The War's Expiration Date—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97
The War's Expiration Date
By Bruce Ackerman ’67 and Oona Hathaway ’97
A crucial yet overlooked deadline looms over the Iraq debate: Unless further action is taken, the war will become illegal on Jan. 1, 2009.
Despite protestations to the contrary, Congress clearly understood that it was authorizing the president to intervene militarily when it passed its joint resolution authorizing the use of force in Iraq in October 2002. But it did not give him a blank check. It allowed for the use of force only under two conditions.
The first has long since lapsed. It permitted the president to "defend the national security of the United States against the continuing threat posed by Iraq." This threat came to an end with the destruction of Saddam Hussein's government. It makes no sense to say that it continues today, or that our "national security" is "threatened by" the Iraqi government headed by Nouri al-Maliki.
Instead, U.S. military intervention is authorized under the second prong of the 2002 resolution. This authorizes the president to "enforce all relevant United Nations Security Council resolutions regarding Iraq." This has allowed the Bush administration to satisfy American law by obtaining a series of resolutions authorizing the United States to serve as the head of the multinational force in Iraq.
But here's the rub. The most recent U.N. resolution expires on Dec. 31, and the administration has announced that it will not seek one for 2009. Instead, it is now negotiating a bilateral agreement with the Iraqi government to replace the U.N. mandate.
Whatever this agreement contains, it will not fill the legal vacuum. That's because the administration is not planning to submit this new agreement to Congress for its explicit approval. Since the Constitution gives the power to "declare war" to Congress, the president can't ignore the conditions imposed on him in 2002 without returning for a new grant of authority. He cannot substitute the consent of the Iraqi government for the consent of the U.S. Congress.
This simple point hasn't yet gained the attention it deserves. While the presidential candidates debate whether we should be in Iraq for the next two years or the next 100, nobody is focusing on the next few months.
Meanwhile, the Bush administration continues to support its unilateral expansion of war aims with inadequate arguments. At a recent congressional hearing, David Satterfield, the administration's coordinator for Iraq, claimed that the 2002 resolution authorized the continuing use of force against al-Qaeda in Iraq. But al-Qaeda only came into Iraq as a result of U.S. intervention. Congress only authorized the use of force to defend against the "continuing threat" posed by Iraq, not all threats that might someday exist in Iraq.
Other administration arguments are worse. It has suggested that Congress's "war on terror" resolution, passed a week after 9/11, provides sufficient legal support for continuing the war in 2009. But this claims far too much. If that were true, then President Bush could have unilaterally invaded Iraq in 2002 without any further congressional decision. Only the most extreme presidentialist would go this far.
The administration has also suggested that Congress has legally sanctioned the war by continuing to appropriate funds for it. But approving funds is not sufficient to authorize military action. If it were, the president could start any fight he pleased, and then force Congress to choose between exercising its constitutional powers and supporting the troops.
There's a simple solution to all these problems: Extend the U.N. mandate for 2009. That would put the use of U.S. armed forces on firm international and domestic legal footing. And it would allow the next president and Congress time to consider the future in a deliberate way.
Reps. William Delahunt (D-Mass.) and Rosa DeLauro (D-Conn.) have proposed legislation to do just that. This initiative deserves bipartisan support. It represents the only practical way to confront the lawless unilateralism that the administration plans for New Year's Day.
Bruce Ackerman and Oona Hathaway are professors of law at Yale.