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 July date slip ‘due to ongoing negotiations,’ then finalize the executive agreement in late November, having minimized the use of its details (long term bases) as a campaign issue?
Regards,
D. Gunboat
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 British – in the country means it is likely to be strongly opposed in Iraq and the US.
Iraqi critics point out that the agreement contains no limits on numbers of US forces, the weapons they are able to deploy, their legal status or powers over Iraqi citizens, going far beyond long-term US security agreements with other countries. The agreement is intended to govern the status of the US military and other members of the multinational force.
Following recent clashes between Iraqi troops and Moqtada al-Sadr’s Mahdi army in Basra, and threats by the Iraqi government to ban his supporters from regional elections in the autumn, anti-occupation Sadrists and Sunni parties are expected to mount strong opposition in parliament to the agreement, which the US wants to see finalised by the end of July. The UN mandate expires at the end of the year.
One well-placed Iraqi Sunni political source said yesterday: “The feeling in Baghdad is that this agreement is going to be rejected in its current form, particularly after the events of the last couple of weeks. The government is more or less happy with it as it is, but parliament is a different matter.”
It is also likely to prove controversial in Washington, where it has been criticised by Democratic presidential candidate Hillary Clinton, who has accused the administration of seeking to tie the hands of the next president by committing to Iraq’s protection by US forces.
The defence secretary, Robert Gates, argued in February that the planned agreement would be similar to dozens of “status of forces” pacts the US has around the world and would not commit it to defend Iraq. But Democratic Congress members, including Senator Edward Kennedy, a senior member of the armed services committee, have said it goes well beyond other such agreements and amounts to a treaty, which has to be ratified by the Senate under the constitution.
Administration officials have conceded that if the agreement were to include security guarantees to Iraq, it would have to go before Congress. But the leaked draft only states that it is “in the mutual interest of the United States and Iraq that Iraq maintain its sovereignty, territorial integrity and political independence and that external threats to Iraq be deterred. Accordingly, the US and Iraq are to consult immediately whenever the territorial integrity or political independence of Iraq is threatened.”
Significantly – given the tension between the US and Iran, and the latter’s close relations with the Iraqi administration’s Shia parties – the draft agreement specifies that the “US does not seek to use Iraq territory as a platform for offensive operations against other states”.
General David Petraeus, US commander in Iraq, is to face questioning from all three presidential candidates on Capitol Hill today when he reports to the Senate on his surge strategy, which increased US forces in Iraq by about 30,000 last year.
Both Clinton and Democratic rival Barack Obama are committed to beginning troop withdrawals from Iraq. Republican senator John McCain has pledged to maintain troop levels until the country is secure.
rdian has an article on this on April 8, 2008 under