Go Long? Go Big? Go Back To Congress

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By Michael J. Glennon
Thursday, December 7, 2006

With President Bush apparently inclined to accept some of the recommendations released by the Iraq Study Group yesterday and reject others, there's an important consideration to keep in mind. Although it's widely assumed that the president alone is empowered to decide what military option the United States should pursue in Iraq, that is not the case. Congress did not, as many believe, write the president a blank check in 2002 with regard to the use of force in Iraq. It still has a lot to say on the subject.

Since its earliest days, the Supreme Court has recognized a president's obligation to respect congressional restrictions when Congress has authorized "imperfect war" -- a war fought for limited purposes. In an imperfect war, Justice Bushrod Washington said in Bas v. Tingy (1800), those "who are authorized to commit hostilities . . . can go no farther than to the extent of their commission." The following year, in Talbot v. Seeman (1801), Chief Justice John Marshall wrote that "[t]he whole powers of war being, by the Constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry."

Congress in 2002 authorized imperfect war in approving the use of force in Iraq for specific, limited objectives. As those objectives are achieved, or different ones are pursued, legislative reauthorization will be required. Absent congressional approval, the president cannot use force in Iraq to pursue new objectives, beyond the protection of forces being withdrawn.

Congress specified two objectives in 2002: to "defend the national security of the United States against the continuing threat posed by Iraq," as its resolution put it, and to "enforce all relevant United Nations Security Council resolutions regarding Iraq." The "continuing threat" referred to the danger posed in 2002 and earlier by Saddam Hussein's regime. That threat was seen to flow from the regime's pursuit and possession of weapons of mass destruction. Iraq, the resolution noted, "attempted to thwart the efforts of weapons inspectors to identify and destroy" these weapons.

In 2002, Congress said Iraq continued "to possess and develop a significant chemical and biological weapons capability," actively sought a nuclear capability, and supported and harbored terrorist organizations. Doing so placed Iraq in "material and unacceptable breach" of its international obligations, as set out in various Security Council resolutions. The threat, the resolution found, was that "the current Iraqi regime" would either employ weapons of mass destruction in a surprise attack against the United States or "provide them to international terrorists who would do so."

When President Bush signed the 2002 authorization, he said that "Iraq will either comply with all U.N. resolutions, rid itself of weapons of mass destruction, and end its support for terrorists, or it will be compelled to do so."

Iraq has now done so. Saddam Hussein's regime is history, and the threat posed by it is gone. Hussein himself has been captured, tried and sentenced. A new constitution has been adopted by the Iraqi people. A different government is in place. That government is in compliance with all relevant Security Council resolutions. It does not possess or seek weapons of mass destruction. It does not support or harbor terrorists.

There are, of course, terrorists present in Iraq today who pose a threat to American troops there. They may someday pose a threat to the general U.S. population. But Congress in 2002 authorized use of force against the old Iraqi government, not against groups unaffiliated with Saddam Hussein's regime (many of which actually opposed it). Fewer and fewer of those who are fighting American troops are remnants of Hussein's regime. Hostility to the American presence in Iraq is increasingly broad-based, with polls now showing majority support -- even among Shiites -- for attacking American troops.

Whatever the semantic characterization, the war looks increasingly unlike the one that Congress authorized. What options, then, would require renewed congressional approval? Negotiation is an exclusive presidential prerogative; a decision to talk directly with Syria or Iran or to convene a regional peace conference would be for the executive alone. But military options are another matter. The options to "go big" or to "go long" -- to increase the magnitude or duration of the U.S. effort by systematically taking on assorted Shiite militias, opportunistic criminals, foreign jihadists and others who were not part of Saddam's regime -- would not fit within Congress's existing authority. Congress in 2002 authorized the president to use force in a war against the sitting Iraqi government, not for an Iraqi government or against an opposition that did not then exist.

As a matter of sound policy, as well as constitutional principle, Congress should participate in weighing recommendations on future military action. Whatever military option is selected, its success will depend upon broad support from the American people. Congressional involvement will not guarantee that support, but congressional exclusion will almost surely preclude it.

The writer is a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University and former legal counsel to the Senate Foreign Relations Committee.


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