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What Obama Should Say—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97

The following commentary was posted on the Huffington Post on August 30, 2010.

What Obama Should Say
By Bruce Ackerman ’67 and Oona Hathaway ’97

A speech from the Oval Office brings out the worst in presidents, tempting them to present themselves as the ultimate deciders on matters of war and peace. It won't be easy, then, for President Obama to rise above theatrics and confront the dark legacy of executive unilateralism left by the Bush Administration. Nevertheless, his silence on this issue will consolidate the remarkable precedent left by Bush in pushing Congress to the sidelines in defining war-aims in Iraq.

When Congress first authorized the initial invasion in 2002, it did not give President Bush the blank check he had demanded. It only authorized the military to rid the country of weapons of mass destruction, topple the Hussein government, and remain in Iraq for as long as authorized by the Security Council.

As it became clear that the UN's mandate would lapse at the end of 2008, President Bush refused to return to Congress to gain additional war-making authority. Instead, the Administration announced its intention to make a unilateral deal with the Maliki government that would continue the war beyond the limits set by Congress.

This provoked a firestorm of criticism. Joseph Biden, then Chairman of the Senate Foreign Relations Committee, introduced a bill insisting that any agreement with Iraq "should involve a joint decision by the executive and legislative branches." Hillary Clinton went further condemned as "outrageous" Bush's effort "to circumvent Congress on a matter of such vital interest to national security." Her bill would have cut off all funding for military actions under any unilateral agreement. Barack Obama not only co-sponsored the Clinton initiative, but repeated his opposition on the campaign trail, stating that any agreement "should be subject to Congressional review."

The Bush Administration utterly ignored these critics, never responding to repeated demands by Congressional leaders of both parties to learn even the barest details of its negotiating position. Only after the November elections did Bush and Maliki announce their agreement, authorizing American military force through the end of 2011. Since Iraq's new Constitution required parliamentary consent, Maliki followed its terms and gained the requisite support. In contrast, Bush simply declared that his new unilateral commitment on behalf of the United States would replace the expiring UN resolution as of January 1, 2009.

So matters stood when President Obama took office on January 20th - and so they stand today. The Obama-Biden-Clinton team has simply acted on the basis of the Bush-Maliki agreement without explaining what gives it the constitutional authority to do so. The entirely sound objections they voiced in 2008 have been conveniently forgotten.

Up to a point, silence may have been the best policy. A candid acknowledgment that the agreement was unconstitutional would have left the troops in the lurch and destabilized the Iraqi government. Here, as elsewhere, it will take patience and ingenuity to undo the dark constitutional legacy of the Bush years.

The time to begin is now. With Americans formally retiring from their combat role in Iraq, we should be revisiting constitutional fundamentals. From the days of John Marshall, the Supreme Court has repeatedly affirmed Congress' authority to define the scope of limited wars. Unless Obama begins to demonstrate his fidelity to this principle, he will be setting a terrible precedent for future presidents.

The twenty-first century will be an era of limited war, and if the Bush power-grab is further legitimated by Obama, future presidents will predictably use the Bush-Obama consensus as the basis for their own similar "bait-and-switch" operations - asking Congress to approve a carefully limited conflicts, then escalating the war unilaterally even as popular support wanes.

There is no need for Obama to take precipitous action. Like it or not, the Bush-Maliki agreement, setting December 31, 2011 as the withdrawal date for all American troops, is established policy. But Obama should make it clear that Congress will be a full partner on any decision extending American military commitments beyond this date. This includes any decision to maintain tens of thousands of troops classified in so-called "training" missions that put them in clear and present danger. Otherwise, his decision to use a speech from the Oval Office to define Iraq policy will merely create the impression that he is using the powers of the imperial presidency to correct the blunders of his predecessor.

Americans are entitled to more. They expect their president to make good on his campaign promise to restore Congress' constitutional role in defining the scope of limited wars, and thereby sustain the Founding tradition of checks-and-balances into the twenty-first century.

Bruce Ackerman and Oona Hathaway are professors at Yale Law School.