Iraq war: violating the War Powers Act

Accountability for an illegal war?

No "imminent" threat

By D. Lindley Young
The Modern Tribune - January 14, 2005

"To permit Presidential policy, agenda or decree to set new standards for going to war, when they conflict with well established U.S. law, is a dangerous precedent. It opens the way to wars based upon propaganda rather than evidence. "

WASHINGTON, D.C. (1/14) After the White House confirmed Wednesday that the Iraq Survey Group headed by Charles Duelfer had halted any further search for nuclear, biological and chemical weapons in Iraq, some are calling for answers. This week, House Minority Leader Nancy Pelosi (D - California) said, “Now that the search is finished, President Bush needs to explain to the American people why he was so wrong, for so long, about the reasons for war."

With a new focus on the reasons for the Iraq war, some are questioning whether the war was legal. Under U.S. law, it was not.

The authority under which Bush purportedly acted to go to war in Iraq arose under “House Joint Resolution Authorizing Use of Force Against Iraq, October 10, 2002” (the Iraq Resolution). However, the ostensible "statutory authority" granted to the President to was conditional.

In fact, Congress specifically made that authority, if any, of the President to go to war with Iraq subject to the War Powers Resolution of 1973 (War Powers Act or WPA). The Iraq resolution was definite. “Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.” The Iraq Resolution only granted the President the right to determine whether the standards required by War Powers Act Congress were met.

In other words, the Iraq Resolution was not an authorization to go to war, it was a mandate to follow the standards for war set forth in the War Powers Act. Congress made clear that in 2002, as in 1973, the War Powers Act was, and now is, the law of the land concerning war. Based upon the plain language of the Iraq Resolution, Bush was required by law to meet the conditions of the WPA before going to war with Iraq. He did not.

The WPA required "clear" evidence of an "imminent" threat by Iraq to the U.S. to justify war.

The words "clearly" and “imminent” are repeatedly used in the War Powers Act to describe situations where U.S. military force is lawfully permitted. (Under the section entitled “Purpose and Policy,” the word “imminent” is used two (2) times and “clearly” once (“into situations where imminent involvement in hostilities is clearly indicated by the circumstances”). These words are used under the section entitled “Consultation” (“into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances”); the section entitled “Reporting” in “absence of a declaration of war” (“into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances”); and, the word “imminent” is used under the section entitled “Interpretation of Joint Resolution” (“there exists an imminent threat that such forces will become engaged, in hostilities”).

Without question, the War Powers Act bound the President at the time of the Iraq war. It required a “clearly” defined “imminent” threat to America before the President could approve the use of United States armed forces in Iraq. The only authority Congress granted Bush was the authority to act pursuant to the WPA. There was no declaration of war nor specific Congressional grant of authority to go to war.

The determination as to whether these standards of evidence were met was delegated by the Congress in the Iraqi Resolution to George Bush. There is no evidence that he made any finding, decree, resolution or statement that established that the standards required of the WPA were met.

The decision to go to war is a matter of "evidence," not hunch or opinion. Under U.S. law, war requires clear evidence of imminent threat. No more, no less. Historical precedent or that fact that a prior President may have used military force is not enough to justify a war which violates the law. Moreover, matters of opinion as to whether America will be made safer by a war are not good enough. Neither is a belief that a war is necessary to protect national security. Nor is freeing people and providing democracy.

Regardless of the number of moral or policy arguments made by the President for the war in Iraq, however noble, the Iraq war was illegal under U.S. law. The War powers Act does not permit the President to enforce United Nations resolutions, to remove repressive regimes, or the even the prevent another nation from acquiring WMD. Indeed, UN Security Council Resolution 1441 did not authorize war on Iraq. It authorized "inspections." There was a clear agreement at the time 1441 was passed that there would be a second resolution before military force was used. There was not one.

In any event, the President could not enforce U.N. Resolutions or otherwise deal with the so called Iraq threat, absent “clear” evidence of an "imminent" threat by Iraq to the U.S. An Act of Congress, the War Powers Act, the law of the land prevents war on abstract concepts of emerging or gathering threats that may occur sometime in the future. The law is specific that threat must be clear and imminent. Threat alone is just simply not enough to go to war.

Almost anything could be a gathering or potential threat. China, Russia, the EU or any other growing economic or military power may be a threat somewhere down the line. Certainly, it may be argued that children being educated in Islamic religious schools -- madrasahs - are a future threat since they could be opposed to U.S. policies and become al-Qaida . Do we send in the assassin squads now or invade these countries now? Under Bush thinking and policy we could.

The President is not above the law in a democratic society where the law is determined by democratic process. To permit a President to act above the rule of law paves the way for wars without end and invites chaos to the world. A standard less than “clear” evidence of an “imminent” threat required by our law under the War Powers Act, makes it too easy for those who place world domination over world order and world domination over world leadership to achieve their ambitions.

The Bush administration defends the war on Iraq as “right,” regardless of the evidence, now, or before the war, and provides further justification for the war by arguing that the war in Iraq has made us safer.

However, “right” is not necessarily legal. Kevorkian believed he was “right” in assisting suicides for the elderly that were suffering and near death. Now he is in prison because his purported acts of mercy violated the law. The anti-abortionist that kills the abortion doctor to save the lives of the unborn feels he was “right,” but, the law considers it murder. In Chile, Pinochet justified kidnapping and murder as necessary in his war against terror, yet, he must now faces criminal charges since what he did was against the law in Chile.

The President’s moral clarity and his noble missions may allow his head to be in the clouds, but, the law holds his feet to the ground. The rule of law is the anchor which grounds our nation and the world. For this reason, the law cannot permit renegade application, ignorance or disregard. Otherwise, it is rendered meaningless, there is the potential for despotism and the violation of obligations democratically made.

Moral superiority and moral clarity about what is “right” is not a justification the law recognizes for its violation. Kevorkian, Pinochet and the anti-abortionist claim moral sanction. However, the law requires clear vision as to what the law is - not moral clarity. The law of the land does not allow anyone to pick and chose what is right.

The grounds for the war on Iraq were “maybes.” Maybe, they have WMDs. Maybe, they plan to make nuclear weapons. Maybe, they will be a threat sometime in the future. Maybe, there was a gathering or emerging threat.

The “maybe” wars were and are illegal. They violate U.S. and international law as well as the “just war” doctrine applied by the civilized world for centuries to determine when war was “right.” What Bush says is “right,” the law says is wrong.

Was the Wars Powers Act, incorporated in the Iraq Resolution, violated? There was no evidence or finding of an "imminent" threat to the U.S by Iraq, no "national emergency," no hostilities "with or within" Iraq, nor was there any declaration of war with Iraq. The law is specific and requires "clear" evidence of at least one of the foregoing grounds before U.S. troops can be sent to war.

The War Power Act was intended to avoid future Vietnams. It set standards of evidence and urgency to permit war. The law is good and if not good, it is still binding. Had it been followed, we would not be in Iraq. Inspections would have continued and the result would have been a finding of no WMDs.

Now America is paying a great price in our blood and treasure to support a war that was a violation of a law democratically enacted. The WPA prevents the doctrine of preemption and requires, among other things, a finding of "clear" evidence of "imminent" threat or one of the other grounds for war.

Since the war in Iraq started, there have been repeated admissions by members and of the Bush administration and by Bush supporters that there was no "imminent" threat to the U.S. by Iraq and that Bush he never said there was one. This is tantamount to an admission that the WPA was violated and and that the war in Iraq is illegal.

There is no king in a democracy. Our system requires that all act according to the rule of law. President Bush should be held accountable for an illegal war. Otherwise, the signal is sent that the President is above the law. Such a signal fosters, if not encourages, global disregard for international law, unilateralism by America and the advance of those that seek their place in history above America's proper place in the world.