- The Washington Times - Monday, January 8, 2007

Congressional Democrats who want to block any proposed escalation in U.S. troop levels in Iraq have the constitutional authority and the legal power to do so, scholars says.

“It’s a fundamental constitutional principle that Congress can initiate and regulate war,” said Neil Kinkopf, a law professor at Georgia State University in Atlanta.

Mr. Kinkopf, a former Clinton administration Justice Department official who worked in the Office of Legal Counsel, presented a paper for the liberal American Constitution Society last week arguing that Congress has the power to stop President Bush from sending additional troops to Iraq — a move many expect him to announce this week.

“As commander in chief, the president’s role is to prosecute the war that Congress has authorized,” Mr. Kinkopf wrote. “The president may not go beyond this authorization.”

Mr. Kinkopf says that the law authorizing the Iraq war, passed by Congress in 2002, clearly includes the authority for the kind of surge in troop numbers currently being considered.

“As a legal matter, that [congressional] authorization was drafted broadly enough to encompass the escalation that the president has in contemplation,” Mr. Kinkopf wrote.

But, he argues, Congress could simply pass another authorization “effectively limiting the number of troops deployed in Iraq.”

As an alternative, Congress could pass a so-called “appropriations rider,” restricting the administration from spending any money to make the troop surge happen.

In either case, Mr. Bush would have to use his veto if he wanted to go ahead with any planned escalation, Mr. Kinkopf said.

But Carl Conetta, co-director of the project on Defense Alternatives, a think tank that researches military requirements in the post-Cold War world, told UPI that such a move would be politically tricky for the new Democratic leadership of the Congress.

“It would put them in a difficult position, one that could be spun by the administration as hamstringing the war effort,” he said. “That’s exactly where the administration’s supporters would like to put them.”

Mr. Conetta said that the Democrats might end up trying to “oppose this effort [at escalation] … without taking congressional action to stop it.”

But he said it was more likely they would “play every card to its conclusion,” and try to block any escalation — knowing that “in the end they will fail — that the president will get his way.”

“They may content themselves with complaining loudly,” he said.

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