Dem Murtha Remembered as Military Advocate, SEATTLE
TIMES, Feb. 8, 2010, http://seattletimes.nwsource.com/html/politics/2011015805
_apusobitmurtha.html.
298. Charles Babington, Hawkish Democrat Joins Call For Pullout, WASH. POST,
Nov. 18, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/11/17/AR
2005111700794.html.
299. Tapper, supra note 217.
300. Id.
301. Id.
302. See supra notes 140, 220, 293.
303. Editorial, The Iraq War Debate: The Great Denier, N.Y. TIMES, July 21, 2007,
http://www.nytimes.com/2007/07/21/opinion/21sat1.html.
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about eighty percent of Iraqis were opposed to occupation. 304
“Allies” ostensibly refers to the new Iraqi government. Two
months earlier, as appropriations and “troop surge” debates
brewed in Congress, Iraqi President Talabani claimed that U.S.
and British troops must remain in Iraq for the good of Iraqi
people and its security. 305 At that critical juncture, commentators
claimed that Iraq would become a “terrorist Disneyland” if the
U.S. were to leave. 306 For the domestic audience, the
persuasiveness of this reason for continuing occupation reverts
back to memories of 9/11. 307
In November 2007, Congress inserted another rider into an
appropriations bill to withdraw troops from Iraq, but Democrats
were seven votes short of impeding a Republican filibuster. 308
Polls from mid-2008 revealed that over twenty-five percent of
Americans still considered Iraq to be the most important issue in
the presidential election. 309 Bush departed with the second lowest
presidential approval rating in history at twenty-two percent due
to Iraq and poor economic conditions. 310 Within six months of the
Bush Administration’s departure, favorable foreign views of the
U.S. surged, 311 and several months later President Obama was
304. Bejesky, Weapon Inspections, supra note 67, at 346 n.256; Bejesky, Politico,
supra note 10, at 102-07.
305. Mark Tran, Talabani: Iraq Still Needs Coalition Forces, GUARDIAN, May 11,
2007, http://www.guardian.co.uk/world/2007/may/11/usa.iraq1.
306. Mark Trevelyan, Iraq a ‘Terrorist Disneyland’ if US Goes: Expert, REUTERS,
May 15, 2007, available at http://www.reuters.com/article/2007/05/15/us-iraqalqaeda-idUSL1560349920070515; Tran, supra note 305.
307. Bejesky, Cognitive Foreign Policy: Linking Iraq and Al Qaeda, 56 HOW. L.J.
(forthcoming Fall 2012) [hereinafter Bejesky, CFP].
308. David M. Herszenhorn, Democrats Say They Won’t Back Down, N.Y. TIMES,
Nov. 19, 2007, at A21, available at http://www.nytimes.com/2007/11/19/
washington/19cong.html.
309. Clay Calvert, War & Emotional Peace: Death in Iraq and the Need to
Constitutionalize Speech-Based IIED Claims Beyond Hustler Magazine v. Falwell, 29
N. ILL. U. L. REV. 51, 67-68 (2008).
310. Bush’s Final Approval Rating: 22 Percent, supra note 13.
311. See Karl Ritter & Matt Moore, Gasps as Obama Awarded Nobel Peace Prize,
USA TODAY, Oct. 9, 2009, http://www.usatoday.com/news/topstories/2009-10-093668172523_x.htm; Confidence in Obama Lifts U.S. Image Around the World, PEW
RES. CTR., July 23, 2009, http://pewglobal.org/2009/07/23/confidence-in-obama-liftsus-image-around-the-world/ (“The image of the United States has improved
markedly . . . reflecting global confidence in Barack Obama. In many countries
opinions of the United States are now about as positive as they were at the beginning
of the decade before George W. Bush took office.”); Frank Newport, Obama’s Nobel
Prize: Public Opinion Context, GALLUP, Oct. 9, 2009, http://gallup.com/poll
/123599/Obama-Nobel-Prize-Public-Opinion-Context.aspx (stating that in February
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awarded a Nobel Peace Prize for “extraordinary efforts to
strengthen international diplomacy and cooperation between
peoples.” 312 In October 2011, President Obama announced that all
U.S. soldiers would be withdrawn by the end of the year. 313 As for
the economic travail that began during the Bush Administration,
as time passed, a higher percentage of Americans started to
blame Obama for the poor economy 314 and for the growing
deficit. 315
IV. CONCLUSION
Scholars waged debates over war powers and international
law during the Bush Presidency. What some scholars considered
international law violations and extraordinarily broad
interpretations of the commander in chief power were addressed
by the Bush Administration by tendering loopholes. 316 The
Geneva Convention was supposedly inapplicable to captured
detainees because Afghanistan was a “failed state” and militants
were “unlawful enemy combatants.” 317 Captured detainees in
2008, 71% of Americans said “leaders of other countries around the world . . . [d]on’t
have much respect” for Bush; and in February 2009, 20% of Americans said “leaders
of other countries around world . . . [d]on’t have much respect” for Obama); Voice of
the People: Global Survey Gives Thumbs Down to U.S. Foreign Policy, GALLUP INT’L,
(Sept. 7, 2002), http://www.voice-of-the-people.net/ContentFiles /docs%5CTerrorism
_and_US_foreign_policy.pdf (example of drastic foreign approval rating drop for Bush
as diplomacy over Iraq began).
312. Obama: Nobel Peace Prize is ‘Call to Action,’ CNN, Oct. 9, 2009,
http://articles.cnn.com/2009-10-09/world/nobel.peace.prize_1_norwegian-nobel-comm
ittee-international-diplomacy-and-cooperation-nuclear-weapons?_s=PM:WORLD.
313. Mark Landler, U.S. Troops to Leave Iraq by Year’s End, Obama Says, N.Y.
TIMES, Oct. 21, 2011, http://www.nytimes.com/2011/10/22/world/middleeast/president
-obama-announces-end-of-war-in-iraq.html?pagewanted=all.
314. Susan Page, Poll: More Blame Obama for Poor Economy, Unemployment,
USA TODAY, Apr. 1, 2010, http://www.usatoday.com/news/washington/2010-03-31poll_N.htm.
315. GOP Frustration Grows With Obama Approach to Jobs, Deficit,
FOXNEWS.COM, Sept. 18, 2011, http://www.foxnews.com/politics/2011/09/18/gopfrustration-grows-with-obama-approach-to-jobs-deficit/.
316. Robert Bejesky, War Powers Pursuant to False Perceptions and Asymmetric
Information in the “Zone of Twilight,” 44 ST. MARY’S L.J. (forthcoming 2012);
Bejesky, Flow, supra note 132, at 23-27.
317. Memorandum from Assistant Attorney General Jay S. Bybee to White House
Counsel Alberto R. Gonzales and Dep’t of Defense General Counsel William J.
Haynes II, at 2 (Jan. 22, 2002), http://www.justice.gov/olc/docs/memo-laws-talibandetainees.pdf (contending that “Afghanistan’s status as a failed State is sufficient
ground alone for the President to suspend Geneva III”); John J. Gibbons,
Commentary on the Terror on Trial Symposium, 28 REV. LITIG. 297, 300-01 (2008)
(the “ugliness of the . . . assertion that the President can unilaterally and secretly
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foreign conflicts were subject to torture at the same time that the
administration authorized harsh interrogation methods,
extraordinary renditions, and secretive military tribunals to
determine detention status and guilt. 318 The Authorization for the
Use of Force Against Iraq was approved because of security
threats, but the data to demonstrate the conditions to use force
were veiled from Congress inside the national intelligence
apparatus. 319 The Security Council and U.N. weapons inspectors
toiled for four months, straining to discover evidence that would
substantiate the Bush Administration’s security threats. 320 When
the inspectors were unsuccessful in discovering prohibited
weapon programs, the invasion still ensued and the rationale for
war was swapped from national security jeopardy to “liberating”
Iraqis. 321
At the domestic level, Bush implemented programs under
the commander in chief authority that shielded nefariousness
with secrecy, including by issuing domestic terror threat
announcements that lacked verification, 322 scorning those who
questioned secrecy prerogatives, 323 and conducting illegal
authorize violations of the Geneva Conventions and of criminal law prohibitions
against torture . . . was intended to remain secret”); Richard B. Bilder & Detlev F.
Vagts, Speaking Law to Power: Lawyers and Torture, 98 AM. J. INT’L L. 689, 690
(2004) (calling the legal justification for not applying the Geneva Conventions to the
Taliban “legally untenable”).
318. EUR. PARL. DOC. (PE 382.246-V02-00) 11 (2007); Manfred Nowak, Moritz Birk
& Tiphanie Crittin, The Obama Administration and Obligations Under the
Convention Against Torture, 20 TRANSNAT’L L. & CONTEMP. PROBS. 33, 34 (2011);
Jules Lobel, Preventative Detention and Preventative Warfare: U.S. National Security
Policies Obama Should Abandon, 3 J. NAT’L SEC. L. & POL’Y 341, 341 (2009); Bejesky,
Flow, supra note 132, at 24-26; See supra note 68.
319. ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 445-47 (Mariner
Books, 2004) (secrecy is a major “test of the imperial presidency”).
320. See generally Bejesky, Weapon Inspections, supra note 67.
321. Bejesky, Politico, supra note 10, at 102-07.
322. Robert Bejesky, A Rational Choice Reflection on the Balance Among
Individual Rights, Collective Security, and Threat Portrayals Between 9/11 and the
Invasion of Iraq, 18 BARRY L. REV. (forthcoming 2012).
323. Bejesky, Flow, supra note 132, at 22-23. On October 17, 2003, Senator Robert
Byrd remarked to Congress about the Bush Administration’s false allegations about
the Iraq War and noted that war critics have had patriotism questioned: “Those who
dared to expose the nakedness of the Administration’s policies in Iraq have been
subjected to scorn. . . . The time has come for the sheep-like political correctness
which has cowed members of this Senate to come to an end. . . .Taking this nation to
war based on misleading rhetoric and hyped intelligence is a travesty and a
tragedy . . . .[T]his administration must now attempt to sustain a policy predicated
on falsehoods.” 149 CONG. REC. S12800-01 (Oct. 17, 2003), http://www.gpo.gov/
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surveillance operations. 324 If the president’s authority under the
National Security Act to monopolize secrecy was not so expansive,
if Congress had more information, or if there were sufficient
checks on the use and verifiability of intelligence information,
perhaps so much discord over the president’s exploits would not
arise. In March 2006, the Republican-controlled Senate Judiciary
Committee held a censure hearing on President Bush’s
unauthorized domestic surveillance program. 325 Professor Iglesias
explained that a “public performance of intra-party conflict
orchestrated the illusion of inter-branch accountability—a
tempest in the teapot of a censure resolution. What, after all, was
the significance of a censure resolution in the Senate Judiciary
Committee when, outside the committee, the ever louder call was
for impeachment?” 326 President Clinton was impeached.
There are public costs of unpopular wars. Presidents
Truman and Johnson did not run for reelection because of the
fallouts from the Korean War and Vietnam Wars, respectively. 327
It may be particularly precarious to assume that Americans
voluntarily accepted the negative repercussions of war if they
were led by emotive allegations and insufficient information. 328
For Congress, political realities permit the president to employ a
congressional authorization as a shield to deflect blame as
“members of Congress who are on record for supporting the
conflict cannot credibly claim once the war becomes unpopular
that the President has no good rationale for going into war.” 329
Political costs for a war are diffused to other elected officials 330
even though Congress can be restricted from accessing the
national security data that premised the decision. 331 Propaganda
permits the Executive to shift attention from substantive issues
fdsys/pkg/CREC-2003-10-17/pdf/CREC-2003-10-17-pt1-PgS12769-8.pdf.
324. Bejesky, Flow, supra note 132, at 26-27.
325. David D. Kirkpatrick, Call to Censure Is Answered by a Mostly Empty Echo,
N.Y. TIMES, Apr. 1, 2006, at A11; Elizabeth M. Iglesias, Article II: The Uses and
Abuses of Executive Power, 62 U. MIAMI L. REV. 181, 181-85 (2008).
326. Iglesias, supra note 325, at 183-84.
327. Nzelibe, supra note 150, at 918.
328. See generally Bejesky, CFP, supra note 307 (analyzing the use of information
surrounding the invasion of Iraq by applying research in linguistics, emotion,
cognition medical science, and marketing).
329. Nzelibe, supra note 150, at 919.
330. Id. at 910.
331. Bejesky, Flow, supra note 132, at 1-22.
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in numerous ways, 332 including by promoting something that
Congress cannot oppose, such as “supporting the troops.” 333
Congress should not desert U.S. soldiers who risk their lives
to defend Americans. However, Iraq was not a security threat.
The U.S. military was not legitimately used under the conditions
for the war powers authorization. Deploying soldiers for an
unsanctioned mission may violate the interests of U.S. soldiers,
the rights of citizens who are devoted to the soldiers and do not
want them to be placed in danger when there never was a real
security threat to Americans, and the oath of members of
Congress who voted on the basis of false information. Also, if
there is a nexus among war spending, higher oil prices due to war
risks, and a weakened American economy, 334 President Obama
should not be culpable for conditions prevailing when he entered
office.
332. See generally Bejesky, PDP, supra note 193 (distinguishing ambiguous
government statements made to various target audiences during the pre- and postinvasion periods of Iraq).
333. MIT Emeritus Professor Noam Chomsky emphasizes how critical substantive
inquiries can be dismissed by shifting attention: “Support our troops. Who can be
against that? The issue was, [d]o you support our policy? But you don’t want people
to think about the issue. That’s the whole point of good propaganda. You want to
create a slogan that nobody’s going to be against, and everybody’s going to be for.
Nobody knows what it means because it doesn’t mean anything. . . . So you have
people arguing about support for the troops? Of course, I don’t not support them.
Then you’ve won.” DOUGLAS RUSHKOFF, COERCION: WHY WE LISTEN TO WHAT ‘THEY’
SAY 162 (1999) (citing NOAM CHOMSKY, MEDIA CONTROL (1991)).
334. Bejesky, Politico, supra note 10, at 31-34, 37, 84-90, 111; Robert Bejesky,
Geopolitics, Oil Law Reform, and Commodity Market Expectations, 63 OKLA. L. REV.
193, 273-77 (2011).