The Iraq War . . . legal or not?

A coworker and I had an interesting discussion today on Operation Iraqi Freedom. I believe the Iraq War is justified – my coworker believes the opposite. This argument isn’t likely to be “won” by either side as we obviously do not agree on what provocations/actions justify any military action.

Saddam’s past actions (WMD use and programs, refusal of inspections followed by expulsion of inspectors, mass murders, military invasions of Kuwait and Iran, etc.) and ongoing actions (firing on allied aircraft in no-fly zones, support for terrorism by harboring known terrorists and payments to families of palestinian suicide bombers, continued obstruction of UN inspections, continued civilian murders, etc.) were more than enough to warrant his removal from power. Saddam’s potential for causing more and larger problems in the region and elsewhere was unmatched. Thank God the Israelis took out his nuke plants back in 1981 or the Gulf War in 1991 could have been the world’s second nuclear war. Don’t for a second think that Saddam would have had any qualms about firing a nuclear scud at Israel, Saudi Arabia, or Kuwait if he had the resources. Whatever your thoughts on the Gulf War or the Iraq War, we are all much better off without that megalomaniac alive and in charge of any military assets and huge oil reserves.

***** Your agreement with the above statements is not required for the rest of this post . . . so read on. *****

Interestingly, today’s discussion morphed into a discussion on what actions are required by the President and Congress to constitute a “legal” or Constitutionally supported war. Note: I will not claim to be anything more than an occasional reader of Constitutional law issues. That said, here’s my take:

The President can authorize military action as Commander in Chief. Congress retains the Constitutional power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water” (Article I, Sec 8, Clause 11). There . . . clear as mud!

Some critical historical points to understand:

1. Congress has declared war only 5 times – with one being after all-out military hostilities were already underway. The last war declaration was issued for World War II.

2. Every major military operation (Just Cause / Panama probably being the smallest) has been approved by Congress. Are you listening? This includes both Afghanistan and the Iraq War.

So . . . if you believe that military action requires a formal declaration of war by the Congress to be legal, the majority of all US military operations have been “illegal”. However, if you actually read the part of our Constitution that covers this, you’ll see that there are other methods for Congress to approve of a military action or war without a declaration of war.

So what the heck are “Letters of Marque and Reprisal” anyway? Letters of Marque and Reprisal are Congressional mandates to allow military / paramilitary operations against other powers (rogue foreign military units, privateers, pirates . . . terrorists?) without necessarily declaring war on a nation’s government.

Okay, we should all be thoroughly confused now. Don’t worry, so are the Constitutional law “experts”. Without all the degrees and pedigrees I can sum it all up . . . maybe.

It boils down to this:

1. Congress gave its approval for action against Saddam’s Iraq in 1998. The Iraq Liberation Act, signed into law by President Clinton, stated “It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.” Clinton used this act as a green light for the Operation Desert Fox 4-day Iraq bombing campaign in December 1998. Obviously Saddam didn’t abdicate his throne in terror and none of those bombs killed him (though we hit at least one of his many palaces) – so our problem remained.

2. Congress approved of military action against Saddam’s Iraq again in October 2002. The “Authorization for Use of Military Force Against Iraq Resolution of 2002″ (which referred back to the Iraq Liberation Act) authorized the United States to “use military force to “defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq.”

Symantics game aside, Congress gave approval to Presidents Clinton and G.W.Bush to get rid of Saddam and his regime. The Constitutional law gurus of the future will have to determine if Congress used the correct symantics in doing so.