Many people have called the conflict in Iraq an "Illegal War". Usually they mean that the justifications used to sell this War to Congress were fabricated and have since proven to be incorrect - and that the President had a responsibility under the Iraq War Resolution (HJ. 141) to ensure that the allegations of connections to Al Qaeda, WMD's and Nuclear aspirations were true prior to the beginning of hostilities.
But I've come to wonder, should the President have ever been given such responsiblities and power at all? Essentially The President Declared the War, instead of Congress - and that is Unconstitutional.
Maybe what needs to happen to end the War, is simply overturn the Resolution that authorized it.
HJ 141, the Joint Resolution to Authorize Use of Force Against Iraq, is very cleverly written. The Justifications given for War were the following:
- Iraq's noncompliance with the conditions of the 1991 cease fire
- Iraq's weapons of mass destruction, and programs to develop such weapons, posed a "threat to the national security of the United States and international peace and security in the Persian Gulf region"
- Iraq's "brutal repression of its civilian population"
- Iraq's "capability and willingness to use weapons of mass destruction against other nations and its own people"
- Iraq's hostility towards the United States as demonstrated by the 1993 assassination attempt of George Bush Sr, and firing on coalition aircraft enforcing the no-fly zones following the 1991 Gulf War
- Iraq's connection to terrorist groups, including Al Qaeda
- Fear that Iraq would provide weapons of mass destruction to terrorists for use against the United States.
As we now know, Items #2,4,6 and 7 are all untrue as has been well documented by the Senate Inteligence Report, and the Iraq Survey Group's Dulfer Report. But my point here isn't the issue of the truthfulness and accuracy of pre-war intelligence -- it's whether or not Congress has the power to delegate it's own exclusive authority to declare war - to the Executive.
Persuant to the Above, HJ 141 included the following:
Sec 3. (b) PRESIDENTIAL DETERMINATION.
In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon there after as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq, and
(2) acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001. [Vyan: Which again, had nothing to do with Iraq]
Essentially this section states that the President has the choice of whether to use force or not based on his determination of the previously listed factors. Sen. John Kerry has long argued that the President needed this authority in order to "toughen" his negotiations with Iraq and force them into compliance with long-standing UN Sactions. He argued, correctly I think, that the resolution did not in and of itself declare War - the resolution was intended for intice Saddam to disarm (which he already had), and that the use force was to only be at the last resort based on the "President's determination" - not that determination of Congress.
Kerry on caution and patience:
Indeed over the course of the last 6 weeks some of the strongest and most thoughtful questioning of our Nation's Iraq policy has come from what some observers would say are unlikely sources: Senators like CHUCK HAGEL and DICK LUGAR, former Bush Administration national security experts including Brent Scowcroft and James Baker, and distinguished military voices including General Shalikashvili. They are asking the tough questions which must be answered before--and not after--you commit a nation to a course that may well lead to war.
Writing in the New York Times in early September, I argued that the American people would never accept the legitimacy of this war or give their consent to it unless the administration first presented detailed evidence of the threat of Iraq's weapons of mass destruction and proved that it had exhausted all other options to protect our national security.
The point is further made by the fact that the resolution was passed and signed on October 16, 2002 -- yet the actual War itself didn't begin until March 20 of 2003, five months later. Clearly, Congress did not Declare War, the President did based on his determination, not theirs and this violates the War Powers Clause of the Constitution (Article I, Section 8) which clearly delegates the exclusive authority to declare War to the Congress - not the President.
I fully understand and on principle agree with Kerry's reasoning behind providing the President all the tools he needed in order to protect the country, but this is one tool - the ability to Wage War - is one that the Congress literally did not have the power to give over to him, it is their exclusive responsibilty - but they didn't do it, they punted it five months down the road.
Sometimes referred to as the War Powers Clause, the United States Constitution, Article One, Section 8, Clause 11, vests in the Congress the exclusive power to declare war.
Five wars have been declared in American history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. Some historians argue that the legal doctrines and legislation passed during the operations against Pancho Villa constitute a sixth declaration of war.
However, beginning with the Korean War, American presidents have not sought formal declarations of war, instead maintaining that they have the constitutional authority, as commander in chief (Article Two, Section Two) to use the military for "police actions".
In 1973, Congress passed the War Powers Resolution, which requires the president to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities. [ Vyan: such a declaration in accordance with the WPR is included in HJ 141.] Its constitutionality has never been tested as Congress has always passed the required authorization when requested by the president.
Some legal scholars maintain that all military action taken without a Congressional declaration of war (regardless of the War Powers Resolution) is unconstitutional; however, the Supreme Court has never ruled directly on the matter.
It seems to me that there may be legal means to challenge the legitimacy of HJ 141 on the basis that it's Presidential Determination Section (#3(b) above) directly violates the War Power Clause of the Constitution by shifting Congressional Powers from the Legislative to the Executive branches. IMO what should have happened was that the President should have been given a "Sense of the Congress" Resolution supporting an initial use of force only after presenting his determination to Congress, (or only with a 30-day leash as noted in the War Powers Resolution of 1973). That his determination had to include a full and detailed report to Congress on the status the entire list of grievances against Iraq before being allowed to continue into prolonged War, or else any current action should have been stopped. Congress should have made the determination and declaration of War only after receiving reports from UN Inspectors, IAEA and ISG substantiating the claims against Saddam.
No, President should be granted the sole power to take us to War, yet that is exactly what happened here.
In short, this really is an Illegal an Unconstitutional War. It's high time we started putting some legal muscles behind proving exactly that. The ACLU has already sued Donald Rumsfeld for his use of torture against terrorist detainees, does anyone think they or other likeminded persons (such as Cindy Sheehan and other veterans families) might be interested in taking this issue up?