Was the invasion of Iraq unconstitutional?

Let us put aside, for a moment, any opinions we have regarding the invasion of Iraq in 2003. The question I want to ask is, was the Invasion of Iraq unconstitutional? And, if it was, what should have happened, and who is to blame?

According to the US Constitution, only Congress has the power to declare war. In article one, section eight, it states that Congress shall have power:

to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

There is no doubt that the framers of the constitution sought to limit the power of the executive (the president) to prevent him from declaring war on a whim, in much the same manner as a sovereign would. Since the constitution was framed, America has declared war only five times (literally 8 but WWI and II required multiple declarations).

Nevertheless, America has been involved in a number of "wars" in which no declaration was given. These would include Vietnam, Korea, the Gulf (1991) and Iraq (2003). Moreover, military actions against other nations, such as Operation El Dorado Canyon in 1986 resulted in attacks upon another nation without any formal declaration.

The question I am posing, however, is whether the 2003 invasion of Iraq was unconstitutional. In other words, was the military action sufficiently different enough from "undeclared wars" like Vietnam and more like the "declared wars" against Britain, Mexico, Spain, Germany and Japan in the 19th and 20th centuries?

The 2003 invasion of Iraq involved US military personnel (mainly) crossing the border into a sovereign nation, without their permission, with the express purpose of making war. Moreover, the clear plan and result was to completely defeat this nation's military forces, overthrow its president, dissolve its government, create a new government, and station troops inside this nation in order to maintain order and carry out the will of both the US government and the government it had created.

Considering the result of this military action, did it need a formal declaration of war? If you look at the Constitution, I think the answer is a clear "yes".

At what point does generic "military action" differ from a formal declaration of war? This is an issue that has vexed US constitutional experts. There is obviously some "grey line" somewhere between the two that may have been crossed a number of times in the 20th century.

But the invasion of Iraq was not, I believe, one of these "grey areas" that the constitution cannot define properly. The fact is that, if we take history into account, only the Second World War matches the Iraq invasion in its outcomes (defeat nation's military, dissolve government, create new government, station troops inside nation). Both Japan and Germany had this outcome.

America's declaration of war in 1917 led to US troops being involved in the First World War, which resulted in an outcome for its enemies that allowed some level of autonomy.

America's wars in the 19th century did not involve any overthrow of recognised government, nor did America completely destroy their enemies' armed forces (as they did in WW2 and in 2003).

What I'm pointing out is that the invasion of Iraq and its subsequent outcomes must clearly be seen as war - and a war requires a declaration from congress.

I don't believe that the framers of the constitution intended this formal declaration of war as merely a symbolic or ceremonial act. It was clear that they were limiting the power of the executive in order to prevent him from misusing America's military. While the constitution affirms that the president is the head of the armed forces, it does not give the executive total power to determine how to use it.

So. Let's go back to 2002 and work out what happened.

On October 10, 2002, Congress authorised the use of military force against Iraq. H.J. Res 114 gave the president the power to act against Iraq (consult the Wikipedia article for more on this).

In order to attack Iraq, the President needed to gain congressional approval. This was a direct result of the War Powers Resolution which was passed in 1973 and severely restricted the president's powers in war making, requiring congressional support before any major military action.

But what did resolution 114 allow the President to do?

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to -
1. defend the national security of the United States against the continuing threat posed by Iraq, and
2. enforce all relevant United Nations Security Council resolutions regarding Iraq.

It also says that the President should determine that

acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations or people who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.

If you look at the resolution closely, there is nothing specific there which authorises the President to wage war against Iraq. It authorises the use of military action in order to nullify the threat of terrorism and the threat of weapons of mass destruction (implied via the UN resolution stuff), but it says nothing about invading, completely defeating, controlling and occupying Iraq.

While it is obvious that there is that "grey" area between a declaration of war and approving military action, there is no doubt that if congress had made a declaration of war against Iraq, Iraq would be in the exact same position as it is now - defeated, controlled and occupied.

It stands to reason therefore, that if a declaration of war would have added nothing to the current situation, then the current situation demanded a formal declaration of war back in 2003.

Had George W. Bush merely sent in the bombers and blew away suspected terrorist bases and WMD factories (which, of course, did not exist but that's another argument), and then left it at that, then he would have fulfilled the task given to him by Congress in resolution 114.

Somewhere between Resolution 114 and the cessation of hostilities, Bush went beyond the both the words and spirit of the text of the resolution, and the words and intention of the US Constitution. He acted to completely subjugate a sovereign nation - a responsibility and power that was not granted to him by the Constitution.

As I have stated above, this article is not about the merits or morals of the 2003 invasion. It is, instead, an examination of whether the President went beyond the bounds of the US Constitution in his command of the military. Under the constitution, only Congress has the power to mobilise the military under a formal declaration of war. Had this occurred in 2002, then there would be no constitutional problem.

From the One Salient Overlord Department

© 2007 Neil McKenzie Cameron, http://one-salient-oversight.blogspot.com/

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