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"This has become a perfect storm"

Recently, I had the distinct pleasure and honor of sitting down with David B. Rivkin. He was very gracious, tolerant, and forgiving of my "rough around the edges" journalistic prowess (or lack thereof). I will be eternally grateful for his willingness to spend some of his valuable time with me, even if I find myself MORE upset with the 110th Congress in the shadow of our visit.

For those who don't know, Mr. Rivkin is a distinguished Partner at Baker Hostetler Law firm in Washington DC. He also has some very impressive credentials within and outside the public sector, and has served in various Presidential Administrations in a number of different capacities. Mr. Rivkin sits on the Council for Foreign relations, and is a very talented author.

David's recent work examining Congress’s Constitutional authority to micromanage the President's prosecution of a war caught my attention first, but I was also impressed with the panel discussion at the NRO Conservative Summit a few weeks back in DC where he spoke on the future of conservative foreign policy. He has several recent published articles on issues regarding this "debate" on the Hill, and each of them are worth a deeper read.

I focused our conversation on the so-called Iraq debate currently being bandied about on Capitol Hill. I sought his views on the legality, constitutionality, political opportunism, and historical precedent of this debate.

Join me below the fold for what he had to say...

By sheer coincidence, as I was getting ready for our meeting, I came across THIS article in the Politico. In it, there are more than a few morsels and nuggets of details on the emerging "master plan" of the new Majority on the Hill - the court jesters masterminding the defeat of a President no matter the cost:

Top House Democrats, working in concert with anti-war groups, have decided against using congressional power to force a quick end to U.S. involvement in Iraq, and instead will pursue a slow-bleed strategy designed to gradually limit the administration's options.

As delicious as the term "slow bleed" is, the piece fails to correctly signify who is and will be doing the actual bleeding. While fun it may be for Rep. Murtha and America's Mother-In-Law™ to punish the President and any who would publicly admit to supporting him, this latest catch-phrase could be aptly described as "the deepest cut of all" - to everyone BUT the Administration and the GOP.

Consider, for a moment, the main points of the master plan:

Limit or sharply reduce the number of U.S. troops available for the Iraq conflict, rather than to openly cut off funding for the war itself.

A multimillion-dollar TV ad campaign designed to pressure vulnerable GOP incumbents into breaking with President Bush and forcing the administration to admit that the war is politically unsustainable.

[These will be done to circumvent the biggest political vulnerability of the anti-war movement -- the accusation that it is willing to abandon troops in the field.]

Take the lead in pressuring not only [House] Republicans but also cautious Senate Democrats to take steps more aggressive than non-binding resolutions in challenging the Bush administration.

[Murtha] will seek to attach a provision to an upcoming $93 billion supplemental spending bill for Iraq and Afghanistan. It would restrict the deployment of troops to Iraq unless they meet certain levels adequate manpower, equipment and training to succeed in combat.

Murtha, acting with the backing of the House Democratic leadership, will seek to limit the time and number of deployments by soldiers, Marines and National Guard units to Iraq, making it tougher for Pentagon officials to find the troops to replace units that are scheduled to rotate out of the country.

Additional funding restrictions are also being considered by Murtha, such as prohibiting the creation of U.S. military bases inside Iraq, dismantling the notorious Abu Ghraib prison and closing the American detention facility in Guantanamo Bay, Cuba.

"There's a D-Day coming in here, and it's going to start with the supplemental and finish with the '08 [defense] budget," said Rep. Neil Abercrombie, D-Hawaii, who chairs the Air and Land Forces subcommittee of the House Armed Services Committee.

The new approach of first reducing the number of troops available for the conflict, while maintaining funding levels for units already in the field, gives political cover to conservative House Democrats who are nervous about appearing "anti-military" while also mollifying the anti-war left, which has long been agitating for Pelosi and Senate Majority Leader Harry Reid, D-Nev., to be more aggressive.

"What we have staked out is a campaign to stop the war without cutting off funding" for the troops, said Tom Mazzie of Americans Against Escalation of the War in Iraq. "We call it the 'readiness strategy.'"

And, in this same article, Rep. Lynne Woolsey is quoted as saying this:

I don't know how you vote against Murtha. It's kind of an ingenious thing.

As sad as this tomfoolery makes me for our Soldiers, their families, and the Iraqi people trying to survive and rebuild their lives and their futures, I am perhaps more saddened by the glib nature of those who are working so hard to defeat this President.

Make no mistake: this is not about ending the war. It is about partisanship, political score-settling, and one-upmanship. Otherwise, they would not work so hard to de-fund the troops with every manner and form of legislation except for de-funding itself.

My first question for Mr. Rivkin was:

"A recent article of yours focused on the Constitutional implications of Congress and the Administration fighting over the execution of the war and who holds power to make which decisions. As this week’s continued debate heats up, did something change? Is there legal relevance to them pushing this into the agenda with so much energy?"

His response says a lot about the "sense of the Congress," all right. He suggested that the pace in the House exceeds his previous expectations. He also added that according to the press, there will be a push to move BINDING resolutions forward following on the heels of the non-binding resolution,.

As Mr. Rivkin understands it, four possible binding resolutions are developing. He suggested, however, that two in particular will likely have the greatest impact. The first of these, the required certification that any new troops are fully equipped and trained, can't really be quantified. Equipment, things like up-armored humvees and the like, aren't the issue. The nature of the process for deploying equipment and technology dictates that new technologies and equipment take months to reach the troops after entering the pipeline. Things are always in a state of change.

"The chances of ALL Brigades in the pipeline getting these things BEFORE they deploy are slim within this timeline. Further, it would be extremely difficult to certify".

This alone will slow down the surge. The Sunnis are already picking up the pace knowing full well what Congress is doing to bog the surge down here at home.

The second likely effective "binding resolution" provides for "length of time in theater" restrictions. Readiness and training and equipment slows down the Soldiers already planned to deploy, while limiting the time of those already there means huge gaps in available resources and significant interruptions in planning and allocations of resources.

"Things are happening MUCH faster than I thought."

My next question:

"What are the legal ramifications of a passed non-binding resolution? By that, I mean, is there a legal response to a passed resolution of this nature? Is the President required to respond in some way?"

He had two responses. First, that Congress has managed to "micro-manage" Administrations in the past. This time, however, is quite unique. Usually Congress micro-manages in areas of Foreign Aid; not since Viet Nam have they micro managed in matters of war. Even during Viet Nam, they did not micro-manage in matters of combat operations. By the time Congress had intervened in Viet Nam, the war was over.This is the first time in history that Congress has attempted to micro-manage in the middle of a war.

The second piece of the answer deals with the President's response. Technically, he does not have to respond at all, but if he hopes to keep Republicans intact on this issue, he will have little choice. If the Republicans stray on this initial resolution, the Democrats will be emboldened; the first piece of their strategy will have worked.If enough Republicans support this, then the President will have no political choice but to respond. The situation would resemble sharks in the water excited by the fresh chum. The President’s response would greatly affect the Democrats’ next steps, making the process even more convoluted and difficult to navigate.

Rivkin went on to suggest that if this non-binding resolution actually clears both Houses, the President may find himself forced to humor the Democrats. To quote him:

As much as I want to win this war, the integrity of the Constitution is actually more the issue.

He even went so far as to say that he couldn't imagine even a Carter or a Clinton giving in.

While the President always has the veto power at his disposal on any future binding resolutions, a veto would be a risky proposition in this situation. With this strategy comes the risk of veto proof votes and the like. Simple majority may be all that is necessary from Congress should these "future resolution(s)" be forwarded just right.

What Rivkin hopes President Bush says is this:

Thanks for the 93 billion, goodbye.

This approach, however, presents the following problem: imagine that you are Congress and you continue to pass resolutions and the President continues to ignore them. Congress is not going to continue to go home “empty handed” forever, and eventually, Congress may get drastic. I refuse to drop the "I" bomb here, but you can figure it out.

Ultimately, this is a challenge over who is going to blink; Congress seems to think it will be President Bush.

My next question was this:

"I have been following Iraqi blogs quite closely in recent weeks, and by and large they support the plan-more so because of changes in the rules of engagement rather than the specific numbers of soldiers engaging the enemy. Do you have any thoughts on the latest ROE changes, the effects Abu Ghraib and Guantanamo and others may have had on reducing our aggressive posture in the past, and any potential legal complaints from the anti-war movement as we move now to increase the aggressiveness of the engagement?"

[author's note...he had heard of Iraq the Model-way to go Omar & Mohammed!]

Rivkin commented on the "growing disconnect" between America and other countries (notably Britain). He also noted that the British have criticized us for being too tough, and that they worry over collateral damage in the conflict. As such, there have been many worries and concerns, heightened by events at Abu Ghraib and Guantanamo. He agrees that these issues have negatively affected our aggressiveness in engaging the enemy, and have from time to time caused us greater harm than good.

The advantage to the surge, however, is the symbolic nature of the enemy seeing that we are serious about staying engaged in the fight. They recognize that our actions on the ground there and the actions of our politicians here at home all have meaning. The extent to which we restrain or withdraw emboldens them. The extent to which the President does as much in response to Congress, sadly, also emboldens certain actions: Congress will push as far as there is no resistance, or as far as pushing will be tolerated. To many, this is not about Nancy Pelosi and George Bush. To many, this is about the standing President not allowing an activist movement, driven by a single issue, to unravel the Constitution in the name of political action and activism.

Speaking of which, my last question to Mr. Rivkin:

"Are we living through "Pre-Viet Nam II"?

His response was at once stark, realistic, and frightening. Quite simply, and with no pause, he said "this is much worse".

I have written much in recent months about my fears of our past coming to re-visit us; that somehow our current generation has forgotten, or never learned, the mistakes of our past: what we did to our own war heroes, and the deaths of hundreds of thousands of South Vietnamese. We caused all this in the name of making a point and getting even with a President.

Sadly, he suggested this was even worse than what happened back then. In 1975, Congress had acted ONLY after having allowed the Executive branch a 10-15 year leash, and only after a dramatic number of American casualties.

In modern days, the leash has shrunk to 4 years, and with significantly lower casualties we find our Congress completely unwilling and/or unable to stomach this war any longer (regardless of the fact that this war is, arguably, against a much greater threat than that which we faced in a Communist Viet Nam). Rivkin suggests this is "the perfect storm", and asks Congress this question:

If you don't like this; if we can't win THIS war, then what CAN we defeat?"

The debate that rages in Washington, the debate that rages around the water coolers and in the living rooms of America, and the debate that rages amongst the campfires in and around the caves in which our enemies hide is clear. The willingness to engage the fight, determine the measures necessary to achieve success, and see those measures through with no willingness to concede to defeat, is what drives EACH side of this conflict. The question remains: who will be the victor?

Unfortunately, Congress is concerned with other things at the moment, and victory on the battlefield is not on that short list.