Friday, March 07, 2008

What Do the Authorizations for Use of Military Force Authorize, Anyway?

Marty Lederman

There has been a great deal of debate, and consternation, in Congress recently concerning the Bush Administration's intention to enter into a a bilateral Status of Forces Agreement (SOFA) with Iraq by the end of July. The Administration has indicated that it does not plan to obtain any congressional authorization or Senate approval for such an agreement. Many legislators believe this would be unconstitutional. So, for example, Senator Clinton has introduced S.2426, which would express the "sense of Congress that any bilateral agreement between the United States and Iraq involving `commitments or risks affecting the nation as a whole', including a status of forces agreement (SOFA), that is not a treaty approved by two-thirds of the Senate under Article II of the Constitution or authorized by legislation does not have the force of law," and that would prohibit the use of funds to carry out such an SOFA that is not such a Senate-approved treaty.

In an eye-opening article the other day, the Washington Post reported that the Bush Administration has now cited Congress's 2002 authorization for use of military force against Iraq as the authority for the President unilaterally entering into such a Status of Forces Agreement.

But, unless I have the wrong document, the State Department letter in question does not argue that the 2002 Iraq AUMF would be authorization for an SOFA. Instead, that letter "merely" discusses the Administration's theory for why it may continue combat operations in Iraq beyond 2008. The question from Representative Ackerman was this:
Does the Administration believe it has the constitutional authority to continue combat operations in Iraq beyond the end of this year absent explicit additional authorization from Congress?
The State Department letter basically answers this question "yes" -- see its reference to the Commander in Chief Clause.

But that question is a bit beside the point, because the State Department letter refers to at least three statutory authorizations, as well: The 2002 Iraq AUMF; the September 18, 2001 authorization for use of military force against those responsible for the 9/11 attacks; and, most importantly, appropriations statutes in which Congress has repeatedly provided funds for the Iraq war.

I think it is a very difficult and interesting question whether the Iraq AUMF continues to authorize the Iraq War. Moreover, I think the Administration's reliance on the 9/11 AUMF as support for the Iraq War is ridiculous -- akin to its reliance on that same AUMF as a basis for disregarding FISA. (The letter refers to President Bush's statement in March 2003 that the military operations in Iraq are "consistent with" with the U.S. and its allies taking action against those responsible for 9/11. And indeed it may be. But as a friend noted, the Iraq War is "consistent with" the Social Security Act, as well -- and with virtually all other extant laws. Hey, it's consistent with the Celtics win over the Pistons the other night, and the results of the Vermont and Ohio primaries . . . and with much else, as well. But the question is not whether the Iraq War is consistent with a law, but instead whether it was authorized by the 2001 AUMF -- and the answer to that question is no, it was not.)

But all of this is somewhat academic, because as long as Congress funds the Iraq War, there will be statutory authority for it, regardless of what the Commander in Chief Clause and/or the Iraq AUMF might authorize.

More to the point, the State Department letter does not say anything, one way or the other, about whether and why the President's Status of Forces Agreement would be lawful.



Do you believe that Congress exercised any Article I power in enacting AUMFs which gave them legal effect.

The only possible Article I power Congress could be exercising in enacting an AUMF is the power to declare war. No other provision of Article I grant Congress the power to authorize military operations. For this reason, I have argued here on multiple occasions that AUMFs are simply declarations of war by another name.

The White House seems to be relying upon the AUMFs as a declarations of war against al Qaeda and its allies and against the Baathist regime in Iraq. One could argue that, with the removal of the prior Baathist regime and the surrender of the Baathist insurgency, the second AUMF has lapsed because there is not longer a de facto war against the Baathists now that they are allied with us.

However, the objective of the Surge has been and continues to be the destruction of al Qaeda in Iraq. AQI is either al Qaeda or an ally of al Qaeda depending upon the ideological ax being ground about whether al Qaeda existed in Iraq prior to the liberation. However, in either case, war against AQI still fits within the mandate of the post 9/11 AUMF.

If you believe that an AUMF has legal effect and that effect is to declare war, then there us no time limit in either the Constitution or the text of the AUMF stating that the authorized military operations must have ended by December 31, 2007.

The President has exercised his CiC power to enter into literally hundreds of agreements with the Iraqis concerning military and economic cooperation in the prosecution of the Iraq War The basing agreement is merely one of these. There is nothing unconstitutional about the President's entry into these agreements.

It is almost certainly true that these agreements do not have the force of treaty law. Rather, they rely upon the honor system. The next President and/or Congress can breach all of these agreements and pay no legal price. Such a breach would seriously damage our relations with Iraq, though. The latter result is what the Dems who wish to get out of Iraq fear. These Dems do not want to provide any other grounds to argue that they are betraying an ally.

When I read the authorization, I didn't think it extended to Iraq. It dealt with actions against those responsible for the New York and Pentagon attacks, and their accomplices.


Sweet Crude Victory!

US Vice President Richard Bruce Cheney convened a press conference early this moring on the White House lawn to announce and publish, “Our Open Letter to the World: Yes, Our Sights Were Set Upon Iraq’s Oil.” The Vice President was flanked by several, prominent signatories of this newly published “Open Letter,” later identified as officials or principal participants from the VP’s Energy Task Force; the Pentagon’s Office of Special Plans; and The White House Iraq Group.

The Vice President began his remarks by announcing what he describes as, “[O]ur true and final victory in Iraq.” These remarks referenced the Iraqi government’s passage and ratification, earlier this week, of both it’s new “Oil Law” and the “The Permanent US/Iraq Agreement on Military Cooperation.”

“Iraq’s new Oil Law,” said the Vice President, “at last codifies all three of our fundamental and hard-won objectives in Iraq.” The Vice President also noted “the indispensable and enduring importance” of the new “Permanent Agreement,” also recently passed by the Iraqi Parliament. “This Agreement, “ said the Vice President, “ensures our ongoing ability to enforce the new legal rights granted to our corporations by Iraq’s Oil Law.”

A summary of those “three . . .fundamental” objectives was later spelled out in an “Official Supplementary Press Release” distributed immediately after the news conference, which included the full text of “Our Open Letter to the World.” As that “Letter” states, those “fundamental objectives” were: “1) The de-nationalization of Iraq’s oil industry; 2) The expulsion of ‘foreign suitors’ for Iraq’s oil; and 3) The delivery of control of Iraq’s vast oil wealth to ‘our’ oil extraction and oil service corporations.”

When asked to comment on the US “victory” in achieving these objectives, the Administration official distributing the “Release” remarked only, “Bub-bye France! Bub-bye Russia! Bub-bye China!”

Soon after the press conference, the Vice President was regaled at a “Victory Luncheon” held within the White House. Of all the hortatory remarks lavished upon VP Cheney, it was a statement read by AEI-fellow, Michael Ledeen that brought all the luncheon’s attendees to their feet:

“Our bombs express only our benevolence. Our DU munitions are tipped with love! Our torture chambers are but workshops of our compassion. Our corporations will now begin to export 'shrink-wrapped pallets of cash' out of Iraq, but will plant in this arid, blood-soaked place the patented seeds of our superior McCivilization. And now that our benevolence and love and compassion have conquered the futile resistance to our goodness, let’s join hands around the smoking rubble, the funeral pyres, and ‘blend with ours your voices in the triumph song!’”

Mr. Ledeen summarily punctuated his statement by shaking his fist in the air and exclaiming, “Victory in Iraq! On to Iran!”

A "SOFA" agreement, needed to ensure enduring "enforcement" rights, together with the "benchmark" passage of a new "Oil Law" in Iraq, encapsulates the real, yet-unresolved, "mother of all legal battles" still roiling both in Baghdad and our nation's Capitol.

Marty, I've said it before, and appreciate the chance to say it again: The September 18, 2001 AUMF is unconstitutional on its face, void for vagueness due to "blank check" language such as the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines. Given the high court's preference to defer to the executive whenever it can find a legislative reason to so defer, then as long as this stands we cannot really expect much from even a liberal court (much less the cronies currently wearing gowns.)

Answer: Repeal the AUMF. Until such a time as it is repealed or struck down and the "logic" by which it was originally enacted is repudiated then we probably deserve what we get, including eternal imperialist adventures such as we have in Iraq.

Bart: "I have argued here on multiple occasions that AUMFs are simply declarations of war by another name."

This is more than a touch disingenuous. The AUMF's do not have the force of a formal declaration of war, they are instead intentional attempts to end-run the limitations of imposing and imposed by such a formal declaration, akin to the notion of "war" by "executive order." The AUMFs, both of them, attempt to create a legal middle ground where the neo-cons can have their cake and eat it too, by shouting, "Congress said we could!" while at the same time saying, "Congress can't tell us nothin!"

You aren't stupid, nor lazy, and it would be a real benefit to have your reasoned opinions rather than what seems partisan shilling.

@porcupine_pal: There are two separate items; the September 18, 2001 AUMF, which is the legislative embodiment of the so-called "war" on "terror" passed a week after WTC 7 came down, and the 2002 AUMF which specifically addresses Iraq. Marty is right, so long as those are on the books and Congress keeps giving money there's a real uphill battle to opposing anything done in their name.

Yes. I was referring to the requirement that the President certify that the actions taken be against those who committed the WTC attacks, and their accomplices. The word Iraq is all over the document. The facts, and the PResident's certification, did not match.

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Perhaps the tyrant's worst trick is to invoke a popular assent that never was. The trick's ultimate unveiling comes too late, as the scheme falls to tatters. It's then that tyrants proclaim most loudly that the people were in on it all along and are now getting their just deserts. It's then that the fine print and the true contempt emerge.

The German film, "Der Untergang" (the Downfall), is set in Hitler's bunker during April 1945, when Russian troops were storming Berlin. The end of the Third Reich and its highest echelon was days away, and everybody knew it.

The film is revealing on many levels, but one aspect touches the Bush administration's latest move: the claim that the nation signed up for perpetual war and occupation in the belly of Islam based on a piece of paper and has no further say in the matter regardless of what the Constitution and good sense suggest.

At several points in the film, people who were, yes, high-placed Nazis but also Germans, enter the bunker hysterically, giving report of Germans dying left and right. They plead on behalf of the people to Goebbels and Hitler, whose regime and personal days were both numbered, the air thick with technical plans for suicide.

"Are the people – das Volk – not the ultimate object of concern?" ask the witnesses to the spreading but still mitigable carnage. The response from the top dogs was two-pronged. On the one hand, the people can't be heard to complain: they gave the Third Reich a mandate and need to see it played out in the only dignified way left open to its leadership. On the other hand, the people have proven themselves cowards and unworthy of the grand design, so they deserve whatever fate awaits them.

For all their stark remoteness from the present, the bunker scenes provide ways to look at ourselves and to look ahead, beginning with a stark view of the present. There are only so many forms of tyranny, and it has only so many tricks.

There are two separate questions. An AUMF (and similar resolutions) provide authorization from the US Congress for US Military forces to engage in combat somewhere in the world. However, the US occupation ended in June, 2004 with the return of sovereignty to the Iraqi government. Whatever we are doing now, it is not a war with the government of Iraq. Therefore, for US forces to remain in Iraq we need, in addition to Congressional approval for them to be there, some agreement with Iraq. Typically this is a SOFA, which establishes the responsibilities and limitations of the US and Iraqi forces. For years it seemed easier to proceed under informal agreements rather than to try and get a written agreement.

If you submit an agreement to Congress, then you probably have to submit it to the Iraqi legislature. Right now you would have trouble getting the Iraqi legislature to agree on a resolution saying that five is a number greater than four. So either you have an agreement between executives, or you have nothing.

All that a SOFA does is substitute a written agreement between executives for the current unwritten agreement under which we have been operating for almost four years. You do not need Congressional authority simply because something is committed to writing. However, without Congressional authority it remains simply an agreement between executives and has no force of domestic law.

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Occasional, when you look at your comment, you should see a little trash-can symbol that only you can see -- just on your own comments. This IIRC will let you delete a comment, hence the occasional "This post removed by the author" bits.

Of course, Prof. Lederman will probably delete the whole thread when it ceases to please him - never mind the valuable effort put into many comments by persons of good will - so the problem is only temporary.

CRS RL-34362 is a good summary of Congressional oversight of SOFA's and other international agreements. It particularly focuses on the impedning US-Iraq agreement.


As with most CRS publications, it's a fairly easy read.

Thanks, anderson. I ditched the extra version.

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