August 9, 2002

IS INVADING IRAQ CONSTITUTIONAL? William Van Alstyne, a professor of constitutional law at Duke who I respect very much, has his doubts, as expressed in this letter responding to questions from the Senate Appropriations Committee, which he was kind enough to email me:

Third, and most recent among the resolutions you enclosed, is the express “Authorization for Use of United States Armed Forces” by Congress, adopted on September 18, 2001, following the cataclysmic events of September 11. The authorization is quite current And it calls expressly for the use of U.S. Armed Forces “against those responsible for the recent attacks launched against the United States.” It is also framed in the following quite inclusive terms, in § 2(a), that:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

I nonetheless think it doubtful that this will “stretch” to cover a proposal to use military force to overthrow the government of Iraq as is currently being considered, without authorization by Congress, absent quite responsible evidence that Iraq was involved in “the terrorist attacks that occurred on Sept.

11, 2001″ –evidence that may exist but not that I have seen reported in the press or elsewhere. I note, respectfully, that the authorization is not an “open-ended” one to authorize the use of military power against any nations, organizations, or persons whom the President identifies as proper targets insofar as it would merely help in some general sense to “prevent” future terroristic attacks by such nations, organizations, or persons. Rather, it is to permit such uses of military power only with reference to those identified as having contributed in some substantial manner to the September 11th attacks, or known now to be harboring such persons.

Van Alstyne does allow that it’s arguable that the 1991 declaration against Iraq might allow for such an act — since, basically, that war never really ended — but doesn’t think that’s the case.

An interesting argument, and certainly an argument that the broad view of the Bush Doctrine (criticized here by Bruce Ralston of Flit) won’t pass constitutional muster. I generally agree with Van Alstyne on this, and on Executive use of force generally, though I note that our view of these issues has little in the way of judicial support, or Executive or Legislative support for that matter. Though I think the Framers intended otherwise, Presidents have generally enjoyed a lot of freedom where the employment of troops is concerned.

Still, if Bush were tricky, he’d call for a vote in Congress in October, before the election (so as to avoid having a “lame duck” Congress vote on such a momentous issue). I think this would work to his political advantage, as well as being faithful to the Constitution. But it’s not the sort of thing that risk-averse White House political wonks want to do.

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