Senator Feingold's Sin By Kimberley A. Strassel

The Wall Street Journal

Potomac Watch
Senator Feingold's Sin

February 2, 2007; Page A18

The Senate is teeming with courageous souls these days, most of them Republicans who have taken that brave step of following the opinion polls and abandoning their president in a time of war. Meanwhile, one of the few senators showing some backbone in the Iraq debate is being shunned as the skunk at the war critics' party.

Sen. Russ Feingold held a hearing this week on Congress's constitutional power to shut off funds for the Iraq war, and followed it up a day later with legislation that would do just that. The Wisconsin pacifist might not understand the importance of winning in Iraq -- or the cost of losing -- but at least there's an element of principle to his actions. He's opposed the war from the start and his proposal to cut off money after six months would certainly end it. It also happens to be Congress's one legitimate means of stopping a war.

Mr. Feingold's reward for honesty was to preside over what might have been the least-attended hearing so far in the Iraq debate. And those of his Senate colleagues who did bother to show up looked like they couldn't wait to hit an exit door. "If Congress doesn't stop this war, it's not because it doesn't have the power. It's because it doesn't have the will," declared Mr. Feingold. Ted Kennedy -- one of two Democrats who put in an appearance -- could be seen shifting uncomfortably in his seat.

That's because Sen. Feingold is coming uncomfortably close to unmasking the political charade playing on the Senate stage. Critics of President Bush want an unhappy public to see them taking action on the war. So we have the Biden-Warner compromise resolution condemning the plan to increase the forces. There is also talk of capping troops, of requiring redeployments to Afghanistan, of benchmarks and progress reports.

All these proposals have one overriding thing in common: While they may hurt the war effort, none are significant enough for Congress to take responsibility when Iraq is irrevocably lost. This is President Bush's war, and his critics won't take any step that puts them on the hook as well. Sen. Feingold's sin is to suggest that Congress do something more than play politics.

It's a delicate high-wire act, made more complex by the opponents' need to reassure the public that their actions, which will surely encourage the enemy and deflate troop morale, won't, in fact, encourage the enemy or deflate troop morale. This has led to the spectacle of the Senate one day unanimously voting to confirm Gen. David Petraeus, and the next taking up resolutions that would kneecap his plan for success. John Warner and Chuck Hagel are all for the troops, just not for letting them win. Very courageous indeed.

Meanwhile, back in the distasteful department, Sen. Feingold's hearing also drew attention (darn him!) to the other pachyderm in the room: the Constitution. The Senate next week may well pass a resolution that criticizes the Iraq troop buildup, yet notably it will be "non-binding." Should the president ignore it -- which he will have the legal and moral right to do -- pressure will increase for Congress to take real steps to micromanage the war, say with a troop ceiling.

But as constitutional scholars testified at the hearing, Congress (even one worried about its political backside) does not have an unfettered right to be commander in chief. The Founders specifically chose not to give Congress the right to "make" war, worried that this term might allow legislators to conduct military engagements. Instead, Congress was restricted to "declaring" war, which is what it did when it authorized President Bush to invade Iraq. Another constitutional power is to end war, by refusing to appropriate money. But "in the conduct of war, in the conduct of foreign affairs, the president is in fact the decider," said University of Virginia professor Robert Turner.

It is thus dawning on senators that any plans for tinkering with Iraq might not prove so easy. Mr. Feingold largely focused on the question of cutting off funds, but the three or four other war opponents present were eager to coax the assembled witnesses into giving them constitutional cover for other actions.

Sen. Dick Durbin floated the latest brainstorm: Since Congress's authorization of the Iraq war was premised on finding WMD and deposing Saddam Hussein -- and since we never found WMD and Saddam is now gone -- doesn't Congress have the constitutional right to revisit the war authorization? Even the liberal scholars, who'd been picked for their willingness to testify that Congress can do whatever it wants, looked peaky at the idea. That included one-time assistant-attorney general Walter Dellinger, who felt so strongly about executive power in the 1990s that he advised President Clinton to invade Haiti without congressional authority, but today believes the Republican in the Oval Office is getting away with too much.

The pesky constitution is a new hitch for the war critics, whose strategy was to briefly act as backseat generals, get the headlines, and then wait for President Bush to take the fall. Instead, Sen. Arlen Specter was gauche enough at the Feingold hearing to worry out loud that Congress was setting down a path that may lead to a "confrontation" between the two branches.

He might well worry. If one thing has defined the Bush years, it has been the president's willingness to exert his executive authority in defense of America. He's done it with detainees, with wiretaps, with military commissions. And he fervently believes success in Iraq is crucial to American security. In any thorny debate over just how much authority Congress has to interfere, it's a good bet Mr. Bush's own legal team will be pointing out the strong constitutional case that only the president has the right to decide where and how to deploy troops, as well as noting the peril of ceding any of that authority to 535 mini-me commanders in Congress.

What happens then? What happens if President Bush ignores Congress's attempt to direct the war? A few in the Democratic Party would love for an excuse to commence impeachment proceedings, but the rest understand that's political suicide. Then there's court. If liberals were unhappy about the Supremes deciding the 2000 election, imagine the theater of nine black robes deciding the outcome of the Iraq war.

Whatever comes, Congress is to blame. For a month the Senate has been trying to wrestle control of Iraq from the president, but undercover, and in a way that that avoids accountability. Sen. Feingold shone a light under that rock this week, and now the hard questions begin.

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