Analysis: Can Congress stop an Iraq surge?

By SHAUN WATERMAN, UPI Homeland and National Security Editor

WASHINGTON, Jan. 8 (UPI) -- If Congressional Democrats want to block any proposed escalation in U.S. troop levels in Iraq, as new House Speaker Nancy Pelosi, D-Calif., hinted at the weekend, they have the constitutional authority and the legal power to do so, according to some scholars.

"It's a fundamental constitutional principle that Congress can initiate and regulate war," law Prof. Neil Kinkopf of Georgia State University told United Press International.


Kinkopf, a former Clinton administration Justice Department official who worked in the Office of Legal Counsel, authored a paper for the American Constitution Society last week arguing that Congress has the power to stop President Bush sending additional troops to Iraq -- a move many expect him to announce this week.

Speaking Sunday on CBS Television's Face the Nation, Pelosi said the president would have to justify any additional spending or troop commitments to Congress, which would subject them to "the harshest scrutiny."


"We will always support the troops who are there," said Pelosi, ruling out any cuts to funding for existing troop levels. But she added, "If the president wants to expand the mission, that's a conversation he has to have with the Congress of the United States ... There's not a carte blanche, a blank check, to him to do whatever he wishes there."

Bush was this weekend said to be finishing up work on his new policy for Iraq. In addition to increasing troop levels by as much as 20,000 or so, it is also thought to include several billion dollars in economic aid to the new Iraqi government for jobs and reconstruction there.

Constitutional scholars have long wrangled about the exact delineation between the Congress' authority to declare and regulate the conduct of war, and the president's authority as commander-in-chief. But Kinkopf argues there was no doubt about the power of Congress to limit the numbers of troops in Iraq.

"As commander-in-chief, the president's role is to prosecute the war that Congress has authorized," wrote Kinkopf. "The president may not go beyond this authorization."

Kinkopf says that the law currently authorizing the war, passed by Congress in 2002, clearly includes the authority for the kind of surge in troop numbers currently being considered.


"As a legal matter, that (Congressional) authorization was drafted broadly enough to encompass the escalation that the president has in contemplation," wrote Kinkopf.

But, he added, Congress could simply pass another authorization "effectively limiting the number of troops deployed in Iraq."

As an alternative, Congress could use the power of the purse, passing a so-called appropriations rider, restricting the administration from spending any money to make the troop surge happen.

In either case, President Bush would have to use his veto if he wanted to go ahead with any planned escalation, said Kinkopf.

Since the terror attacks of Sept. 11, 2001, Congress has approved about $500 billion for Iraq, Afghanistan and other terrorism-fighting efforts. The White House is working on its largest-ever appeal for emergency supplemental war funds -- a record request, thought to total at least $100 billion, will be submitted along with Bush's budget next month.

But any escalation would probably begin right away, and any Congressional effort to block it would have to go ahead before lawmakers had a chance to consider the supplemental, Carl Conetta, co-director of the project on Defense Alternatives, a think tank which researches military requirements in the post-Cold War world, told UPI.


He added that such a move would be politically tricky for the new Democratic leadership of the Congress.

"It would put them in a difficult position," he said, "One that could be spun by the administration as hamstringing the war effort."

"That's exactly where the administration's supporters would like to put them."

Perhaps cognizant of that political reality, a number of top Democrats Sunday declined to echo Pelosi's determination.

Sen. Joe Biden, chairman of the Senate Foreign Relations Committee and a 2008 presidential candidate, told NBC's Meet the Press that increasing troops would be a "tragic mistake." But he said Congress was constitutionally powerless to alter Bush's military strategy because it had already authorized war.

"As a practical matter, there's no way to say, 'Mr. President, stop,'" Biden said. "You can't go in and, like a tinker toy, and play around and say, 'You can't spend the money on this piece and this piece.'"

Biden's contention that Congress was powerless to stop an escalation was wrong, said Kinkopf. But he was not alone in his misapprehension. "It seems that many members of Congress don't understand that they have this power," he said.

But retired Army Col. Pat Lang, a commentator on military affairs, said there was a difference between having the power of the purse and being able to use it effectively to block specific military operations.


"In practice," he told UPI, "It's impossible to fine tune what you're cutting (funds for) like that. ... I watched them trying to do for 10 years in Vietnam. ... They never cut the funding off until long after all U.S. troops were out of the country."

Conetta said that the Democrats might end up trying to "oppose this effort (at escalation) ... without taking Congressional action to stop it. But he believed it was more likely they would "play every card to its conclusion," and try to block a surge, knowing that "in the end they will fail, that the president will get his way."

"They may content themselves with complaining loudly," he said.

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