What Does an Illegal War Look Like?

Marty Lederman

In the Washington Post yesterday, Bruce Ackerman and Oona Hathaway argued, not without some force, that when the current U.N. Iraq Resolution expires on December 31st, there will no longer be any factual predicate for the President's use of military force in Iraq pursuant to the 2002 statute that authorized such force.

Although the Bush Administration does not concede that congressional authorization will expire on New Year's Eve, it understands the strength of the argument, and therefore it is planning to establish new authorization, not by way of a treaty or law approved by Congress, but instead through a "sole executive agreement" with Iraq that would commit the U.S. to provide military support there for the foreseeable future.

As I understand them, Bruce and Oona argue that such a unilateral presidential agreement would be unlawful for one or both of two reasons: (i) the President does not have independent power to enter into such an agreement because he would not have the constitutional authority to unilaterally introduce troops into present-day Iraq in the first place; and/or (ii) such an agreement would violate implied statutory limitations -- "conditions" -- placed on the President in the 2002 law.

I tend to think although the recent Medellin decision gives some support to the first argument against the sole executive agreement, the second of these arguments (that the agreement would transgress limits implicit in the 2002 statute) is the stronger one. Nevertheless, both arguments are certainly contestable and, more to the point, President Bush will in fact reject both arguments, will sign the agreement with Iraq, and will keep troops in Iraq in 2009, without specific congressional authorization. As will the next President, come January 20, 2009. (Bruce and Oona point to proposed legislation that would forbid the use of funds to deploy troops in Iraq, but I'm assuming such legislation, if passed, would never survive a veto.)

And what then? Well, by that point, Congress will have done one of two things: It will either have appropriated funds in support of the continuing deployment to Iraq, or it will have dramatically limited its appropriation, to levels (or on conditions) that are only consistent with (virtually) immediate withdrawal. If, as is likely, it does chooses the former option, well then won't that appropriation provide the requisite legislative authorization to support the President's sole executive agreement, even if Bruce and Oona were correct that the agreement would be unconstitutional absent such approval?

Bruce and Oona say no: "Approving funds is not sufficient to authorize military action. If it were, the president could start any fight he pleased, and then force Congress to choose between exercising its constitutional powers and supporting the troops."

I'm not quite sure I understand this argument. Why is Congress limited to a Hobson's Choice? Couldn't Congress, instead of fully funding a full-scale operation in Iraq, insist that funds be expended only (i) for large-scale withdrawal and (ii) for limited functions of the remaining troops, as Senator Obama's proposed legislation would have done in 2007? In that case, not only would the President (arguably) lack independent constitutional power to prolong the military action in Iraq, he would be required by law to change course. This is how OLC put the point when the same issue when Congress appropriated funds to support President Clinton's controversial 1999 air campaign in Kosovo:

Some have argued that . . . appropriation statutes that fund ongoing war efforts do not constitute authorization of those war efforts. See . . . War Powers Legislation: Hearings Before the Senate Comm. on Foreign Relations, 92d Cong. 23 (1973) (statement of Professor Alexander M. Bickel) ("To appropriate money in support of a war the President is already waging, it seems to me, is no more to ratify his action in responsible fashion than to appropriate money for the payment of his salary."); . . . . This argument can take one of two forms. First, one could argue that a general defense-related appropriation statute does not authorize the ongoing hostilities because it provides only general defense-related funds and does not indicate any approval of the specific hostilities at issue. While this might be true, it does not undermine the basic principle . . . that an appropriation statute specifically and conspicuously aimed at funding hostilities may constitute authorization of those hostilities. Second, some have argued that appropriations, regardless of how specific they may be with respect to ongoing war efforts, should not be interpreted to authorize continuing military operations because those appropriations could just as easily be understood as providing resources for men and women already in combat, simply to ensure that they do not suffer as a result of a disagreement between the Executive and the Congress regarding the wisdom of the deployment. See, e.g., Mitchell v. Laird, 488 F.2d at 615 (declining to decide whether President Nixon had exceeded his constitutional power on political question grounds, but noting that, "in voting to appropriate money or to draft men a Congressman is not necessarily approving the continuation of a war no matter how specifically the appropriation or draft act refers to that war. . . . An honorable, decent, compassionate act of aiding those already in peril is no proof of consent to the actions that placed and continued them in that dangerous posture."). Although this may be true in some cases, in other cases, as Ely explains, this proposition "doesn't make sense . . . [because] Congress could [phrase] its funds cut-off as a phase out, providing for the protection of the troops as they [are] withdrawn." Ely, War and Responsibility at 29. Congress took such a step with respect to hostilities in Somalia in November of 1993, when it provided that funds could be obligated beyond March of 1994 only "to protect American diplomatic facilities and American citizens, and noncombat personnel to advise the United Nations commander in Somalia." Pub. L. No. 103-139, § 8151(b)(2)(B), 107 Stat. 1418, 1476 (1993). Alternatively, Congress could preclude the use of funds to introduce additional troops, as it did through the 1971 Cooper-Church Amendment, which provided that "none of the funds authorized or appropriated pursuant to this or any other Act may be used to finance the introduction of United States ground combat troops into Cambodia, or to provide United States advisers to or for Cambodian military forces in Cambodia." Pub. L. No. 91-652, § 7(a), 84 Stat. 1942, 1943 (1971). [FN: Banks and Raven-Hansen explain the difficulty with the objection that it is impossible to construe national security appropriations as ratification because of the circumstances of their enactment: "The objection is exaggerated and ahistorical. It seems to proceed on the assumption that Congress's choices are all or nothing; fund or deny all funding. But the Vietnam War itself showed that Congress has intermediate options, including funding phaseouts, prospective cutoffs, and, subject to separation of powers limits, area limitations." . . . .] In the end, the question whether a particular targeted appropriation constitutes authorization for continuing hostilities will turn on the specific circumstances of each case.

That is to say: The ball will be in Congress's court, after all. And in order to know whether the continuation of military force in Iraq in 2009 will be unlawful, well, show me the money.
Posted 12:42 AM by Marty Lederman [link]