Monday, December 11, 2006
Responsibility for the Iraq War
As the war in Iraq becomes less and less popular, there is more and more finger pointing over responsibility for having started it. This is, of course, understandable. Whenever things go badly, people try and blame others and/or attempt to show that they were not alone in making the mistake.
Many people point out that nothing productive really comes out of the blame game, and there may be some truth to that argument. However, if mistakes were indeed made, it is worthwhile to examine what actually happened in order to, perhaps, avoid making a similar mistake in the future. For this reason, it might be beneficial to examine the actual Authorization for the Use of Force Against Iraq, passed in October of 2002.
After a lot of gibberish about how Saddam Hussein is a bad guy, and after acknowledging past congressional and UN Security Council resolutions against him, the meat of the authorization is contained in section 3:
It is important to read this section of the document carefully. Some who have merely glanced at it, might argue that the use of "and" in subsection 3(a) between clause (1) and (2) requires that both those causes must be present for the authorization to be valid, but this is clearly not the case.
The "and" is subject to its context as part of the "authorized … in order to" language. If someone is authorized to take an action in case (1) and in case (2), this means that either one or both of the reasons are sufficient cause for action.
This is made obvious by the language in the subsequent notification requirements given in subsection 3(b)(1) wherein the "either…or" construct is used for the same two causes:
Obviously, it wouldn’t make any sense to require both (a) and (b) but only require notification of either (a) or (b).
The resolution does have an additional stipulation, clause 3(b)(2), written into the notification portion, which goes beyond the other two possible causes.
It is connected to the previous clause, 3(b)(1), with “and”. In that instance, because of the context, the use of "and" makes the second part of the determination absolutely indispensable. But the language used in that paragraph is so broad as to render it legally meaningless. To require that acting pursuant to this resolution is consistent with something just means that it mustn’t be directly contradictory to it. In reality, many have pointed out that Iraq is totally unrelated to terrorists and the events of September 11, 2001, but it would be hard to claim that the war there is contrary to a response to them.
In sum, the resolution gives the President authority to use force in order to enforce Security Council resolutions (whether the resolutions themselves have military enforcement mechanisms is not really addressed – they don’t), and also to defend the national security of the United States against what the resolution declares to be “the continuing threat posed by Iraq”. This being the case, it is almost impossible to argue that the President acted outside Article I, section 7, paragraph 11 of the US Constitution, which grants to congress the exclusive authority to declare war.
The only conditions, which the resolution puts on the President have been satisfied by his simple notification that either one or the other of the stated causes could not be adequately addressed by peaceful means.
As an epilogue, it should be noted that the President’s letter of March 18, states that he had determined that peaceful means would neither adequately protect the national security of the United States nor lead to the enforcement of the relevant UN resolutions.
Since the relevant resolutions all addressed the issue of weapons of mass destruction (wmd), and since it has since become painfully obvious that Iraq was not in material breech of those resolutions at the time of the war, it can be argued that the President went to war based on a falsehood (or at any rate a mistaken determination).
However, that false determination was not indispensable to his going to war under the congressional authorization. The resolution, itself declared Iraq to be a “continuing threat”, and made this an acceptable cause for military action. Therefore, the claim that the President exceeded his authority, and that congress or, more precisely those members of congress who voted for the authorization, are, somehow, not responsible for the current imbroglio can not be sustained.
Many people point out that nothing productive really comes out of the blame game, and there may be some truth to that argument. However, if mistakes were indeed made, it is worthwhile to examine what actually happened in order to, perhaps, avoid making a similar mistake in the future. For this reason, it might be beneficial to examine the actual Authorization for the Use of Force Against Iraq, passed in October of 2002.
After a lot of gibberish about how Saddam Hussein is a bad guy, and after acknowledging past congressional and UN Security Council resolutions against him, the meat of the authorization is contained in section 3:
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.
(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. .
It is important to read this section of the document carefully. Some who have merely glanced at it, might argue that the use of "and" in subsection 3(a) between clause (1) and (2) requires that both those causes must be present for the authorization to be valid, but this is clearly not the case.
The "and" is subject to its context as part of the "authorized … in order to" language. If someone is authorized to take an action in case (1) and in case (2), this means that either one or both of the reasons are sufficient cause for action.
This is made obvious by the language in the subsequent notification requirements given in subsection 3(b)(1) wherein the "either…or" construct is used for the same two causes:
(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.
Obviously, it wouldn’t make any sense to require both (a) and (b) but only require notification of either (a) or (b).
The resolution does have an additional stipulation, clause 3(b)(2), written into the notification portion, which goes beyond the other two possible causes.
(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..
It is connected to the previous clause, 3(b)(1), with “and”. In that instance, because of the context, the use of "and" makes the second part of the determination absolutely indispensable. But the language used in that paragraph is so broad as to render it legally meaningless. To require that acting pursuant to this resolution is consistent with something just means that it mustn’t be directly contradictory to it. In reality, many have pointed out that Iraq is totally unrelated to terrorists and the events of September 11, 2001, but it would be hard to claim that the war there is contrary to a response to them.
In sum, the resolution gives the President authority to use force in order to enforce Security Council resolutions (whether the resolutions themselves have military enforcement mechanisms is not really addressed – they don’t), and also to defend the national security of the United States against what the resolution declares to be “the continuing threat posed by Iraq”. This being the case, it is almost impossible to argue that the President acted outside Article I, section 7, paragraph 11 of the US Constitution, which grants to congress the exclusive authority to declare war.
The only conditions, which the resolution puts on the President have been satisfied by his simple notification that either one or the other of the stated causes could not be adequately addressed by peaceful means.
As an epilogue, it should be noted that the President’s letter of March 18, states that he had determined that peaceful means would neither adequately protect the national security of the United States nor lead to the enforcement of the relevant UN resolutions.
Since the relevant resolutions all addressed the issue of weapons of mass destruction (wmd), and since it has since become painfully obvious that Iraq was not in material breech of those resolutions at the time of the war, it can be argued that the President went to war based on a falsehood (or at any rate a mistaken determination).
However, that false determination was not indispensable to his going to war under the congressional authorization. The resolution, itself declared Iraq to be a “continuing threat”, and made this an acceptable cause for military action. Therefore, the claim that the President exceeded his authority, and that congress or, more precisely those members of congress who voted for the authorization, are, somehow, not responsible for the current imbroglio can not be sustained.
# posted by Greg Potemkin : 4:11 PM
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