Paul Simon
2009-01-03 23:30:05 UTC
The Iraq War Is Now Illegal
By Bruce Ackerman and Oona Hathaway, The Daily Beast. Posted January
3, 2009.
Ongoing combat in Iraq is illegal under US law. As of January 1,
Congress' authorization of the war expired.
The Bush administration's infatuation with presidential power has
finally pushed the country over a constitutional precipice. As of New
Year's Day, ongoing combat in Iraq is illegal under US law.
In authorizing an invasion in 2002, Congress did not give President
Bush a blank check. It explicitly limited the use of force to two
purposes: to defend the national security of the US from the threat
posed by Iraq and enforce all relevant UN Security Council
resolutions.
Five years after the fall of Saddam Hussein, the government of Iraq no
longer poses a threat. Our continuing intervention has been based on
the second clause of Congress' grant of war-making power. Coalition
troops have been acting under a series of Security Council resolutions
authorizing the continuing occupation of Iraq. But this year, Bush
allowed the UN mandate to expire on December 31 without requesting a
renewal. At precisely one second after midnight, Congress'
authorization of the war expired along with this mandate.
Bush is trying to fill the legal vacuum with the new Status of Forces
Agreement (SOFA) he signed with the Iraqis. But the president's
agreement is unconstitutional, since it lacks the approval of
Congress. Bush even refused to allow Congress access to the terms of
the deal. By contrast, Prime Minister al-Maliki followed his
constitution and submitted the agreement for parliamentary approval.
While the Iraqi parliament debated its terms, leading members of
Congress were obliged to obtain unofficial English translations of
texts published by the Arab press.
Bush defends his extraordinary conduct by claiming that it is
traditional for commanders in chief to negotiate status of forces
agreements without congressional consent. But the Iraqi agreement goes
far beyond anything in the traditional SOFAs concluded with close to
100 countries since World War II.
Indeed, it goes far beyond any sensible interpretation of the
president's power as commander in chief. For example, the SOFA creates
a joint US-Iraq committee and gives it, not the president, broad
control over the use of American combat troops. It thereby asserts the
authority to restrict President Obama's powers as commander in chief
throughout most of his first term in office. But under the
Constitution, no president can unilaterally limit his successor's
authority over the military.
This defective agreement cannot serve as a valid substitute for the
congressional authorization that Bush so casually allowed to expire on
December 31. It is up to Congress to authorize continuing military
action. Gaining the consent of a foreign power simply isn't enough.
The question is how Obama should respond to the legal catastrophe that
Bush has left as his Iraqi legacy. It's easy to eliminate one option.
Whatever the original infirmities of Bush's agreement, Obama should
not repudiate it. Now that Maliki has won approval from his
parliament, the agreement has become the basis for the next phase of
Iraqi politics. It also contains withdrawal timetables that are
compatible with Obama's goals: all combat troops out of Iraq's cities
by July; all troops out of Iraq by the end of 2011. As a consequence,
Obama may be tempted to accept the agreement that Bush has left
behind, and proceed without correcting its obvious constitutional
deficiencies.
But this would be a tragic mistake. We are living in an age of small
warssome are blunders, but some will be necessary. The challenge is
to sustain their democratic legitimacy by keeping them under
congressional control. If Obama goes along with the Bush agreement, he
will make this impossible. Future presidents will cite the Iraqi
accord as a precedent whenever they choose to convert Congress'
authorization of a limited war into an open-ended conflict.
There is a better way ahead. President Obama should submit the
Bush-Maliki agreement to Congress on January 20 and urge its speedy
approval. This request is likely to win broad bipartisan support.
Rapid congressional ratification will not only fill the legal vacuum
threatening the constitutional integrity of our military operations in
Iraq. Together with the closing of Guantanamo, it will show that Obama
is serious about reining in the worst presidentialist abuses of the
Bush years.
Members of the incoming administration have already taken steps in the
right direction. Both Secretary of State-designate Hillary Clinton and
Vice President-elect Joseph Biden took the lead as senators in
protesting Bush's unilateralism in the conduct of the Iraqi
negotiations. And Obama has made clear that he appreciates the role of
checks and balances in our constitutional scheme. Now is the time to
reverse the precipitous slide toward the imperial presidency.
By Bruce Ackerman and Oona Hathaway, The Daily Beast. Posted January
3, 2009.
Ongoing combat in Iraq is illegal under US law. As of January 1,
Congress' authorization of the war expired.
The Bush administration's infatuation with presidential power has
finally pushed the country over a constitutional precipice. As of New
Year's Day, ongoing combat in Iraq is illegal under US law.
In authorizing an invasion in 2002, Congress did not give President
Bush a blank check. It explicitly limited the use of force to two
purposes: to defend the national security of the US from the threat
posed by Iraq and enforce all relevant UN Security Council
resolutions.
Five years after the fall of Saddam Hussein, the government of Iraq no
longer poses a threat. Our continuing intervention has been based on
the second clause of Congress' grant of war-making power. Coalition
troops have been acting under a series of Security Council resolutions
authorizing the continuing occupation of Iraq. But this year, Bush
allowed the UN mandate to expire on December 31 without requesting a
renewal. At precisely one second after midnight, Congress'
authorization of the war expired along with this mandate.
Bush is trying to fill the legal vacuum with the new Status of Forces
Agreement (SOFA) he signed with the Iraqis. But the president's
agreement is unconstitutional, since it lacks the approval of
Congress. Bush even refused to allow Congress access to the terms of
the deal. By contrast, Prime Minister al-Maliki followed his
constitution and submitted the agreement for parliamentary approval.
While the Iraqi parliament debated its terms, leading members of
Congress were obliged to obtain unofficial English translations of
texts published by the Arab press.
Bush defends his extraordinary conduct by claiming that it is
traditional for commanders in chief to negotiate status of forces
agreements without congressional consent. But the Iraqi agreement goes
far beyond anything in the traditional SOFAs concluded with close to
100 countries since World War II.
Indeed, it goes far beyond any sensible interpretation of the
president's power as commander in chief. For example, the SOFA creates
a joint US-Iraq committee and gives it, not the president, broad
control over the use of American combat troops. It thereby asserts the
authority to restrict President Obama's powers as commander in chief
throughout most of his first term in office. But under the
Constitution, no president can unilaterally limit his successor's
authority over the military.
This defective agreement cannot serve as a valid substitute for the
congressional authorization that Bush so casually allowed to expire on
December 31. It is up to Congress to authorize continuing military
action. Gaining the consent of a foreign power simply isn't enough.
The question is how Obama should respond to the legal catastrophe that
Bush has left as his Iraqi legacy. It's easy to eliminate one option.
Whatever the original infirmities of Bush's agreement, Obama should
not repudiate it. Now that Maliki has won approval from his
parliament, the agreement has become the basis for the next phase of
Iraqi politics. It also contains withdrawal timetables that are
compatible with Obama's goals: all combat troops out of Iraq's cities
by July; all troops out of Iraq by the end of 2011. As a consequence,
Obama may be tempted to accept the agreement that Bush has left
behind, and proceed without correcting its obvious constitutional
deficiencies.
But this would be a tragic mistake. We are living in an age of small
warssome are blunders, but some will be necessary. The challenge is
to sustain their democratic legitimacy by keeping them under
congressional control. If Obama goes along with the Bush agreement, he
will make this impossible. Future presidents will cite the Iraqi
accord as a precedent whenever they choose to convert Congress'
authorization of a limited war into an open-ended conflict.
There is a better way ahead. President Obama should submit the
Bush-Maliki agreement to Congress on January 20 and urge its speedy
approval. This request is likely to win broad bipartisan support.
Rapid congressional ratification will not only fill the legal vacuum
threatening the constitutional integrity of our military operations in
Iraq. Together with the closing of Guantanamo, it will show that Obama
is serious about reining in the worst presidentialist abuses of the
Bush years.
Members of the incoming administration have already taken steps in the
right direction. Both Secretary of State-designate Hillary Clinton and
Vice President-elect Joseph Biden took the lead as senators in
protesting Bush's unilateralism in the conduct of the Iraqi
negotiations. And Obama has made clear that he appreciates the role of
checks and balances in our constitutional scheme. Now is the time to
reverse the precipitous slide toward the imperial presidency.