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Does Congress's Authorization to Use Force In Iraq Expire?

Does Congress's Authorization to Use Force In Iraq Expire?

Apr-5-08 01:50 pm

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Yale Professors Bruce Ackerman and Oona Hathaway have a provocative piece in today's Washington Post. They argue that unless the United Nations Security Council adopts another resolution relating to Iraq or Congress adopts another resolution authorizing the use of force in Iraq, the original congressional authorization from 2002 will expire on the last day of 2008. They explain:

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, they continue:

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.

Very interesting. But, as Ackerman and Hathaway note, the Administration has a reponse ready:

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.

I wish I could agree with Ackerman and Hathaway. But I can't.

Look at the language of the relevant provisions of the 2002 resolution. It reads:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

(emphasis added)

It seem clear to me that under this resolution the president continues to have the discretion to determine that force is still "necessary and appropriate" to respond to the "continuing threat." It may true that the continuing threat is one of our making, but that seems irrelevant for purposes of this authorization.

SImply put, Congress in its infinite wisdom adopted a resolution that was so broad that it continues to provide authorization to US military operations in Iraq. Remind you of anything?

Tags: use of force Congress

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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» Learn more about the M.A. in International Law and Government at Georgetown University.

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SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

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