Bruce Ackerman and Oona Hathaway:
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.
There's only one problem I see with this argument: if the Congress doesn't press the issue, who will? Citizens could try to sue, but standing would likely be an issue. Perhaps if someone on active duty filed the suit?
Either way, it doesn't seem that's what the authors have in mind:
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.
That would be one way to handle it, but for the war's most committed opponents, it certainly wouldn't be the preferred way. For them, this would seem to be the perfect venue for a fight to stop the war. Except.... what precisely would happen if 2009 rolls around without any sort of reauthorization? Unfortunately, I have no idea, and it doesn't seem like these authors do either.
Would entering 2009 without a resolution lead to a form of "lawless unilateralism" by the Bush administration? Yes. But only for three weeks. After that it will be an issue for the new president to solve. So... it seems to me that if we're going to reauthorize, it should only be for a very brief period, perhaps something on the order of 3-6 months. We already know the war is a problem that will be left for the next presidential administration and Congress to solve, so what's the harm in making that official?
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