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Context of 'August 2002: Bush Lawyers Develop ‘Inherent Power’ Argument for Unilaterally Taking Nation to War'

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President Theodore Roosevelt, wielding what will become known as the theory of inherent power, declares that the presidency has a “residuum of powers” to do anything not specifically forbidden by the Constitution. Without asking Congress for its approval, Roosevelt launches the project to build the Panama Canal, sends the US Navy around the world, and sends US troops to the Dominican Republic. In 2009, reporter and author Charlie Savage will write, “Roosevelt’s views… contained the seeds of the imperial presidency that would arise during the first decades of the Cold War.” Roosevelt’s successor, future Supreme Court Chief Justice William Howard Taft, will disagree, and Taft’s presidency will restore some of the limits on presidential power removed by Roosevelt. [Savage, 2007, pp. 17-18]

Entity Tags: William Howard Taft, Charlie Savage, Theodore Roosevelt

Timeline Tags: Civil Liberties

The US Supreme Court rules that the federal government cannot seize the nation’s steel mills. In April, President Truman, fearing a nationwide strike that could impact the US war effort in Korea, ordered the seizure of all US steel mills; the lawsuit that resulted, Youngstown Sheet & Tube Co. v. Sawyer, quickly made its way to the Supreme Court.
Rejection of 'Inherent Powers' Claim - During oral arguments, the justices grilled Acting Attorney General Philip Perlman, demanding to know what statutes he had relied on for his arguments and asserting that the president had limitations both on his emergency wartime powers and on his ability to claim that he is the “sole judge” of the existence of, and remedies for, an emergency. The justices are not convinced by the government’s arguments for the president’s “inherent powers.” They are also troubled by repeated refusals of the government to provide facts and documentary backing for its legal arguments, and its reliance instead on claims of “national security.” The attorney for the steel industry, John Davis, quoted Thomas Jefferson in his argument: “In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.” Justice William O. Douglas noted that if the government’s claims were valid, there would be “no more need for Congress.”
Court Rejects Argument - In a 6-3 vote, the Court rules that the president has no inherent power to seize the steel mills. Writing for the majority, Justice Hugo Black states: “In the framework of our Constitution, the president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.… The founders of this nation entrusted the lawmaking power to the Congress alone in both good and bad times.… This is a job for the nation’s lawmakers.” In a concurring opinion, Justice Robert Jackson writes, “No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role.” In his dissent, Chief Justice Fred Vinson (see March 1952) argues that “the gravity of the emergency” overrides the Constitutional arguments accepted by the majority of the Court. “Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict.” [Savage, 2007, pp. 123; Siegel, 2008, pp. 163-164] In 2007, reporter and author Charlie Savage will observe that the Youngstown decision “turned out to be only a pause in the movement toward an increasingly authoritarian presidency.” [Savage, 2007, pp. 19]

Entity Tags: William O. Douglas, John Davis, Hugo Black, Charlie Savage, Fred Vinson, Harry S. Truman, Philip Perlman, US Supreme Court

Timeline Tags: Civil Liberties

The United Nations passes Resolution 678. The resolution gives Iraq until January 15, 1991 to withdraw entirely from Kuwait (see July 25, 1990) and restore its national sovereignty. The US uses UN authority to build a “coalition” of nations to support its upcoming “Desert Storm” operation designed to repel Iraqi forces from Kuwait (see January 16, 1991 and After). 34 countries contribute personnel: Afghanistan, Argentina, Australia, Bahrain, Bangladesh, Belgium, Canada, Denmark, Egypt, France, Greece, Italy, Kuwait, Morocco, The Netherlands, New Zealand, Niger, Norway, Oman, Pakistan, Philippines, Portugal, Qatar, Republic of Korea, Saudi Arabia, Senegal, Sierra Leone, Singapore, Spain, Syria, the United Arab Emirates, the United Kingdom and the United States. West Germany and Japan do not contribute forces, but they do contribute $6.6 billion and $10 billion, respectively, to the cause. While some countries join out of a sincere belief that Iraq must not be allowed to dominate the region and control Middle Eastern oil reserves (see August 7, 1990), others are more reluctant, believing that the affair is an internal matter best resolved by other Arab countries, and some fear increased US influence in Kuwait and the region. Some of these nations are persuaded by Iraq’s belligerence towards other Arab nations as well as by US offers of economic aid and/or debt forgiveness. [NationMaster, 12/23/2007] As with all such UN resolutions, Iraqi dictator Saddam Hussein rejects this resolution. [PBS Frontline, 1/9/1996]

Entity Tags: Saddam Hussein, United Nations

Timeline Tags: Events Leading to Iraq Invasion

Faced with a lawsuit from 53 members of Congress demanding that he seek Congressional authorization before invading Iraq (see December 1990 and January 16, 1991 and After), President Bush asks Congress for such an authorization. His carefully worded request does not directly acknowledge the constitutional requirement that Congress authorize any military involvement by the US. After three days of what the New York Times calls “solemn, often eloquent debate,” both chambers of Congress approve the war resolution. [PBS Frontline, 1/9/1996; Dean, 2007, pp. 90-91] That authority is granted in part because of propaganda efforts mounted by Pentagon and Kuwaiti officials (see October 10, 1990). Even with such powerful persuasive tactics, the vote in the US Senate is 52-47 and 250-183 in the US House of Representatives, the closest such vote since the War of 1812. [NationMaster, 12/23/2007]
House Reminds Bush that Congress Retains Power to Declare War - The House passes another resolution, 302-131, informing the White House that Congress has the exclusive authority under the Constitution to declare war. Of this second resolution, author and former Nixon White House counsel John Dean will write in 2007, “The breakdown of the vote is telling: 260 Democrats and 41 Republicans along with one independent voted to support the wording and clear intention of Article I of the Constitution; 126 Republicans and 5 Democrats, all hard-right conservatives (including Tom DeLay, R-TX, and two would-be presidents of the United States, Newt Gingrich, R-GA and Duncan Hunter, R-CA) voted against the resolution.” [Dean, 2007, pp. 90-91]
Gore Persuaded to Support War by Wilson - One of the few Democratic senators to vote for the war is Al Gore (D-TN). Gore takes time from the floor deliberations to speak with the ranking US diplomat in Iraq, Joseph Wilson, who once served as Gore’s aide (see September 5, 1988 and After). Gore grills Wilson for twenty minutes on the efficacy of US sanctions against Iraq (see August 6, 1990) and the necessity of US intervention to free Kuwait before returning to the Senate to vote for the authorization. Wilson later writes of his outrage that Gore’s fellow senator, Alan Simpson (R-WY), would accuse Gore during the 2000 election of being what Simpson will call “Prime Time Al” for the timing of his speech in favor of the war authorization. Wilson recalls Simpson as the senator who had been “practically on bended knee before Saddam in April 1990, reassuring the Iraqi dictator that he had a press problem and not a policy problem” (see April 12, 1990). Wilson will continue, “It was an outrage that a decade later he had the nerve to be critical of the one senator who had really taken the time to listen to an analysis from the field and factor that into his decision on what most senators agreed was one of the most momentous votes of their careers.” [Wilson, 2004, pp. 163-164]

Entity Tags: Tom DeLay, New York Times, Joseph C. Wilson, Newt Gingrich, George Herbert Walker Bush, Albert Arnold (“Al”) Gore, Jr., Duncan Hunter, Bush administration (41), Alan Simpson, John Dean

Timeline Tags: Events Leading to Iraq Invasion

While the Bush White House publicly denies any desire for war with Iraq, and says it is committed to working with the United Nations to find a diplomatic course of action, behind the scenes the administration’s lawyers are working on a legal justification for war. White House counsel Timothy Flanigan develops a legal position that argues the president needs no Congressional authorization to attack Iraq. Flanigan’s superior, chief White House counsel Alberto Gonzales, presents Flanigan’s legal rationale to President Bush. Flanigan’s chief argument is that the president’s “inherent power as commander in chief” (see 1901-1909 and June 2, 1952) gives him the right to unilaterally take the country to war. Flanigan’s backup position is invoking the 1991 Congressional authorization for the Persian Gulf War (see January 9-13, 1991), and the UN Security Council’s resolutions from that time period (see November 29, 1990). Nevertheless, the White House will demand an authorization for war from Congress (see October 11, 2002)—an authorization White House officials say Bush has no intention of using except as a means of bringing diplomatic pressure against Iraq. [Savage, 2007, pp. 156]

Entity Tags: Alberto R. Gonzales, Bush administration (43), Timothy E. Flanigan

Timeline Tags: Events Leading to Iraq Invasion, Civil Liberties

White House officials, in interviews with the New York Times, describe the administration’s strategy to convince the public, Congress, and US allies of the need to confront Iraq. They say the centerpiece of the strategy will be Bush’s September 11 speech at Ellis Island in New York Harbor, which they have been planning since at least June. (The speech will not actually make a case for confronting Iraq. Bush will first make his case to the nation in his October 7 speech (see February 20, 2001).) Explaining why the White House did not launch this effort in August when the administration’s plans came under intense criticism from a number of different quarters, White House Chief of Staff Andrew Card tells the New York Times, “From a marketing point of view, you don’t introduce new products in August.” Card is the founding member of the White House Iraq Group (see August 2002 and June 9, 2008), which was formed to “educate the public” on the alleged threat from Iraq. The officials also tell the Times that one of the administration’s goals is for Congress to pass a resolution approving the use of force in Iraq within the next four to five weeks. “In the end it will be difficult for someone to vote against it,” one administration official tells the Times. [New York Times, 9/7/2002] In 2007, author and reporter Charlie Savage will write: “The proposed hurry-up vote on the eve of the first election since 9/11 presented a win-win scenario for the White House: If Democrats voice caution or skepticism about the proposed war resolution (see October 11, 2002), then the GOP could portray them as weak on terrorism ahead of the election, and if Democrats supported the bill, then the Bush-Cheney administration would fortify its powers by eliminating even the suggestion that it might later need to ask for permission to launch any war against Iraq” (see August 2002). By mid-September, Republican Congressional candidates will make Iraq a central issue of their campaigns, proclaiming unwavering support for Bush and attacking their Democratic opponents. In New Mexico, Republican House candidate Mike Pence will say of his opponent, John Arthur Smith, who is still considering whether or not to support the invasion, “While Smith ‘reflects’ on the situation, the possibility of a mushroom cloud hovering over a US city (see September 4, 2002) remains.” In Minnesota, Republican Senate candidate Norm Coleman will attack Democratic incumbent Paul Wellstone for refusing to “stand with the president.” Similar tactics will be used in campaigns around the country. As a result, almost every Democrat facing re-election joins Republicans in supporting the war authorization. Savage will write, “Thus, even though the Founders wanted Congress to make the final decision about when the United States should go to war, lawmakers abdicated their responsibility and delegated their power to the president.” [USA Today, 10/13/2002; Savage, 2007, pp. 156-157]

Entity Tags: Norm Coleman, Mike Pence, Andrew Card, White House Iraq Group, Bush administration (43), John Arthur Smith, Charlie Savage, Paul Wellstone

Timeline Tags: Events Leading to Iraq Invasion, Domestic Propaganda

US senators vote 77 to 23 in favor of SJ Res. 46 (see October 2, 2002) authorizing the president to use military force against Iraq, despite significant opposition from their constituencies. [US Congress, 10/2/2002; Washington Post, 10/11/2002] Democratic senators Carl Levin (D-MI), Richard Durbin (D-IL), Barbara Boxer (D-CA), Robert Byrd (D-WV), and Mark Dayton (D-MN) attempt to come up with an alternative, SJ Res. 45, but discussion on it is postponed indefinitely by a 75 to 25 vote. [US Congress, 9/26/2002]
Sen. Carl Levin. SJ Res. 45 with Amendments 4858-62 (Rejected) - “To authorize the use of the United States Armed Forces, pursuant to a new resolution of the United Nations Security Council, to destroy, remove, or render harmless Iraq’s weapons of mass destruction, nuclear weapons-usable material, long-range ballistic missiles, and related facilities, and for other purposes.” [US Congress, 10/10/2002]
Sen. Richard Durbin. SJ Res. 45 with Amendments 4865 (Rejected) - To amend the authorization for the use of the Armed Forces to cover an imminent threat posed by Iraq’s weapons of mass destruction rather than the continuing threat posed by Iraq.
Sen. Barbara Boxer. SJ Res. 45 with Amendments 4866-67 (Not Voted On) - “In families with minor children where both parents serve on active duty in the Armed Forces or where both parents are members of the National Guard or Reserves, the secretary of defense shall make every effort to ensure that not more than one of the parents is deployed in combat.”
Sen. Robert Byrd. SJ Res. 45 with Amendments 4868 (Rejected) - To provide statutory construction that constitutional authorities remain unaffected and that no additional grant of authority is made to the president not directly related to the existing threat posed by Iraq. [US Congress, 10/10/2002]
Sen. Robert Byrd. SJ Res. 45 with Amendments 4869 (Rejected) - To provide a termination date for the authorization of the use of the Armed Forces of the United States, together with procedures for the extension of such date unless Congress disapproves the extension. [US Congress, 10/10/2002]
Sen. Mark Dayton. SJ Res. 45 with Amendments 4870 (Rejected) - Allows the president to prepare for the deployment—not use—of the US Armed Forces. If he determines that the use of force is necessary to protect the US from an imminent threat posed by Iraq, he may request a declaration of war to be voted upon by Congress. [US Congress, 10/10/2002]
Many Opponents Believe Iraq a Threat - Even some of the most ardent opponents of the war believe the allegations about Iraq’s WMD: Senator Russ Feingold (D-WI) says, “I believe that Iraq presents a genuine threat, especially in the form of weapons of mass destruction: chemical, biological, and potentially nuclear weapons.” [Unger, 2007, pp. 266]
Senators Lack Key Information for Informed Vote - Virtually none of the senators, for or against the use of force, bothered to read the National Intelligence Estimate on Iraq to help them ascertain the reality behind the administration’s insistence on the necessity for military action (see October 1, 2002). Almost all of them relied instead on briefings from administration officials. They were not told of the doubts about the Niger documents (see October 9, 2002), or the doubts surrounding the intelligence source dubbed “Curveball” (see Mid- and Late 2001). Nor are they aware that the CIA has “turned” Iraqi Foreign Minister Naji Sabri, who says that Iraq has long since terminated its WMD programs (see Late September 2002). [Unger, 2007, pp. 265]
Senate Leadership 'Caved in,' Former Ambassador Says - Former ambassador Joseph Wilson will write in 2004 that while a number of Senate Democrats opposed giving Bush a “blank check” to use military force as he sees fit, the efforts fail because “the Democratic leadership essentially caved in. The combination of threats of defeat at the polls with presidential promises that the congressional resolution would provide him the ammunition he needed to negotiate a strong UN resolution on disarmament proved to be too much for careerist politicians.” [Wilson, 2004, pp. 328]
Former Senator Says Electoral Politics Were Key to Vote - In 2009, Senator Bob Graham (D-FL), the chairman of the Senate Intelligence Committee, will reflect: “Unlike the first George Bush, who had purposefully put off the vote on the Persian Gulf War until after the elections of 1990—we voted in January of 1991 (see January 9-13, 1991)—here they put the vote in October of 2002, three weeks before a congressional election. I think there were people who were up for election who didn’t want, within a few days of meeting the voters, to be at such stark opposition with the president.” [Vanity Fair, 2/2009]

Entity Tags: Daniel Robert (“Bob”) Graham, Barbara Boxer, Mark Dayton, Carl Levin, Richard (“Dick”) Durbin, Robert C. Byrd

Timeline Tags: Events Leading to Iraq Invasion

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