06 Apr Playing Up the Fine Print: Ackerman and Hathaway on the War’s “Expiration Date”
Bruce Ackerman and Oona Hathaway had this op-ed in Saturday’s WaPo arguing that congressional authorization for the Iraq deployment will expire with official the UN mandate for the multinational force come January 1, 2009. The piece works from the limitation in Congress’ 2002 joint resolution approving the use of force only 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.” The first hardly works any more, note Ackerman and Hathaway, and the second won’t as of next winter.
It’s a nice catch, and the argument would hit home if we were dealing with anything other than the use of force. But what if the new year comes around with neither a new UNSC resolution or modification of congressional authorization? The answer: nothing! As with the War Powers Resolution (which purported in these terms to include a default “expiration date” on all presidential uses of force), you’re not going to win a war’s end on legalisms. The only thing that will do the trick is an affirmative qualification or withdrawal of congressional authorization going forward, something that proved impossible to secure even when the war still dominated the front page.
The JAGs pay attention to the legalisms, but they will be satisfied by the upcoming agreement with Iraq as keeping the U.S. forces in a definable status under international law. The domestic issue is too political for the military to get involved (no one wants a precedent of the military threatening to disobey the civilian commander-in-chief over a debatable War Powers dispute).
You are right that this subject has no traction with the domestic press, public, or politicians. Congressional failure to act will have no effect, and Congress will have further weakened itself. ‘You cannot expect us to stand on principle–this is an election year!’ Just like 2002.
Isn’t that an interesting outcome of this administration? It is arguable whether it has made the Executive stronger, but by pressing these hard cases it has assisted the weakening of the Congress, and the Judiciary, and treaties, and journalists, et cetera.
I gave this as a problem for a class.
One possibility that may be argued in the absence of an agreement with Iraq and an extension of the mandate by the UN Security Council will be prolonged (as opposed to anticipatory) Article 51 self-defense as Al-Qaeda is in Iraq.
A second I would think might be looked into would be the practice in the “orderly windup” of occupations, provided we do start the orderly windup and do not use this rule as a pretext to stay on indefinitely.
Can there be an argument that we already have the tacit approval to stay on with the Declaration of Principles between Iraq and the US already being the Sole Executive Agreement that is not finalized but is the framework for the finalization in good faith of a bilateral agreement. We might stay in this strange state forever with the acquiescence of the two states.
Best,
Ben
The second option appears unavailable because the U.S. formally transferred sovereignty back to Iraq, though one may argue over de facto versus de jure occupation. The U.S. denied GC protections for captured Taliban forces despite their being the de facto government forces of Afghanistan, so it may be difficult for the U.S. to now claim legitimacy from a de facto occupation status. I could see the first option working, but only with an unclassified Presidential Finding or other public, formal determination by the CINC in order to satisfy the military. (The intel guys in Italy were a striking example of getting left in a lurch with inadequate diplomatic protection.) As for limitations, such a Presidential Finding would take a lot of chutzpah and would be ridiculed by many (none of which means it won’t be done). I do not foresee the third approach–it would be an utter abandonment of the troops. If on December 31, 2008, there was no formal authority of U.S. troops to use force in Iraq, then active duty generals may begin resigning or pulling troops back to the large bases (though the then-President-elect’s announced plans would be an influential factor). Instead, why not simply let the… Read more »
The Guardian has an article on this today at http://www.guardian.co.uk/world/2008/apr/08/iraq.usa Secret US plan for military future in Iraq Document outlines powers but sets no time limit on troop presence Seumas Milne The Guardian, Tuesday April 8 2008 Tuesday April 08 2008 on p1 of the Top stories section. It was last updated at 02:07 on April 08 2008. US troops conduct a foot patrol along the Tigris river south of Baghdad, Iraq. Photograph: David Furst/AFP/Getty images A confidential draft agreement covering the future of US forces in Iraq, passed to the Guardian, shows that provision is being made for an open-ended military presence in the country. The draft strategic framework agreement between the US and Iraqi governments, dated March 7 and marked “secret” and “sensitive”, is intended to replace the existing UN mandate and authorises the US to “conduct military operations in Iraq and to detain individuals when necessary for imperative reasons of security” without time limit. The authorisation is described as “temporary” and the agreement says the US “does not desire permanent bases or a permanent military presence in Iraq”. But the absence of a time limit or restrictions on the US and other coalition forces – including the… Read more »