From: http://www.9000phoneticwords.com/wisdom%20and%20courage/warpowers.html

This article on the Congress' power to decare war and the powers of the President as Commander-in-Chief is worthy of every citizen's interest. It is a shame the Congress was not asked to decare war on Iraq. Had they been asked and had they responded either yes or no -- we would not now be in this mess in Iraq. Their half-measure of authorizing an invasion without a formal declaration of war was the linchpin that connected the president's incompetence with our fearsome military power.

Whose War Powers? / By NOAH FELDMAN / The New York Times / February 4, 2007

For weeks, Congress has immersed itself in drafting a nonbinding Congressional resolution condemning the president’s plan to secure Baghdad by sending 21,500 additional troops to Iraq. Although Democrats and some Republicans have chosen the expedient route of impugning the surge without actually blocking it, some heavy hitters have hinted that Congress could use the power of the purse to force the president to follow its will. Senator Ted Kennedy has introduced legislation that would block the president from adding more troops without specific Congressional authorization.

The president, as usual, is having none of it. In an interview with “60 Minutes,” he asserted that Congress had no authority to interfere with his troop deployments. If President Bush sticks to his guns, the question of how far Congress can go to control his war plans is not going to go away. A constitutional conflict is brewing.

Who’s right? Lots of ink has been spilled over the relative powers of the president and Congress to begin wars. The War Powers Act of 1973 — whose authority presidents of both parties have been loath to acknowledge — demands that a president terminate use of force after 90 days unless Congress has authorized him to continue. On the question of winding down hostilities, though, almost nothing has been said. The Constitution gives Congress the power to declare war; but does that include the power to undeclare it? If the Iraq conflict were to end with a peace treaty, it would need to be submitted by the president and ratified by two-thirds of the Senate. Our war in Iraq, though, is not likely to end with a treaty of surrender. So far we don’t even have an enemy we can talk to.

Constitutional tradition does not clearly resolve this question. Once Congress has authorized a war, as it did the war in Iraq, the president’s power as commander in chief surely allows him to conduct the war without being micromanaged from Capitol Hill. No one believes Congress could legitimately pass a law ordering the Army to take one hill instead of another. During the Civil War, Congress created the Joint Committee on the Conduct of the War, which exercised oversight with a vengeance, debriefing generals after battles and questioning specific tactical choices. But Lincoln struggled fiercely to preserve his decision-making independence, and since then, Congress has mostly avoided this sort of thing in wartime.

From the president’s perspective, requiring him not to send more troops to Baghdad is just the kind of armchair quarterbacking that the Constitution prohibits. When it comes to deciding how many troops should be sent where, there is reason to think he’s right. Yet Congress commonly attaches riders to appropriation bills saying that funds may not be used for one purpose or another. In theory, Congress could command that no funds appropriated by a certain bill may be used to increase the total number of troops in Iraq. Even if the president moved troops from another front, or used other, unrestricted funds to pay for the troops, such a provision might eventually block the increase of troop numbers or even require a drawdown.

Congress has used the appropriation power to limit combat before — but only to end wars. In 1970, Congress barred use of any funds for troops in Cambodia. And in 1973, after President Nixon agreed to withdraw U.S. troops from Vietnam, Congress set a date after which no funds at all could be used to support combat in Southeast Asia.

Given this historical precedent, there is strong reason to think that the president is within his powers as commander in chief — and beyond the reach of Congress — when he allocates troops. Congress would be on much firmer ground if it exerted its power to pull financing for all troops in Iraq than it would be if it tried to dictate precise troop numbers.

This may sound strange: after all, if Congress can bring all our soldiers home, why can’t it stop the president from sending more over? Yet the paradox is more apparent than real. The constitutional structure of divided powers is designed to discourage Congressional intervention in particular tactical decisions. Congress is the ideal body for expressing the people’s will that a war as a whole should be over, but its 535 members are very poorly suited to laying out the order of battle. For that task, a single supreme commander is necessary. Even the War Powers Act treats Congress’s decision about going to war as an on-off toggle, not a dimmer switch.

Congress, though, is not yet prepared to demand an immediate and total pullout from Iraq. Neither are the American people, who seem to understand that precipitate withdrawal could turn the present civil war into a conflict of international scope. The Democratic unwillingness to push the president all the way to the wall reflects the broader political will — at least for the moment.

Declining to go for broke leaves Congress in the awkward position of objecting to how the president is fighting the war, not to the fact that he is still fighting it. There is nothing wrong with that stance, of course; there are still some of us who believe that the greatest problem for the United States in Iraq has always been incompetent management. In any case, so long as Congress does not want to end the war outright, it should stick to oversight and not try to dictate tactics.

Noah Feldman, a contributing writer, is a law professor at New York University and adjunct senior fellow at the Council on Foreign Relations.

Copyright 2007 The New York Times Company