Expiring Authority

Bruce Ackerman and Oona Hathaway note that the current legal basis for the U.S. military operation in Iraq is the second prong of the 2002 AUMF which grants the president the authority to use the military to "enforce all relevant United Nations Security Council resolutions regarding 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.

But of course Bush (and John McCain!) want a permanent American military presence in Iraq, but they know congress won't authorize such a presence. Hence, the only solution available to them is to ignore the law and the constitution and just keep the troops. Ackerman and Hathaway suggest merely continuing the U.N. resolution for another year, which will give the next president a legal basis for doing whatever he's been granted a mandate to do (since no matter who wins the troops can't be made to suddenly vanish in a puff of smoke in January). But, obviously, for that to happen the administration would need to concede that it lacks the legal and constitutional authority to ignore congress and they'll never do that.

Comments

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.

Has no one told them that this antiquated "Constitution" they talk of does not apply to the Unitarded Executrix, to Fourthbranch, or to any other War Footing the right wing wishes to take? Or have they simply been watching too many "John Adams" miniseries episodes?

Posted by El Cid | April 6, 2008 12:18 PM

Hence, the only solution available to them is to ignore the law and the constitution and just keep the troops.

Quite obviously Congress, at any time, could end this by refusing to appropriate money.

In the event Congress fails to do so, our foreign creditors will be cutting this funding for it anyway.

Future American military ventures, if any, will be on a pay-as-you-go basis.

Posted by MacMac | April 6, 2008 12:24 PM

This seems easily sidestepped to me. There's at least one reading of the language you cited ("enforce all relevant United Nations Security Council resolutions regarding Iraq") where the relevant United Nations Security Council resolutions are just those active at the time the AUMF was passed. There's nothing stopping the Bush administration from arguing - John Yoo-style - that the American military is still enforcing those resolutions, and thus still in compliance with the AUMF. That a UN resolution lapsed in the subsequent years is irrelevant. What matters is that it was active at the time AUMF passed.

Nate

Posted by Nate W. | April 6, 2008 12:41 PM

This looks like a trap. We should remember that the unitary executive theory applies only to Republican presidents. It will be rescinded the minute Obama takes the oath of office. And then Republicans will bitterly accuse Obama of violating the Constitution because there will be no legal authority for the presence of troops in Iraq. That it will be Bush's fault that there is no legal authority will be forgotten. Of course, that assumes that Bush will hand over the presidency, which is certainly not a guarantee.

Posted by fostert | April 6, 2008 1:01 PM

The U.S. has such bilateral agreements for stationing troops in many many other nations. If this argument is correct then all of those, too, are "wars" in violation of the U.S. Constitution.

What this argument really exposes, if anything, is the inappropriateness of continuing to refer to the U.S. military presence in Iraq as "The Iraq War" indefinitely - and thus, assuming that its justification continues to require Congressional war-declaration - just because, seemingly, it involves us having our troops stationed someplace else.

Posted by Sonic Charmer | April 6, 2008 1:01 PM

Instead, it is now negotiating a bilateral agreement with the Iraqi government to replace the U.N. mandate.

Wouldn't this normally be referred to as a "treaty," and require Senate ratification?

Posted by John | April 6, 2008 1:15 PM

This is simple enough that even Matt should be able to follow it. The President, being commander in chief, can deploy troops where he wants, so long as Congress is willing to pay for it. The Congress can use it's Constitutional authority any time it wants to; if the war is as unpopular as the left believes it is, there should be no political penalty for doing so.

I'll leave it as an exercise for Matt to ponder why that hasn't happened yet; perhaps he could even try *gasp* calling his Congressional Representative *gasp" and asking himself.

Posted by James Robertson | April 6, 2008 1:22 PM

is the inappropriateness of continuing to refer to the U.S. military presence in Iraq as "The Iraq War" indefinitely

How many mortar attacks were there against Landstuhl last year? How many car bombs on Boulevard Leopold in Brussels?

Posted by MikeJ | April 6, 2008 1:32 PM

the inappropriateness of continuing to refer to the U.S. military presence in Iraq as "The Iraq War" indefinitely - Sonic Charmer

I am sure any of our troops stationed in Iraq would be happy to respond to your contention that they are not involved in a war. But I think the response would be extremely painful for you, and probably stain your shirt.

Posted by brooksfoe | April 6, 2008 1:45 PM

Potentially, this is a far more serious matter and sadly very few reporting about that. My blog entry is here for more details (http://21stcenturypolitics.blogspot.com/2008/04/missing-point.html)

In summary - the political fight for this has not started and it needs to start. Obama and Hillary both need to do the bull work here. Congress will be in very awkward position to stop the funding. Bush as usual, legal or illegal, will still try to tie down America in Iraq beyond his term. He will surely use ‘legal basis’ in denying Congress to weigh on ‘force agreement’ but will flaunt all other applicable laws with impunity. He does that because he knows Congress is ‘never going to have balls’ to stop funding for ongoing combat operations. With Senate divided, it is easier for him.

Politically, Bush is right – fortunately or unfortunately that is how American Political system works. Commander in Chief / President decides where and how and how long to wage a war and Congress generally complies with that (there are few exceptions, but unlikely to repeat in Iraq case). So the best bet is to make it politically impossible to put extravagant ‘force agreement’. Since Bush is, fortunately, not for reelection; the political cost must be made high to McCain and Republicans who are for reelection.

This is toxic and radio-active topic. It must bubble up.

Posted by Umesh Patil | April 6, 2008 2:18 PM

Matt:

I think you and Ackerman have this wrong. They will no longer need the legal authority of the AUMF once they sign a bilateral SOFA (Status of Forces Agreement) treaty with Iraq. All treaties, even executive treaties like this, have all the force and authority of domestic law in the United States. So the Iraq SOFA will replace and supercede the AUMF.

As Sonic Charmer notes, we have SOFA agreements with all other nations where US troops are stationed, which includes all NATO nations, Japan, Korea, etc.

The major distinction will be that once we make this SOFA agreement, it will basically make it exceedingly difficult and basically end any legal argument that the Administration is using that Iraq is legally a part of the War on Terror and comes under the President's war powers. And that is true whether you believe in the Constitution or this bogus "Unitary Executive" theory.

I don't know what that will mean in practice, but it does have some significance. We can still provide security and fight in Iraq under the SOFA, but they will no longer be able to claim that the President has exceedingly broad war powers once this is in place. Which is why they have probably been reluctant to do it before, because the Bush Administration, like the Clinton campaign, loves to live in the chaos. Within the grey areas, there are no rigid rules and therefore they can constantly change rationales, positions, and don't have to be accountable for anything.

Posted by Bubba | April 6, 2008 2:18 PM

MY - But of course Bush (and John McCain!) want a permanent American military presence in Iraq, but they know congress won't authorize such a presence. Hence, the only solution available to them is to ignore the law and the constitution and just keep the troops

As Robertson notes, MT's ignorance is staggering. We have status of forces agreements with over 100 countries, including many "hot zones" where our troops are, or have been in danger. Congress does not have any say in status of force agreements since they are not bona fide treaties as diplomatic conventions view traditiona military legations and forces abroad - but they have the power to defund...which they are justly scared to do. Because if they automatically yank our troops or bases or advisors out of any country they have the possibility of risk or conflict - we lose important geostrategic outposts or cooperation with allies.

And there isn't crap in the Constitution about Congress having to declare war when we have Spec Ops down in Columbia and Peru fighting Red and narcoterrorists, or have our guys in Greenland and Iceland in military outposts serving as NORAD and naval surveillance stations for 60 years when they were the 1st targets the Soviets would hit until recently. Or status of forces in the Philippines where from time to time even into the 80s, we were shooting commies in the field and those trying to infiltrate Angeles City and Subic bases, and where a few Americans died each year..

Meanwhile, the Commander in Chief will deploy US forces where they serve American interests and security, and Congress if it disagrees, can always disfund and explain their vote to do so. Even cut and run, like the Congressional stabbing of S Vietnam and Cambodia in the back was.

Posted by chris ford | April 6, 2008 2:38 PM

"enforce all relevant UN Security Council Resolutions regarding Iraq" covers a lot of ground.

Resolution 678 authorized force against Iraq to eject it from Kuwait AND "to restore peace and stability to the area". Obviously, the second part of this mandate has yet to be achieved.

Posted by Robert Powell | April 6, 2008 3:44 PM

Ackerman's legal analysis is shoddy in the extreme. In particular, this section is completely wrong:

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.

In fact, the President can start any fight he wants and "hen force Congress to choose between exercising its constitutional powers and supporting the troops" (And, gee, I thought bringing the troops home from a conflict Congress hasn't approved is "supporting the troops", but whatever.) Congress acquiesced to this in passing the War Powers Act, which permits the President to start "any fight he pleased" but then purports to force the President to get Congressional approval within 60 days thereafter to be able to continue to the war. (I'd argue that this provision of the War Powers Act is unconstitutional, which is a common objection by various Presidents to the provision.)

So, Ackerman is a moron for not even understanding the basics of the War Powers Act.

Secondly, there's no reason to think that the passage by COngress of appropriations for the war doesn't constitute authority to continue the war. Indeed, President Clinton's OLC wrote an opinion that it does just that for purposes of the War Powers Act, despite a provision of the War Powers Act that specifically provides that appropriations bills do not constitute such authority.

So Ackerman's statement that "approving funds is not sufficient to authorize military action" has already been deemed to be incorrect by the Clinton Administration, thereby placing the Bush Administration on firm legal ground.

This was about as shoddy a legal op-ed as you can get. About what I'd expect from a left-wing extremist law professor.

Posted by Al | April 6, 2008 4:07 PM

Given some of the brazenly illegal and unconstitutional things this Administration has done, this is actually a pretty trivial legal issue. In fact, as others have noted, the bottomline is that the Constitution gives Congress all the authority it needs to end this war, but they will have to exercise it.

Posted by DTM | April 6, 2008 4:11 PM

Secondly, there's no reason to think that the passage by COngress of appropriations for the war doesn't constitute authority to continue the war. Indeed, President Clinton's OLC wrote an opinion that it does just that for purposes of the War Powers Act, despite a provision of the War Powers Act that specifically provides that appropriations bills do not constitute such authority.

You are a lawyer, obviously. Only a lawyer could follow up the declaration "there's no reason" by citing a reason.

Posted by Jeffrey Davis | April 6, 2008 4:21 PM

The U.S. has such bilateral agreements for stationing troops in many many other nations.

Funny thing is, the two clowns who mentioned SOFAs seem to not even know what a SOFA is or covers. Unless the US will be content with their soldiers sitting in their bases polishing their guns all day long, a SOFA isn't going to cut it - or it will be a very unusual SOFA, in which case bringing up the term in the first lace makes no sense.

An Al is talking out of his hat as usual.

Posted by novakant | April 6, 2008 4:59 PM

Excuse me for bringing up a silly detail, but isn't Iraqi law also valid? If I'm not mistaken, the Iraqi constitution (despite having been largely dictated by the US) requires parliamentary approval of foreign troops being stationed in the country, and parliament has made pretty clear that it will give no such approval.

Posted by Hans B | April 6, 2008 5:19 PM

Sonic Charmer:

The U.S. has such bilateral agreements for stationing troops in many many other nations. If this argument is correct then all of those, too, are "wars" in violation of the U.S. Constitution.

As novakant points out, Sonic Charmer and Bubba are wrong about SOFAs. All they do is govern simple matters about where troops are, whose legal authority they fall under, etc. It is only treaties or other approval by Congress that can create situations where US troops have the authority to use force.

In other words, without Congressional approval, US troops *can* remain in Iraq. They just can't shoot anyone.

Hans B:

If I'm not mistaken, the Iraqi constitution (despite having been largely dictated by the US) requires parliamentary approval of foreign troops being stationed in the country, and parliament has made pretty clear that it will give no such approval.

You're not mistaken. US troops must have approval from the Iraqi parliament (in addition to the US congress) to remain there, unless they're just going to sit around whittling all day long.

However, it's worth remembering that the Iraqi parliament ALREADY passed a law restating their constitutional right to approve any extension of the UN mandate at the end of 2007, and the Bush administration told them: fuck you. (Some details here.) So there's no reason to think the Bush administration or its puppet Maliki will pay any attention to the law this time either. I understand it's all part of Bush's "fantastic freedom agenda."

Robert Powell:

Resolution 678 authorized force against Iraq to eject it from Kuwait AND "to restore peace and stability to the area". Obviously, the second part of this mandate has yet to be achieved.

Sweet! By this brilliant legal reasoning, Russia now has approval to nuke the country that invaded Iraq. You know, to "restore peace and stability to the area."

Many people ask: is Robert Powell the biggest fucking moron who's ever lived? The answer turns out to be yes.

Posted by 23456 | April 6, 2008 5:39 PM

The bottom line that neither Matt nor most of the commenters here want to face is very simple: The President can leave the troops there as long as he wants to, so long as Congress agrees to keep paying for it. It's that simple.

As I said above (and as all commenters since have ignored): If the war is as unpopular as the left believes it is, then cutting off funding should entail minimal political risk. Why then has a Democratic controlled Congress not done that?

Could it be that the left doesn't understand the political ground as well as it thinks it does?

Posted by James Robertson | April 6, 2008 5:53 PM

MikeJ (and others) make this point:

How many mortar attacks were there against Landstuhl last year?

I don't know, zero I imagine. If there had been 1 (one), from, say, a terrorist, would it have become a "war" requiring Congressional war-powers approval to keep U.S. soldiers stationed there? Okay, what about 2? Still seems doubtful.

Looks like the answer is N then, for some large N. What is N? Do tell. I mean, there must be some value of #mortar attacks=N that automatically makes it unconstitutional to keep soldiers stationed somewhere w/o Congressional war powers.

Or maybe your argument doesn't work because that by itself is not the sort of criterion by which something becomes a "war" per se.

Posted by Sonic Charmer | April 6, 2008 6:52 PM

23456 writes

All they do is govern simple matters about where troops are, whose legal authority they fall under, etc. It is only treaties or other approval by Congress that can create situations where US troops have the authority to use force... In other words, without Congressional approval, US troops *can* remain in Iraq. They just can't shoot anyone.

Well, the fact that they can be there under a bilateral agreement alone debunks the article. As for whether they 'have the authority to use force' or 'can shoot anyone' while there, I think you overstate just a bit; I assume that U.S. soldiers have the authority to use force if/when they are attacked, and to shoot people in the process of attempting to kill them (correct me if I'm wrong of course). Beyond that I have not said anything either way about what I would envision U.S. troops doing in Iraq under such an agreement. But that's not what the article was about. It was about whether they could be there at all, not whether they could be there and do XYZ for this X, that Y, and the other Z.

The article and Matt's post imply the answer is no; I'm saying they're wrong, and you've just agreed with me.

Posted by Sonic Charmer | April 6, 2008 7:05 PM

Funny thing is, the two clowns who mentioned SOFAs seem to not even know what a SOFA is or covers. Unless the US will be content with their soldiers sitting in their bases polishing their guns all day long, a SOFA isn't going to cut it - or it will be a very unusual SOFA, in which case bringing up the term in the first lace makes no sense. An Al is talking out of his hat as usual. Posted by novakant | April 6, 2008 4:59 PM

Actually, I know exactly what a SOFA is and I know how they are negotiated and enforced and I think you should know that not all SOFA's are the same. In fact almost all SOFA's are different because they are bilaterial treaties and therefore each state has different domestic legal and political systems. For example, the SOFA in Japan allows the military to hold servicemembers accused of crimes until they are indicted by a Japanese court. This is a remedy not available in many other SOFA's and is directly related to a few high profile rape cases in Okinawa and some murders. Because Iraq does not have a proper legal system, there will not be a provision to allow any US service personnel, no matter how severe the crime, to be tried in Iraqi courts. And if reports I have read are believed, there will be massive blanket immunity from Iraqi jurisdiction for contractors as well.

You also answer your own question, saying "it will be an unusual SOFA". Everything that this Administration does in relation to the rule of law in unusual. And negotiating a SOFA in the middle what is essentially a warzone is generally not typical, but I believe something similar is done when we send in troops under a UN mandate. I believe we negotiate a separate agreement with UN PKO because of the ICC thing and the refusal to put US forces under foreign command, etc.

Since you are so quick to condemn others knowledge of a subject, please go ahead and show me your expert knowledge on the subject. But maybe you should first read this NYTimes article from January 25th. The key phrase:

In seeking authority to conduct combat operations, the Bush administration is seeking something similar to the current United Nations Security Council resolution, which allows the United States and other coalition forces to operate in Iraq “in support of mutual goals,” one Bush administration official said.

The official said the agreement sought by the United States could allow Iraq to “rescind that authority at a later date as the security environment improves and they take over the mission.”
Which 100% supports everything I have already posted about the US using the SOFA to replace the AUMF and the SC resolution.

The big question will be under what authority will the President use to continue aggressive military operations. The administration will claim that they won't need it and unless Congress does revoke funding they are right out of might, because the courts will not intervene on that question. Furthermore, the Executive will be operating under the color of a perfectly legal Executive Agreement with a foreign country that commits the US to support the security mission of that country. It will not be "war" after that and therefore a colorable argument can be made that Congressional approval is not necessary or as Ackerman discusses, the only way for Congressional intervention would be block appropriations or attach riders to appropriations and then override a veto. Congressional authority to stop a war in progress is limited and the SOFA will provide a legal foundation for the war to continue. Even it is called "security" or "peace keeping" or whatever.

Posted by Bubba | April 6, 2008 7:09 PM

Bush has asserted the right to spend whatever money he wants on Iraq. I don't know if he's either retreated from or abandoned that position. I know that he unilaterally diverted money intended for Afghanistan to Iraq.

No move for impeachment from the crooks/lice/cowards in Congress.

So it goes.

Posted by Jeffrey Davis | April 6, 2008 8:19 PM

Sonic Charmer:

Well, the fact that they can be there under a bilateral agreement alone debunks the article...I have not said anything either way about what I would envision U.S. troops doing in Iraq under such an agreement. But that's not what the article was about. It was about whether they could be there at all

Incorrect. From the article:

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.

Bubba:

I know exactly what a SOFA is and I know how they are negotiated and enforced and I think you should know that not all SOFA's are the same.

They have differences, but in fact there is one way in which they are all the same: they don't provide US troops with authorization to use force. All the authorizations to use force are granted in treaties or similar, congressionally-approved agreements. It's true the Bush administration wants to use the SOFA to replace the UN mandate. But that would be completely unprecedented.

Congress has been holding lengthy oversight hearings on this:

The most dramatic testimony came from Elsea, CRS’s ranking expert on authorization for the use of force, and Mason, CRS’s authority on Status of Forces Agreements, which are agreements the executive branch typically makes with foreign governments without congressional approval. Secretary of State Rice and Secretary of Defense Gates argued in a recent Washington Post op-ed that matters covered under a Status of Forces Agreement can range “from the overall scope of their mission to the minutiae of daily life – from authority to fight to rules for delivering mail.” Mason reviewed the details of more than 70 Status of Forces Agreements, and concluded that “none contain the authority to fight.”

Posted by 23456 | April 6, 2008 8:24 PM

Thank you, 23456, for ripping our resident right wing trolls yet another new asshole.

Beyond that, however, we have the problem that Bush and Cheney intend to start a war with Iran before the end of this year - thus tying the hands of the incoming administration considerably more forcefully than merely making an agreement with Iraq to continue stationing troops there.

What they don't realize is that as soon as the bombs start dropping on Iran, US military presence in Iraq will be over within about ninety days, as the Shia militias cut US supply lines, and leaves the US forces with no food, water, ammo, or fuel to prosecute any sort of military action in Iraq, Iran or anywhere else.

The question then will be whether US troops can get out of Iraq in one piece or will have to summarily surrender and be "escorted out" - or decimated by a couple divisions of Iranian regulars. All Iran has to do is sit back, wait for the Iraqis to eliminate the US supply lines (as the Taliban in Pakistan are working to do for the troops in Afghanistan), then wait for some bad weather to foil US air power, and then cross the border and roll up the US troops scattered all over Iraq.

See William Lind's clear and forceful argument that this COULD happen here:

Operation Cassandra
http://antiwar.com/lind/

Money Quotes:

"Let me state it here, again, as plainly as I can: an American attack on Iran could cost us the whole army we now have in Iraq.

Lots of people in Washington are pondering possible consequences of an air and missile assault on Iran, but few if any have thought about this one. The American military's endless "we're the greatest" propaganda has convinced most people that the U.S. armed forces cannot be beaten in the field. They are the last in a long line of armies that could not be beaten, until they were.

Here's roughly how it might play out. In response to American air and missile strikes on military targets inside Iran, Iran moves to cut the supply lines coming up from the south through the Persian Gulf (can anyone in the Pentagon guess why it's called that?) and Kuwait on which most U.S. Army units in Iraq depend (the Marines get most of their stuff through Jordan). It does so by hitting shipping in the Gulf, mining key choke points, and destroying the port facilities we depend on, mostly through sabotage. It also hits oil production and export facilities in the Gulf region, as a decoy: we focus most of our response on protecting the oil, not guarding our Army's supply lines.

Simultaneously, Iran activates the Shi'ite militias to cut the roads that lead from Kuwait to Baghdad. Both the Mahdi Army and the Badr Brigades – the latter now supposedly our allies – enter the war against us with their full strength. Ayatollah Sistani, an Iranian, calls on all Iraqi Shi'ites to fight the Americans wherever they find them. Instead of fighting the 20 percent of Iraq's population that is Sunni, we find ourselves battling the 60 percent that is Shi'ite. Worse, the Shi'ites' logistics lie directly across those logistics lines coming up from Kuwait.

U.S. Army forces in Iraq begin to run out of supplies, especially POL (petroleum, oil, lubricants), of which they consume a vast amount. Once they are largely immobilized by lack of fuel, and the region gets some bad weather that keeps our aircraft grounded or at least blind, Iran sends two to four regular army armor and mech divisions across the border. Their objective is to pocket American forces in and around Baghdad.

The U.S. military in Iraq is all spread out in penny packets fighting insurgents. We have no field army there anymore. We cannot reconcentrate because we're out of gas and Shi'ite guerrillas control the roads. What units don't get overrun by Iranian armor or Shi'ite militia end up in the Baghdad Kessel. Gen. Petraeus calls President Bush and repeats the famous words of Ducrot at Sedan: Nous sommes dans un pot de chambre, et nous y serons emmerdés. Bush thinks he's overheard Petraeus ordering dinner – as, for Bush, he has.

U.S. Marines in Iraq, who are mostly in Anbar province, are the only force we have left. Their lines of supply and retreat through Jordan are intact. The local Sunnis want to join them in fighting the hated Persians. What do they do at that point? Good question.

How probable is all this? I can't answer that. Unfortunately, the people in Washington who should be able to answer it are not asking it. They need to start doing so, now."

Posted by Richard Steven Hack | April 6, 2008 9:09 PM

Hack misses a lot. First, air power isn't halted by weather the way it was during WWII; second, naval power would drop anything the Iranians tried in the gulf. Third, a rain of missiles on Iranian formations as soon as they crossed the border (from naval/air power in the gulf) would make a hash of the divisions they sent across - I'll refer him to Gulf War I's "Highway of Death".

Finally, even the Shia of Iraq would likely rally against an Iranian incursion; Hack conveniently forgets the entire 1980-1988 war between the two, which was incredibly bloody and bitter.

But hey, other than those small flaws, sure - his scenario could play out. Then again, aliens could attack from space, too. I think I'd worry about that far more than I'd worry about an Iranian attack.

Posted by James Robertson | April 6, 2008 11:14 PM

Thank you, 23456, for ripping our resident right wing trolls yet another new asshole.

Well, I wouldn't call Sonic Charmer a troll. However, he is very badly informed.

Bubba isn't a troll.

Robert Powell is a troll in the same sense that LeBron James is a basketball player. He's truly one of the most excruciatingly stupid people I've ever encountered in any avenue of life.

Posted by 23456 | April 6, 2008 11:38 PM

This is simple enough that even Matt should be able to follow it. The President, being commander in chief, can deploy troops where he wants, so long as Congress is willing to pay for it.

As a practical matter; as a matter of Constitutionality, it is blatantly illegal (unless you believe all of the Andrew McCarthy crap about the power to declare war being a formality).

The Congress can use it's Constitutional authority any time it wants to; if the war is as unpopular as the left believes it is, there should be no political penalty for doing so.

The war is unpopular but they still don't want to be seen a few years from now as "losing the war for us" by idiots with short memories.

Congress acquiesced to this in passing the War Powers Act, which permits the President to start "any fight he pleased" but then purports to force the President to get Congressional approval within 60 days thereafter to be able to continue to the war. (I'd argue that this provision of the War Powers Act is unconstitutional, which is a common objection by various Presidents to the provision.)

How can that provision be unconstitutional but the part of the act about authorizing deployment without a declaration of war be constitutional? You don't understand (or rather do not care about) the Constitution, Al.

So Ackerman's statement that "approving funds is not sufficient to authorize military action" has already been deemed to be incorrect by the Clinton Administration, thereby placing the Bush Administration on firm legal ground.

Clinton was a big a Constitution-hating as Bush. The fact that Al is citing one Liar-in-Chief to justify another just shows what a dishonest snake he is.

Posted by Glaivester | April 6, 2008 11:44 PM

The Commander in Chief can do whatever the hell he wants as CoS. Congress has two ways to stop this: impeachment and cutting off funds. There really is nothing else to say on this topic. "Authorization" is a fiction.

Posted by Markus | April 7, 2008 12:37 AM

I find this argument amusing. Unserious, but amusing, like most everything from the unserious-but-amusing Ackerman. I'm not sure why I'm wasting time on it, except that ya'll are.

Ackerman says that the AUMF authorized the use of force "only under two conditions." But that's a peculiar mis-reading of the AUMF. The "conditions" are instead the purposes of the use of force, not the conditions for it.

The "condition" for the war is a presidential determination, and that determination references the aims of the war.

Ackerman's take on what he describes as the first condition is just as unpersuasive. Ackerman characterizes the first "condition" like this: "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." But the words "by Iraq" aren't equivalent to "by the Iraqi government." Surely if Congress meant only the risk posed by the regime of Saddam Hussein, they would have said that.

This is really really bad stuff.

Posted by Thomas | April 7, 2008 12:57 AM

"This is really bad stuff."

You said it, brother. But compared to some of the comments here, it's positively profound.

Anyone who thinks UNSC Resolution 678 authorizes Russia to nuke the US is so deeply disturbed as to warrant his own special diagnosis. It's consistent with confusing random Iraqi "resolutions" with the official position of the elected government. We've had "resolutions" on flag-burning and gay marriage in our Congress, but I don't think they constitute policy.

Typically, people here who were still in diapers when the war in Iraq started, and who don't have a clue about anything that happened there between 1991 and 2003, run around wetting their pants with frustration because most American voters and practically all of the US government are "trolls" who can't see that we are just like Nazi Germany, are about five minutes away from launching a war in Iran, etc. Good luck on election day, as usual.

Posted by LeBron James | April 7, 2008 2:05 AM

They have differences, but in fact there is one way in which they are all the same: they don't provide US troops with authorization to use force. All the authorizations to use force are granted in treaties or similar, congressionally-approved agreements. It's true the Bush administration wants to use the SOFA to replace the UN mandate. But that would be completely unprecedented. - 23456

Thanks for not calling me a troll. I have been to law school and worked at foreign missions and currently work for a US development agency, so international law is not foreign to me. And yeah, providing authority to fight under a SOFA is crazy, but that is what these folks want to do. It will be interesting to see what happens, but I expect that if they don't bring this under the SOFA, then DoD will try to sign a cooperation agreement or MOU or something with Iraq to provide for US "technical assistance" in assisting security in Iraq or I don't know, there could be some hundreds of crazy things they could try.

Perhaps the most likely thing they will do is just continue the fight without any legal authority, except a broad Constitional claim under the President's Commander-in-Chief powers or alternatively, they could rely on the War Powers Act to authorize the use of force for troops already under attack with the proviso that the Executive will come back to Congress at some point in the future to get authority to continue. Or if Bush's lawyers are to be believed, that authority is inherent in the appropriation of money for the fight.

So basically, we are back at square one. This administration does not care about the rule of law or the enforcement of international law. So what can be done? The courts are reluctant to touch this and Congress is always reluctant to exercise their full authority. So no matter what, the war continues unless the President says it should stop or unless Congress acts.

Posted by Bubba | April 7, 2008 2:28 AM

Robert "The LeBron James Of Stupidity" Powell:

Anyone who thinks UNSC Resolution 678 authorizes Russia to nuke the US is so deeply disturbed as to warrant his own special diagnosis.

Well, the great thing about you saying this is that that was precisely my point. Thanks!

In your zeal to save me work, I assume that next you'll start describing yourself as a "fucking moron."

It's consistent with confusing random Iraqi "resolutions" with the official position of the elected government.

Robert, you long ago made it clear that you despise the most legitimate and representative government in the Arab world. Okay, okay, we get it! I suppose you can keep repeating it if you want, but don't you have some new material? Maybe you can start talking about how deeply you hate democracy in Japan.

Posted by 23456 | April 7, 2008 2:39 AM

Bubba:

So basically, we are back at square one. This administration does not care about the rule of law or the enforcement of international law. So what can be done? The courts are reluctant to touch this and Congress is always reluctant to exercise their full authority. So no matter what, the war continues unless the President says it should stop or unless Congress acts.

I pretty much agree. However, the point of a SOFA from the administration's perspective is not to keep the war going from the end of 2008 (when the current UN mandate expires) to the inauguration of the next president. Rather, there are two main things they want to accomplish with it: first, to try to create momentum that will tie the hands of the next president; and second, to create some legal cover for contractors operating in Iraq (since they'll likely be bare naked legally starting on January 1, 2009).

The administration had hoped to get this written and signed without any attention. And certainly they would have done so had Republicans still controlled congress. But the Democrats have actually been doing an okay job at oversight for once, and the mere light of day means the administration has had to walk things back quite a distance from where they started with the "Declaration of Principles" last November.

Posted by 23456 | April 7, 2008 2:53 AM

It's been clear for some time that only a change of policy at the White House will allow the radical re-structuring of our presence in Iraq, in no small measure because the leaders of Congress without regard to party have been instrumental in the current "structure", and they're no less prepared than ever to let the President take the heat. Whether or not any of the three possible next presidents will opt for a really fundamental change is open to debate. I doubt it.

While it's obvious that UNSCR 678 didn't contemplate Russian missile attacks, it clearly did stipulate the authorization for the use of force "to return the area to peace and stability". Wars don't have sunset clauses, and while it seems far-fetched to assume that such authority would just magically melt away on its own, it's positively bizarre to think it would do so under conditions of a comprehensively violated ceasefire agreement and on-going military operations, including an embargo (itself and act of war) that killed hundreds of thousands of innocent Iraqis.

The war started in 1991 with full legal bells and whistles. The 2003 invasion was seen as the only practical way left to bring it to a reasonable conclusion by a big majority in Congress, among the voters, and by the legitimate governments of most of the world's important democracies (including Japan). The War, as such, ended with the fall of Baghdad and the capture of Saddam Hussein. What continues is the attempt by the US, at the request of the freely-elected and legitimate Iraqi government, to "return the area to peace and stability."

I don't think, nor do I believe any likely president is going to think, that we can do this by remote control, satellites, and cruise missiles.

Posted by Robert Powell | April 7, 2008 3:53 AM

Interpreting invading Iraq as a way to bring peace and stability to "the area" is a rather broad reading of "peace," "stability" and "the area." Our invasion made things less peaceful and stable. The area that was invaded was Kuwait. Iraq was relatively peaceful post-1992 - the Kurdish areas were under the no-fly zone's protection and while the massacre of many Shi'ites after the war was horrible and should have been prevented, once it was done Iraq was relatively peaceful domestically, if despotic (most of the deaths can be lain at the feet of the shoddily-constructed sanctions regime). It's just intellectually dishonest to think that we're finishing the work we started in 1991 today, especially when you consider that our bigger problems are sitting around western Pakistan and Afghanistan right now.

"I'll leave it as an exercise for Matt to ponder why that hasn't happened yet; perhaps he could even try *gasp* calling his Congressional Representative *gasp" and asking himself.

Posted by James Robertson | April 6, 2008 1:22 PM"

He lives in DC. He doesn't have an actual representative. He has the queen of the verbal smackdown, Eleano Holmes Norton, but she can't vote.

Posted by Reality Man | April 7, 2008 4:47 AM

23456: when Ackerman speaks of "the war" I assumed he, like most people here, equates "the war" with "the presence of U.S. troops in Iraq". If he does not, and his article's point is indeed the weaker one that "the war" (whatever that would mean) will become illegal while U.S. forces can perfectly well remain in Iraq, then clearly that's a misreading on my part.

Of course in that case you, I, and he (as opposed to simply you and I) would all agree, that Ackerman's article did not actually present any reasons to think that merely "keep[ing] the troops" or "permanent American military presence" in Iraq, as such, under a bilateral agreement would be illegal or unconstitutional, or that the troops would have to "vanish" from Iraq to satisfy the law or the constitution absent Congressional war-powers approval or another UN resolution.

Now then: shall you tell Matthew Yglesias, or shall I? Because (unless I've misread again) Matthew, in the course of issuing all those quotes, seems to demonstrate that he has misread Ackerman's article in the same way (you suggest) I did. Best,

Posted by Sonic Charmer | April 7, 2008 7:30 AM

Robertson: "Hack misses a lot."

You miss considerably more.

"First, air power isn't halted by weather the way it was during WWII;"

Nobody said it was. What was said is that bad weather still hampers effective air strikes. And it does.

"second, naval power would drop anything the Iranians tried in the gulf."

Who said the Iranians would try anything in the Gulf vis-a-vis the Iraq situation? What the Iranians will do in the Gulf is sink one or more US battleships. That is an almost foregone conclusion as they have the ship-to-ship missiles and sufficient small boats to perform effective "swarm" tactics for which the US Navy is not prepared.

"Third, a rain of missiles on Iranian formations as soon as they crossed the border (from naval/air power in the gulf) would make a hash of the divisions they sent across - I'll refer him to Gulf War I's "Highway of Death"."

Which was not done with a "rain of missiles" - it was done with air power - which as I said can be hampered by bad weather.

William Lind is not ignorant of current military capability. If he thinks this is militarily feasible - if unlikely - I take him at his word.

Yours, not so much.

Finally, even the S"hia of Iraq would likely rally against an Iranian incursion; Hack conveniently forgets the entire 1980-1988 war between the two, which was incredibly bloody and bitter."

And you forget that the Shia in Iraq today just welcomed the President of Iran with open arms, and they happen to dislike the US nearly as much as the Sunni do. Or perhaps you didn't catch Sadr's clear statement that if the US attacked Iran, Sadr's militia would directly support Iran - and this from a guy who technically is a nationalist and not that enamored of Iran. The Badr Brigade is totally dependent on Iran for its creation and training and arming and will undoubtedly support Iran as well.

"But hey, other than those small flaws, sure - his scenario could play out. Then again, aliens could attack from space, too. I think I'd worry about that far more than I'd worry about an Iranian attack."

Well, since Bush and Cheney intend to start a war with Iran this year, better start looking for those huge flying saucers.

Moron.

Posted by Richard Steven Hack | April 7, 2008 8:37 AM

It's practically impossible to deny that the 2003 invasion was aimed at "finishing the work we started in 1991". Many of the principals who were involved in both operations frankly said so at the time, and the Iraq Liberation Act of 1998, while not advocating an immediate invasion, certainly had a lot to say about the ongoing nature of the problem as it was seen by decision-makers then.

What's "intellectually dishonest" is projecting backwards onto the decision-making process of that time all the things we've subsequently discovered (including some of which we should have already known); screwed up beyond all recognition (like disbanding the entire Iraqi state when we should have been establishing contacts and plans with potential transitional Iraqi leaders); and systematically pursuing the wrong tasks militarily while ignoring the right ones for years.

The "shoddily-constructed sanctions regime" wasn't going to be fixed (remember Colin Powell's "smart sanctions"?); the ceasefire and other Chapter VII Resolutions weren't going to be complied with; and there was every reason to expect that Iraq would continue down the same road it had been on for decades under the Ba'athist tyranny. This, not 2008's, was the reality that existed when the decisions were being made. It was hardly "peace and stability".

None of this tells us exactly what we should do next, which is a much more important subject. But I am convinced we will not get good results if the process we use is based on a cartoon version of the history that got us here featuring "usual suspect" stereotypes and divisive rhetoric.

Posted by Robert Powell | April 7, 2008 9:39 AM

Sonic Charmer:

When Ackerman speaks of "the war" I assumed he, like most people here, equates "the war" with "the presence of U.S. troops in Iraq". If he does not, and his article's point is indeed the weaker one that "the war" (whatever that would mean) will become illegal while U.S. forces can perfectly well remain in Iraq, then clearly that's a misreading on my part.

Actually, most people here -- whether you define "here" as this site, this country, or this planet -- equate "the war" with people killing and dying. I think that usage of the term is pretty well established.

Also, what Ackerman is saying is not a weaker point than what you believed him to say. True, he didn't address the possibility that we'll keep troops in Iraq for decades so that they can sit around reading old issues of People. But then he also didn't address what would happen if a race of super-intelligent rabbits arrives from space and starts running Planet Earth. Usually in 800 word op-eds you don't have space to deal with every preposterous hypothetical the human mind can imagine.

Now then: shall you tell Matthew Yglesias, or shall I? Because (unless I've misread again) Matthew, in the course of issuing all those quotes, seems to demonstrate that he has misread Ackerman's article in the same way (you suggest) I did.

I see no sign Yglesias misread Ackerman's article, but if you want to tell him that, then knock yourself out.

Robert Powell:

it's obvious that UNSCR 678 didn't contemplate Russian missile attacks

Of course it does. It's right there in the language: "The Security Council...Authorizes Member States...to use all necessary means...to return the area to peace and stability."

Therefore, according to the well-established "Robert Powell Vicious Idiot Standard Of International Law," any member state of the UN can use any amount of force against anyone if, in the judgement of their government and their government alone, this will return the area (whatever that means) to peace and stability. Bombs away!

Posted by 23456 | April 7, 2008 1:19 PM

Thanks for clearing that up, 23456. You really add a lot of intellectual heft to the discussion.

Who needs history? Who needs facts? Who needs a foreign policy at all? Let's just pretend a tiny minority of anti-American narcissists knows what's best and do whatever they say!

Just think of all the money we'll save--with no foreign policy we can get rid of the UN, the Air Force and the Army, and just keep the Navy and the National Guard, put Pat Buchanan in the drivers seat, and hunker down in Fortress America.

Posted by Robert Powell | April 7, 2008 2:28 PM

Thanks for clearing that up, 23456.

You're welcome! I figured that someone like yourself who's suffered such severe brain damage might need help understanding that. Next we can move onto more difficult subjects, such as what two plus two equals.

Who needs history? Who needs facts?

Ah, Robert, this is good new territory for you. You've established how much you despise the historical fact that the most legitimate and representative government in the Arab world passed a law restating their constitutional right to approve any further extension of the UN mandate. You've done a great job pretending these facts and history don't exist. Now you can move onto your real enemy: history and facts generally.

There's a lot of history and facts out there for you to despise and ignore, but I have the feeling you're up to it.

Posted by 23456 | April 7, 2008 2:50 PM

Au contraire, mon frere! I'm perfectly delighted with the Iraqi Parliament's assertion of its right to pass Resolutions. And I'll be okay with an official Iraqi decision to dispense with US support, too.
Send me an e-mail when that occurs. Probably right after the widely-predicted-in-nutbag-circles American invasion of Iran.

Let's hold our breath!

Posted by Robert Powell | April 7, 2008 3:17 PM

Robert, I should also add this: please, please continue talking about your deep concern for history and facts, while at the same time living your bizarre Through-the-Looking-Glass existence. "The elected Iraqi parliament passing laws restating their constitutional rights has no meaning! In 1990 the UN gave the US approval to occupy Iraq indefinitely starting in 2009! Oh no, I'm falling off the wall!"

I've directed quite a few people to our exchanges, and the enjoyment we've all gotten from mocking you has been enormous. We're not ready to give that up yet!

Posted by 23456 | April 7, 2008 3:33 PM

By all means carry on--after all, getting enjoyment from mocking people who present arguments unfamiliar to those reading from the echo chamber script is a sure marker for political futility. Folks like you are dear to the heart of all the Karl Roves out there.

Posted by Robert Powell | April 8, 2008 2:47 AM

getting enjoyment from mocking people who present arguments unfamiliar to those reading from the echo chamber script is a sure marker for political futility

Yes...if history has taught us anything, it's that mocking pompous morons has no effect whatsoever. If only Robert Powell had been there to tell Voltaire before he'd wasted his life!

In any case, Robert, you just keep on fighting The Man. Or as we non-Robert Powell humans call it, "reality."

Posted by 23456 | April 8, 2008 4:56 PM

23456 as Voltaire? Now THAT'S hilarious!

Talk about pompous morons........

Posted by Robert Powell | April 8, 2008 5:54 PM

Robert, one of the things that makes you such a delightfully pompous moron is your hilarious predictability. Perhaps if you were capable of thought processes more complex than those of a bull maddened by a red cape, you would have realized that I hoped you would respond in exactly that way.

After all, you've just granted that Voltaire accomplished something by what you asserted was counterproductive; ie, mocking pompous morons. Now all that's left is to determine our relative stature.

How about we agree on this: I'm not Voltaire, but then neither are you an 18th century Pope. Nevertheless, there is one area in which you are the equal of the worst of them: your vicious idiocy. Meanwhile, I like to think I'm Voltaire's equal in the deep enjoyment we both got from mocking people like you. As Voltaire said:

"I have never made but one prayer to God, a very short one: 'O Lord, make my enemies ridiculous.' And God granted it."

Mine too!

* * *

Now: before you respond next, see if you can figure out if there's anything in particular I'm hoping you'll say.

Posted by 23456 | April 8, 2008 9:02 PM