Ackerman's Rush to Judgment

Slate's blog on legal issues.
April 5 2008 8:53 PM

Ackerman's Rush to Judgment

Too often, people caught up in heated political debates assert that disfavored policies are not merely disfavored but illegal . Of course, the debate over the war in Iraq has been no exception to this sorry habit, as the Bush administration's critics long have declared the war "illegal" or "unconstitutional."

Bruce Ackerman, usually a level-headed theoretician, falls prey to this error in today's Washington Post , when he (and Oona Hathaway) argue that the war in Iraq will become illegal on New Year's Day 2009.

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They cite a provision of the congressional authorization that limits that the use of military force only (1) to prevent Iraq's threat to our national security, and (2) to enforce all relevant U.N. resolutions. They dismiss the applicability of the national-security prong, and note that the current U.N. resolution expires on Jan. 1, 2009. Thus, they argue, the war will be illegal on Jan. 1, 2009, absent a new resolution.

I dare say that Ackerman completely misreads the joint resolution authorizing the use of military force in Iraq.  That enactment reads :

(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.

In short, the authorization remains in effect so long as the president determines that military force is necessary and appropriate in order to defend the national security threat posed to the United States by Iraq.

Ackerman and Hathway glibly dismiss the possibility that the current state of unrest in Iraq threatens our nation's national security. They argue that al-Qaida in Iraq cannot qualify as part of the "continuing threat posed by Iraq," because "al-Qaeda only came into Iraq as a result of U.S. intervention[,] [and] 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."

Pardon me if I disagree with their crabbed reading of the authorization. Congress recognized at the time that part of Iraq's threat in 2002 was the possibility that it did or could harbor terrorist organizations hostile to the United States. Again, let's look at the war authorization's plain terms:

Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;

Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of American citizens;

In short, the presence of terrorists in Iraq was and is grounds for Congress's authorization of the war effort. So long as the president determines that terrorists in Iraq pose a threat to our national security (or that Iraq poses other national security threats), the war remains authorized by Congress. 

Bottom Line:  Ackerman and Hathaway no doubt disagree with the war as a matter of policy. But to wrap their opposition up in the mantle of the rule of law, despite the plainly contrary words of the statute they purport to interpret, is silly.

( Note: After first posting this item, I edited it for length. AW )

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