Sunday, January 19, 2014

Diane Feinstein takes a sensible position on Congressional war powers - at least for the moment

I'm not in the habit of particularly praising my California Sen. Diane Feinstein. She's a liberal Democrat and has a decent voting record on many domestic issues.

But as Chair of the Senate Intelligence Committee, she's had a terrible record on oversight of the intelligence agencies. She's been more of an advocate for expansive powers for intelligence agencies at the expense of democratic and Constitutional rights.

This is one of the major problems in the US right now. One of the major democratic deficits right now, to borrow a term rightly applied the EU in its current form. Congress has virtually ceded its war powers to the Executive. Elizabeth Beavers of the Friends Committee on National Legislation writes in Bring the War on Terror to an End 01/10/2014, a piece appearing on the website of US News and World Report (!), focuses on the expansive authority claimed by the Executive Branch - and so far largely unchallenged by Congress - under the open-ended 2001 Authorization for the Use of Military Force (AUMF):

How can the National Security Agency maintain its sweeping, invasive spying program? The only justification is the AUMF. Where did the president get the authority to indefinitely detain people for over a decade without charge or explanation? The AUMF provides that power, of course. Can U.S. citizens be targeted by drones for assassination without due process? Sure, says the AUMF.

It is doubtful that members of Congress envisioned the future they were creating when they voted "yes" for the AUMF in 2001. But now that future is the present world we live in, and it is time to re-examine it. Is it safer? Is it more secure? As Americans, do we have more liberty? As global citizens, are we leading by example to bring about justice and the rule of law? There is a strong case to be made that the answer to each of those questions is a resounding no, and it is directly because of the AUMF.

It is impossible to discuss the issues of warrantless wiretapping, the war in Afghanistan, the detention facility at Guantanamo or targeted drone strikes without discussing the AUMF. These troubling practices are only possible because they are considered "incidents of war" that are covered by the sweep of the AUMF's authority.
So it's a surprise to see Feinstein's speech, Feinstein on Iran: Give Diplomacy a Chance, Oppose Additional Sanctions 01/15/2014. In it, she's taking her usual stance of defending the Obama Administration's foreign policy, in this case the current negotiations with Iran over nuclear capabilities. And she's opposing a Congressional resolution backed by the Israel lobby that would likely make those negotiations impossible.

Thanks to Administration pressure, the public popularity of the negotiation efforts and backing from Congressional supporters of the negotiations like Feinstein, the effort to pass the anti-negotiation bill seems to be stymied for the moment, as Jim Lobe reports in Israel Lobby Thwarted in Iran Sanctions Bid For Now Inter Press Service 01/15/2014.

Feinstein's speech is interesting as part of a debate on how the Congress should assert its power in foreign policy. No one is questioning that Congress has the power to restrict the Executive's options in a negotiation; they clearly do. But they exercise it so infrequently in opposition to the Executive Branch and have lately been more interested in promoting a warlike foreign policy and especially to cover up, validate and even legalize dangerous practices by intelligence agencies that in restraining the already heavy temptation for the Executive to be reckless in foreign policy.

What's particularly notable about the dispute in which Feinstein is participating is that the anti-negotiations legislation (the Nuclear Weapon Free Iran Act of 2013) shows an appalling willingness of its sponsors - 59 Senators are co-sponsors - to waive their own Constitutional responsibility under their Constitutional war powers. The proposed legislation includes this provision:

if the Government of Israel is compelled to take military action in legitimate self-defense against Iran’s nuclear weapon program, the United States Government should stand with Israel and provide, in accordance with the law of the United States and the constitutional responsibility of Congress to authorize the use of military force, diplomatic, military, and economic support to the Government of Israel in its defense of its territory, people, and existence
Since Israel has repeatedly threaten to launch a preventive military attack on Iran over the nuclear weapons issue, the Congressional sponsors surely must realize this is a green light from Congress to encourage Israel to launch such an attack.

Which is pretty much what Feinstein says in her speech near the end says:

Let me acknowledge Israel's real, well-founded concerns that a nuclear-armed Iran would threaten its very existence. I don't disagree with that. I agree with it, but they are not there yet.

While I recognize and share Israel's concern, we cannot let Israel determine when and where the United States goes to war. By stating that the United States should provide military support to Israel in a formal resolution should it attack Iran, I fear that is how this bill is going to be interpreted.

Let me conclude. The interim agreement with Iran is strong, it is tough, and it is realistic. It represents the first significant opportunity to change a three-decade course in Iran and an opening to improve one of our most poisonous bilateral relationships. It could open the door to a new future which not only considers Israel's national security, but protects our own. [my emphasis]
We'll be hearing quite a bit of commentary this year about the beginning of the First World War. We can at least hope most of it will be less frivolous than that of Bill Kristol, which is after all a very low bar to meet.

But one major factor in the immediate chain of decision-making that led to the all-out war in 1914 was Germany's assurance to the Austro-Hungarian Emperor Franz Joseph II's government that Germany would back them in a war against Serbia. It wasn't a German Archduke that Gavrilo Princip assassinated in Sarajevo. And a less reckless government than Kaiser Bill's might have reasoned that giving a green light to the Habsburg Empire for a war on Serbia might not be something to agree to without more careful consideration.

Just as a more responsible Congress in 2002 could have and should have been less willing to give President Cheney an authorization to launch a preventive war on Iraq based on false claims. More importantly, a more responsible Congress would have tried to impeach a President and Vice President who violated the Congressional resolution they did pass in October 2002 when they did invade Iraq.

The problem is not that Congress isn't willing to exercise its authority in foreign affairs. The problem is that in doing so, they are far too deferential to the Executive Branch in general and, even more importantly, lacking in a sense of responsibly exercising their Congressional duties in foreign affairs and especially in the use and enforcement of their war powers.

Diane Feinstein has been a textbook case for that lack in a sense of responsibility on intelligence oversight. But in telling the Senate it would be irresponsible for give Israel a green light for a war that would not be in America's interests, she asserted a sensible approach toward Congressional war powers and responsibilities.

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