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How Obama can fix an illegal war—A Commentary by Oona Hathaway ’97 and Bruce Ackerman ’67

The following commentary was published in the San Francisco Chronicle on January 23, 2009.

How Obama can fix an illegal war
By Oona Hathaway ’97 and Bruce Ackerman ’67

In his inaugural address, President Obama declared that he would bring a responsible end to the war in Iraq. To do so, he must repair the unconstitutional agreement that governs America's military presence.

President Bush concluded the agreement with Iraq on his own authority. He ignored repeated calls -- by Sens. Hillary Rodham Clinton and Joe Biden, among others -- to submit it to Congress for approval. He claimed that it was traditional for presidents to negotiate status of forces agreements (SOFAs) without congressional consent. But the Iraqi agreement goes far beyond any previous SOFA. It even gave away Obama's powers as commander in chief by granting a U.S.-Iraq committee broad control over American combat troops. This extraordinary action requires congressional approval.

When Congress authorized the Iraq invasion in 2002, it explicitly limited the use of force to two purposes: to "defend the national security of the U.S. from the threat posed by Iraq" and to "enforce all relevant U.N. Security Council resolutions." We defeated Saddam Hussein long ago and the last U.N. resolution expired on New Year's Day. When President Bush committed American troops to continue to fight without congressional approval, he created a dangerous precedent that allows future presidents to transform limited wars into open-ended conflicts.

President Obama should fill the legal vacuum Bush has left behind. He should submit the agreement to Congress for its consent. This would allow a broad majority of Republicans and Democrats to give bipartisan support to our troops, and place our military operations on a firm constitutional foundation.

Oona Hathaway is a professor of law at UC Berkeley School of Law; and Bruce Ackerman is a professor of law at Yale Law School. This is one of the Blue Sky: New ideas for the Obama administration commentaries. http://ideas.berkeleyl awblogs.org/