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The Iraq War Is Now Illegal
Khalid Mohammed/AP Photo
The Bush administration is ringing in 2009 with a fresh constitutional mess.
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.”
At precisely one second after midnight, Congress’ authorization of the war expired… The question is how President Obama should respond to the legal catastrophe that Bush has left as his Iraqi legacy.
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 wars—some 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.
Bruce Ackerman and Oona Hathaway are professors of law at Yale and the University of California Berkeley, respectively.
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Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of 15 books on political philosophy, constitutional law, and public policy. His works include Social Justice in the Liberal State, the multivolume constitutional history, We the People, The Failure of the Founding Fathers and Before the Next Attack.
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Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of 15 books on political philosophy, constitutional law, and public policy. His works include Social Justice in the Liberal State, the multivolume constitutional history, We the People, The Failure of the Founding Fathers and Before the Next Attack.
cajola
This news why we have known for a long time about that...time for the administration to be brought to justice for it now.
billblock76
As soon as Obama is sworn in, GWB should be handcuffed and taken to Gitmo while awaiting trial...
estcruzer
I believe the agreement should be reworked to make it constitutional before being sent off to congress. If it does contain unconstitutional parts they should either be excised by Bush before sending it to congress, excised by congress once they receive the request to ratify it or the whole thing should be trashed by Bush or congress. If all else fails our supreme court should be allowed to determine the constitutionality of the parts in question. In any case the power grab by the Bush administration should be thwarted and a balance of checks reinstituted reflecting the original intent of the framers of the constitution which were reacting to a tyranical monarchy (reminiscent of many Bush/Bush Administration actions) in an attempt to give some power back to the people.
As to whether or not GWB should be sent to jail for treason, I agree but it is not likely to happen. There is a good ol'boys tradition at that level that precludes putting presidents in jail, no matter how much they break the law or commit treason. The basic problem is that future presidents have a fear that if the precedent is set they will be caught up in a moral dilemma and actually violate the law of the land to do the "right" thing for the country (this is Bush's justification for instance). Of course the "right thing" is open to interpretation and supposedly by electing the president the majority of the electorate has chosen the president's interpretation as their own. Of course, if the president hasn't declared their interpretation/agenda (again like Bush) then the "right thing" interpretation is on shaky ground because we may not have voted for that person had we known the extent of their depravity (like Bush). In any case how do you poll whether or not the populace that elected a president now thinks that this president should be tried for treason?
Maybe there should be such a vote every 4 years as a new president is elected, add it to the ballot - Should president [fill in the blank] be tried for treasonous acts during their administration? Yes__ No__
ortega
Very easy.
Obama should do the same he has done with the change via clintonites and Guantanamo: just keep going. Or do you imagine anything else?
photoshock
This is the watershed! We the people, are now faced with an ongoing and difficult problem, not of our making, but one which if continued will cause an uprising of the South American kind.
We must take back the reins of power from the elite and industrial executives that have controlled the American landscape for the last 30 years. If we do not do this very thing, then we will have lost our rights to dissent an protest any decision made by the elitist-industrial complex.
It will be an Amerikkkan, government that controls every aspect of its citizens lives and does not work for the good of the people, but the betterment of those elitists and boardroom executives that control the lives of the wage slaves under their power.
I am appalled that President-elect Barack Obama, has not taken a stand and spoken out against the atrocities being committed in the name of democracy in Israel against the Palestinian people, let alone the illegal and immoral way in which the Iraq and Afghanistan conflicts are being prosecuted.
If there is anyone with the sense G-d gave them that listens and reads the words put down on blogs such as this, we are now being illegally committed to a course of action that cannot and will not pay any dividends other than more and more funerals and thousands upon thousands of irreparably harmed young men and women that must be taken care of for the rest of their natural lives. This does include those who will be harmed emotionally as well as physically.
Our system of Veterans Affairs cannot handle the flow of people into the care of the V.A. We do not fund the hospitals and clinics sufficiently and this undermines the care that these brave men and women should be receiving.
debbieqd
Well said. I hope you sent a copy to President-Elect Obama.
Why can't a country as great as ours bring men like Bush and Cheney to justice? We are much worse off -- and much impoverished for not having the political will to do it. There must be at least 30 counts for which they could be indicted.
Stromko
I believe Obama's been quoted as saying the United States only has one president at a time. He's certainly in a powerful political position as the incoming president, but when push comes to shove, he's not president yet.
If he made it clear that the current administration would find themselves taken to account for their excesses, I have my doubt that they'd actually leave office as they should. Bush and Cheney have no greater maturity or morality than any dictator we've ever known, the only thing keeping them moderately sane is the firm belief that they're in no danger of being punished.
It sounds a little nuts, and it probably is, but I reckon at least a 20% chance of some kind of coup in the next year. Most likely one coming from the top, something like the current president declaring himself (in all but name) Emperor-for-Life. History's shown a precedent for such, and let's face it, the rank and file North American is hardly better than the old debauched Romans when it comes to keeping their government in check. So long as we've got our equivelant of bread and circuses (or 500$ rebate checks and cable TV) most people will just go with the flow.
You know when I write it out like that it does just sound insane and paranoid. But hey, it's only a /possibility/, not a certainty, and the top figures in the administration have already commited high treason and (possibly) assassinations of U.S. citizens (Athan Gibbs, etc), so it does indeed seem to be a possibility backed up by reality as I see it.
cajola
I also believe Bush and Cheney should be brought to justice over the Iraq war and other things they have done....they have shown such pathetic interest in the troops and how they are dealt with when they come home.
It was easy enough for them to send them off to war but they haven't shown the slightest interest in how their physical and mental needs are addressed once they come home.
Issywise
OH FOR GOD'S SAKE! When are American morons going to get it through their heads that the legality of our foreign policy is not going to ever be determined by the UN veto of France, Russia or China.
When Kofe Annan made the argument, it was self-aggrandizing. When the foreign minister of France made the argument it was an attempt to be self-empowering. When Jimmy Carter and other Americans make the argument it shows how flexible they think the law is: They believe the law must comply with and enforce their personal political opinions.
Talk about some self-righteous nitwits. If they felt the opposite way about the policy, guess what the law would say?
To point out the obvious to these Americans: We have NOT legally delegated our national power to determine where use of force is necessary to protect us to France, Russia and China.
Just because you don't like a policy doesn't make it illegal: Who are you? God?
Airborne855
@Issywise
According to the Constitution of the United States, any treaty that America ratifies becomes the supreme law of the land. Any violation of the terms thereof is illegal.
(Signed) God
wbishop12
AMEN billblock76 !!!!!
shempcaligula
Lets leave George out of this.Lets put that sociopath Dick Vice President in Gitmo for about 8 years with some waterboarding until his tiny little heart explodes.
eemka1
It's all over in a few days - let it go - leave it to the history books to make the final judgement! We need a fresh start.....
penscott
Some of the posters here, like shempcaligula and others, reveal the classic leftist trait of wanting to jail their opponents. This has happened over and over, by Castro, by the East Europeans in the forties, by the Maoists,etc etc. Thank God Obama does not think like these crazies, though they supported him.
Hawnzz
As an independent, I find the Bush administration so reprehensible that they should be behind bars. This isn't just about policy. This is about blatant abuse of power, corruption, and so many actions taken that are illegal by any measure that I'm amazed they got away with it. Where are the checks and balances? How could this happen here? I'm more disappointed in the American people then I am in the administration. We should know better.
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