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Escalation of the war in Iraq


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Tomorrow night at 9 p.m. EST, President Bush will address the nation and announce an escalation of the war in Iraq by sending about 20,000 more U.S. troops to Iraq. The American people, their representatives, and the military commanders on the ground strongly oppose this course of action. Can Congress do anything about it? Some have claimed that anything other symbolic action is unconstitutional. That's false. A wide range of legal experts agree there are a range of legal options available to Congress to stop, or place conditions on, any escalation in the war in Iraq. For example, John Yoo, a former Bush administration lawyer and one of the staunchest defenders of executive power, noted that "the power of Congress over the budget was absolute, to such an extent that lawmakers could end the war altogether if they chose." On the other side of the political spectrum, Georgetown University Law Professor Marty Lederman agrees. A new report from the Center for American Progress illustrates that Congress has acted repeatedly over the last 35 years to ensure the conduct of military action would "strengthen American national security and reflect the concerns and will of the American people." Congress has passed bills, enacted into law, that capped the size of military deployments, prohibited funding for existing or prospective deployment, and placed limits and conditions on the timing and nature of deployments.


CAPPING TROOP LEVELS: Congress has historically exercised authority to cap U.S. troop levels in foreign conflicts. In 1974, the Foreign Assistance Act "established a personnel ceiling of 4000 Americans in Vietnam within 6 months of enactment and 3000 Americans within one year." In 1983, the Lebanon Emergency Assistance Act "required the president to return to seek statutory authorization if he sought to expand the size of the U.S. contingent of the Multinational Force in Lebanon." In 1984, the Defense Authorization Act "capped the end strength level of United States forces assigned to permanent duty in European NATO countries at 324,400." All of this legislation was enacted into law.


RESTRICTING FUNDING: Congress has also restricted funding for certain military operations for U.S. troops. In 1970, the Supplemental Foreign Assistance Law, "prohibited the use of any funds for the introduction of U.S. troops to Cambodia or provide military advisors to Cambodian forces." In 1982, the Defense Appropriation Act "prohibited covert military assistance for Nicaragua." In 1994, Congress restricted the use of funds "for United States military participation to continue Operations Restore Hope in or around Rwanda after October 7, 1994."All of these funding restrictions were enacted into law. Read the report for more examples.


CONDITIONING FUNDING: Alternatively, Congress has authorized military action subject to various conditions. In 1991, Congress authorized the use of force against Iraq but conditioned it on the President "certifying first that means other than war would not result in Iraqi compliance with UN Security Council resolutions." In 2001, President Bush sought authority to respond to the 9/11 attacks to "deter and pre-empt any future acts of terrorism or aggression against the United States." Instead, Congress limited the authority to "all necessary and appropriate force against those nations, organizations, or persons he determines planned authorized committed or aided" the 9/11 attacks.


CONGRESS NOT SITTING ON THE SIDELINES: Today, Sen. Edward Kennedy (D-MA) will propose one option, asserting Congressional authority and demanding accountability for the President's policy. Kennedy "will introduce legislation on Tuesday to require the president to gain new Congressional authority before sending more troops to Iraq. The bill is the first proposal in the Senate that would prohibit paying for an increase in American troops over their level on Jan. 1." Kennedy's action is similar to a proposal outlined in an American Progress memo, released in December, which recommended "an amendment on the supplemental funding bill that states that if the administration wants to increase the number of troops in Iraq above 150,000, it must provide a plan for their purpose and require an up or down vote on exceeding that number."

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