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  1. #1
    Join Date
    Jun 2013

    Another Pointless War?

    Another Pointless War?

    As we watch the collapsing government in Baghdad surrounded by a highly disciplined and serious force of Sunni-oriented fighters that has taken control of the most populous third of the country, we must, in John Adams’ words, resist the temptation to slay the world’s monsters.

    This time around, the monsters are the Sunni — who ran the government of Iraq in the Saddam Hussein years and who are the ancient and persistent enemy of the Shia, who run the government today.

    The political and military force that is aiming at Iraq’s capital calls itself the Islamic State of Iraq and Syria (ISIS). Its fighting force consists of about 8,000 men, yet it has marched through Iraq quickly. Last week, as ISIS forces approached the capital, a half-million Iraqi civilians got out of their way and tens of thousands of Iraqi security forces dropped their American military gear and Iraqi military uniforms and fled. The Iraqi army — which the U.S. decimated 10 years ago — cannot defend the current Iraqi government, which is as corrupt, authoritarian, anti-democratic and untrustworthy as Saddam’s was, yet far less competent.

    There is a lesson in this, and it reveals the power of religious fanaticism when resisted by unprincipled political force. ISIS fighters are motivated by a hatred of American invaders and their Iraqi defenders and an embrace of fundamental Sharia principles, which are anathema to Judeo-Christian principles. These ISIS fighters truly are monsters — they have crucified and decapitated deserters, traitors, captives, recalcitrants, Christians and Jews —_ and many Iraqi soldiers would rather join or walk away from them than resist them. The U.S.-trained Iraqi soldiers by and large view themselves as defending a temporary and inconsequential government. The ISIS fighters view themselves as being on a triumphal crusade.

    Complicating this is the affiliation that many of the political forces in ISIS have with the rebels fighting against President Bashar al-Assad of Syria. And adding to the politics-makes-strange-bedfellows aura of this mess is the offer of the Quds fighters from Iran’s Revolutionary Guard — which the State Department considers to be a terrorist organization — to help defend Baghdad, relying on American air power to assist it. It is almost inconceivable that we could fight side-by-side, or bombs protecting boots, with the aspect of the government of Iran that both President George W. Bush and President Barack Obama have characterized as anathema to U.S. interests, and that has sworn to destroy Israel.
    Hence, Obama’s dilemma is daunting. He is on record as saying that the war in Iraq was “dumb”; that the government there is secure and its forces are well-trained; that the rebels fighting Assad are freedom fighters who deserve American military support; and that the American troops he brought home from Iraq are not returning on his watch.

    Should he send troops back to Iraq to defend the government we installed when we toppled Saddam? Should American lives and tax dollars be spent in another pointless effort to bring democracy to a culture that has persistently rejected it? Should we take sides using our military in what is essentially an ancient religious civil war? Is the national security of the U.S. even remotely affected by the outcome of the current Iraqi civil war?

    Since Bush persuaded Congress and the American people in 2003 that an appropriate response to 9/11 somehow was an invasion of Iraq, that country’s stability has been undermined by the U.S., and it is now ripe for the sectarian violence that is devouring it. The stated purpose of the Iraq war was to root out weapons of mass destruction, which we now know did not exist there. Then the stated purpose became regime change, because Saddam tried to kill the elder President Bush. The other stated purpose of the war was our thoughtless embrace of the fanciful Bush doctrine, which was basically the rebranding of the discredited Wilsonian nonsense that we can use force to spread democracy.

    That, too, failed profoundly. In the process, 5,000 Americans died; 45,000 Americans were injured; 650,000 Iraqis died; 2,000,000 Iraqis fled the country; a half-trillion dollars in Iraqi assets were destroyed; and we borrowed a trillion dollars to invade and occupy Iraq (and another trillion to invade and occupy Afghanistan), which we still owe to the people who loaned it to us. Al-Qaida, which was not present in Iraq before 2003, is now openly there along with ISIS, its sister organization that is about to conquer the most politically important parts of the country.
    America is no safer because of the Iraq war, but we are weaker. Our relationships among the people in the Middle East are far less sanguine, we have planted three generations’ worth of hatred, distrust, and lust for vengeance among Middle Eastern youth, and we have a crushing war debt. We also have American cash and military hardware, including expensive and lethal Stinger missiles, now in the hands of ISIS.

    We are witnessing the contemporary incarnation of the old Sunni/Shia/Kurd rivalry that has persisted in what is today called Iraq for 1,000 years, and will persist until the country returns to its pre-modern sectarian borders and each ancient group has its own land.

    There is no bona fide American national security interest in jeopardy because of the persistent Iraqi civil war, and we have no lawful right to choose a side and assist it militarily. But the American military-industrial-neocon complex wants more war. We must resist them. We should gather all Americans in Iraq, take what moveable wealth is ours and come home — and stop searching the world for monsters to destroy, as that will end up destroying us.

  2. #2
    Join Date
    Jun 2013
    The President Does Not Have the Constitutional Power to Order Air Strikes in Iraq

    The answer, in my view, depends on whether the U.S. can be “at war” with a non-state actor such as the Sunni rebel force in Iraq. Here’s my analysis:

    (1) The President has executive power and commander-in-chief power, and thus can direct the military and conduct foreign relations, so long as he does not do anything the Constitution prohibits or exercise a power the Constitution reserves exclusively to another branch.

    (2) The principal limitation on the President’s power, for current purposes, is that the President cannot “declare War” — a power reserved to Congress. (I assume that a strike on rebel military targets authorized — indeed, apparently requested — by the Iraqi government would not violate international law [but see this argument to the contrary] and so I leave aside the question whether the Constitution requires the President to take care that international law is faithfully executed).

    (3) Per my prior writing, I understand “declaring” war to include initiating war through armed attacks. Because armed attacks on a sovereign government initiate a war between that government and the United States, the President must have Congress’ approval before launching such strikes. Thus, in my view, the U.S. action in Libya was unconstitutional and the proposed U.S. action in Syria would have been unconstitutional without Congress’ approval.

    (4) The complication here is that the target is not a sovereign government, and indeed the operation would have the approval of the territorial sovereign. Thus the proposed strikes would not declare war on any sovereign government. The question, therefore, is whether they would declare war on the rebel forces. And that turns on whether it was possible, in the original meaning of “war,” to have a war against a non-state actor.

    (My tentative view is yes — so that the answer is Congress must approve — but I think it is far from clear).

    Related: At Lawfare, Jack Goldsmith reaches a similar conclusion by reasoning that seems misconceived to me:
    The OLC precedents (here is the latest public one) maintain that the President can use force abroad without congressional authorization if the use of force (1) serves sufficiently important national interests, and (2) has a relatively limited scope and duration so as not to constitute “War” that would require congressional approval. The difficult prong to satisfy in Iraq (and Syria) is (1). Traditionally the “national interest” criterion was satisfied if the President was acting to protect U.S. persons and property. Anything that goes beyond that requires special justification, for if the “national interest” is unmoored from protecting U.S. persons and property and interpreted too broadly, there is no effective legal limit on the President’s unilateral power to use of force, since U.S. national interests are so capacious. …

    I simply do not understand where in the Constitution one can find either (a) a requirement that the President act only in support of “important national interests” or (b) a rule that “important national interests” means only “acting to protect U.S. persons and property.” As to the first, I suppose it’s implicit in the President’s office that he act in the U.S. national interest, and as a prudential matter presumably one should not use military force except where the interest is “important,” but the idea that the Constitution imposes some sort of “importan[ce]” requirement seems unmoored to any text. The second claim seems even less based in constitutional text (and I suspect, despite Professor Goldsmith’s suggestion, in history). The power to command the military is not textually limited (apart from the limit on starting wars), so while it might be a good idea to limit the President’s use of the military to protecting U.S. lives and property I don’t see anything that does so.

    Professor Goldsmith says that without his limit, “there is no effective legal limit on the President’s unilateral power to use of force” — but that’s not true: the textual limit is that the President cannot use military force to start a war.

    About the author
    Michael D. Ramsey is Professor of Law and Director of International and Comparative Law Programs at the University of San Diego School of Law, where he teaches and writes in the areas of Constitutional Law, Foreign Relations Law and International Law. He is the author of THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS (Harvard University Press 2007), the co-editor of INTERNATIONAL LAW IN THE U.S. SUPREME COURT: CONTINUITY AND CHANGE (Cambridge University Press 2011), and author or co-author of numerous articles on foreign relations law in publications such as the Yale Law Journal, the University of Chicago Law Review, the Georgetown Law Journal and the American Journal of International Law. n=Feed%3A+tacdailydigest+%28Tenth+Amendment+Center +Daily+Digest%29TwitterGoogle+Pinterest

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