Ten Years Later: Was the Iraq War legal?

September 21, 2011

Sept 11 Month PicIt has been ten years since the September 11 terrorist attacks, which prompted broad legal transformation in many areas.  Throughout the month of September, we’ll be looking at some of those areas and their changes.

For the first post on changes to airport security, click here.

For the second post on habeas corpus and Guantanamo Bay, click here.

One of the longest-lasting legacies of the September 11 terror attacks is the 2003 invasion of Iraq.

Prior to the invasion, and continuing even today, there has been a great deal of debate about the wisdom of the action from a policy perspective.

To attorneys, though, policy should be a secondary factor behind legal considerations.

On the legal front, the biggest issue is whether the invasion of Iraq was, in fact, legal.

Domestically, the answer to that question seems to lie with the Authorization for Use of Military Force Against Iraq Resolution, passed by Congress in 2002.

More commonly called the Iraq War resolution, it legally authorized the President to take military action against Iraq.

In justifying the authorization, the resolution cited Saddam Hussein’s Iraq as a national security threat in that Hussein’s regime:

  • had stockpiles of weapons of mass destruction (WMDs), specifically of chemical and biological natures,
  • either had or was very close to developing a nuclear weapons program,
  • was hostile to and willing to attack the U.S. and its allies, and
  • had connections to al-Qaida and other international terrorist organizations, to whom it was willing supply WMDs.

Colin Powell anthraxThese points were heavily stressed by many members of the Bush administration for several months prior to the passage of the resolution, and presented as justification for why military action against Iraq may be necessary (a Legal History post covers this in greater detail).

As may be common knowledge today, though, Hussein’s Iraq had no weapons of mass destruction at the time of the invasion and no connection to al-Qaida.

Does the inaccuracy of these statements as justification for the invasion make it any less legal?

Nope.

Congress could have authorized military action because Hussein didn’t send a thank you card to the U.S. for all of the assistance it provided to Iraq during the Iran-Iraq War, and the invasion would have been just as legal.

In reality, there’s no legal requirement for Congress to provide any justification for authorizing military action (they’re just in there for political reasons).

Actually, Bush could’ve invaded Iraq without congressional authorization, and it probably still would have been legal.

This supposed requirement of the Executive to obtain congressional approval before deploying military forces comes from 1973’s War Powers Resolution, passed in the fallout of the Gulf of Tonkin Incident.

The law requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days without congressional approval.

The War Powers Resolution may very well be unconstitutional, though.

While long treatises have been written on the status of the law’s constitutionality, one major argument for its unconstitutionality is that it’s a violation of the constitutionally-established separation of powers.

Specifically, the law gives Congress veto power over the President’s Article II role as the Commander-in-Chief of the armed forces.

However, the whole point is essentially moot, since the standing requirements to bring a suit to enforce the law are unclear (and may be nonexistent).

That’s just as well, though, since it’s unlikely that any court would ever want to hear such a suit.

Constitutional or not, the War Powers Resolution, intended to strengthen Congress’s authority over military matters, did little to prevent Congress from lining up behind the Bush administration’s military policy in the wake of the September 11 attacks.