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Iraq Unassessed

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Transfer of Power Between Branches of Government

–Powers cannot be transfered between branches of government without a constitutional ammendment. (separation of powers) There was no constitutional ammendment, therefore power was not transfered between branches of government. This resolution pretended to authorize the transfer of power between branches of government (specifically, the power to declare war, from the legislative to executive branch), but did not ammend the constitution. Resolutions that authorize acts that the constitution prohibits are ipso facto unconstitutional and ipso facto invalid. Therefore, this resolution is unconstitutional. This is an important fact, and should be mentioned in the article.

Furthermore, since the resolution was thus invalid, power to declare war was never legally transfered to the president, and thus, technically speaking, war was never declared (at least not under the authority of the United States)! Kevin Baas 20:46, 2004 Jun 18 (UTC)

I don't agree with you. Only US Courts are entitiled to declare US laws unconstitutional. Until now, no one has chanllenged this law before any US courts, therefore this law remains valid until declared unconstitutional by courts.

That's not the way rule of law works. Kevin Baas 16:41, 2005 May 10 (UTC)

That is the way the process of law works. Besides, this joint resolution doesn't "transfer powers" in that sense. It merely authorizes the administration as required by the War Powers Resolution. -- Randy2063 02:37, 8 Jun 2005 (UTC)

There are two separate questions:

• How much fighting can the President do around the world without a good old fashioned formal declaration of war?
• Under what circumstances, does the US have the right to suspend habeus corpus for US citizens within the US, and other controversial things?

My thinking, and I'm certainly no expert, is that:

There is no formal declaration of war in effect. Congress can't delegate war-declaration powers even if it wanted to. Congress doesn't authorize wars, the Constitution does. The Constitution only authorizes war if Congress makes a formal declaration of war. The War Powers Act explicitly refers to the President trying to obtaining a formal declaration of war at some point after the start of hostilities, (among other possibilities), in certain situations. Therefore, even the War Powers Act clearly announces that it doesn't pretend to try to 'delegate' war-declaring powers to anybody. The President may well be able to use force, but he can't call it 'war', at least not in the sense used in the Constitution.

(Apologies, this isn't quite relevant to this article) The right to suspend habeus corpus discussed in Article 1, section 9, only applies in case of rebellion or invasion. I don't see how such an Article is relevant now, unless you count Sep 11 as an 'invasion'. But even then, it could be argued that the invasion is now over. Or even that 'invade' in the sense of invade relevant to this Article only applies to sovereign states invading each other. Anyway, wiretaps seem illegal to me.

I'm not aware of there being any specific rights granted in the Constitution by the existence of a declaration of war (such as a right to suspend habeus corpus). In a sense, it may just be a useless formality, at least in terms of domestic US laws. But see the next point...

Therefore, the only question remaining is whether or not the Iraq hostilities are effectively warlike and require a formal declaration of war.

And another point, surely if the Supreme Court strikes down a law it's saying that it was never valid. Which is more serious than just saying that it is no longer valid. i.e. If the Supremes rule that the Iraq hostilities were a war and required a formal declaration, then the President has been in breach of the Constitution for the last few years. But anyway, the War Powers Act doesn't even purport to delegate war-declaring powers, so it may not even be relevant. Why should Congress authorize non-war force when the President already had that power anyway?

I'm not a lawyer, and I'm not even an American, but I have to laugh at many Americans, who cannot separate the discussion over whether something is legal from the discussion of whether you like it. Next thing you'll be saying that rain in unconstitutional, just because you don't like it. Aaron McDaid 12:22, 26 January 2006 (UTC)

The First Circuit Court of Appeals already ruled stating "...the text of the October Resolution itself spells out justifications for a war and frames itself as an 'authorization' of such a war." it went on to state "The court found that other actions by Congress, such as continued appropriations to fund the war ... provided enough indication of congressional approval." A "declaration of war" is not necessary to fulfill the requirements of the constitution in the eyes of the court, as the constitution "envisages the joint participation of the Congress and the executive in determining the scale and duration of hostilities." and that is what HJ Res 114 goes onto accomplish.

Furthermore they stated:

"The Supreme Court recently and forcefully reiterated that, notwithstanding the Constitution's vesting of "all legislative power" in Congress, enactments which leave discretion to the executive branch are permissible as long as they offer some "intelligible principle" to guide that discretion."

So you see the courts have ruled and further upheld the ruling that there is no illegal transfer of power and that HJ Res 114 accomplishes for all purposes what a "declaration of war" accomplishes "a join participation of congress and the executive". --Zer0faults 20:25, 31 May 2006 (UTC)

The Supreme Court's ruling to uphold the October Resolution on the grounds that a "declaration of war" accomplishes "a join participation of congress and the executive" is fallacious on its merits. The Constitution has no mention of "joint participation" when commiting American Forces to attack another country. Article 1, Section 8 clearly assigns the power to declare war to Congress and Congress alone!

The participation between Congress and the President in the declaration and conduct of war is rather simple: Congress declares war and the President conducts the war as Commander in Chief.

This "intelligible principle" is quite understandable in the context of "American" thought during the Constitutional Congress of 1787.

The American Revolution was a rejection of Monarchy and any notion that one man or small group of men could take the nation to war, undeniably the most grave responsibility of any Government.

The Founders were quite clear that only a body of legislators and exhaustive debate, if necessary, should commit an entire nation to war. The awesome power to go to war was bestowed upon Congress...the balance of powers doctrine then transfered the authority over the United States Armed Forces to the President in time of war.

It is not a coincidence that since the last declaration(s) of war which brought the United States into World War II, each military conflict including and since the Korean "Conflict' has resulted in failure. It is likely that had the Constitutional power to declare war by Congress been adhered to, thus restraining the power of the President to engage the United States Armed forces against another sovereign nation, the United States would have avoided both an unnecessary war and the failure that resulted.

So is the case with George Bush's War in Iraq.

One thing we learn from history is that we seldom learn from history and, therefore, are doomed to relive the consequences.

===============

I've found a source (below) which claims a 'resolution' isn't really a law, its more of a congressional 'poll'. Can any legal scholars shed some light on whether a resolution is really a law?

http://www.truthaboutwar.org/claim3.shtml

Roll Call

Wouldn't it perhaps be less cluttered if we linked to the Roll Call Page for both the Senate and Hosue votes, rather than have massive lists? — Linnwood (☎) 18:10, 9 February 2007 (UTC)

There needs to be a LOT of work done on this. There's really nothing on the resolution itself other than bullet points of rationalizations for war. What about something on the context of when it happened and what about the political consequences of voting for it: particularly anti-war democrats having to justify having voted for the war.

Thoughts on Running Parenthetical Commentary in Outline of Factors used to Justify Authorization of Force

In general I think that over use of parenthetical remarks is bad style. They also present information (or in this case, mostly opinions) with little room for additional information, references, or counter-arguments unless one is willing to seriously clutter up the presentation by making paragraph-length parenthetical comments. More seriously, these particular comments also present a serious case of non-neutral POV. Let's go through them:

1) Iraq's noncompliance with the conditions of the 1991 cease fire, including interference with weapons inspectors. (Despite this statement, and subsequent comments by the Bush administration, at the time weapon inspectors were given access to the alleged weapon factories and it was the invasion of Iraq by the US that forced them out.)

Clearly it does not follow logically that the allowance of the entry of UN weapons inspectors implies compliance with the 1991 cease fire condition or non-interference with weapons inspections - one need only look at the Wikipage on the Iraq disarmament crisis timeline to see the truth of this. The statement of this fact (i.e. the U.S. request that UN inspectors to leave Iraq on the eve of the invasion), without discussing more directly relevant issues of continuing non-compliance of the 1991 cease fire (e.g. a full accounting of Iraq chemical and biological stockpiles and their disposal) and interference with UN disarmament efforts (which were still occurring according to Hans Blix at least until several weeks before the beginning of the invasion) seems like a clear attempt to assert a particular POV.

2) Iraq's alleged weapons of mass destruction, and programs to develop such weapons, posed a "threat to the national security of the United States and international peace and security in the Persian Gulf region." (A statement we now know was not supported by the available evidence.)

Whether or not the evidence available at that time supported this point is a matter of opinion. To assert otherwise is clearly a violation of NPOV. There may be evidence to support this contention (i.e. that evidence at that time was not sufficient), but clearly there is also evidence to support the opposite as well (e.g. see George Tenet's new book "At the Eye of the Storm" and .) NPOV policy states that the article should not promote one view over the other. Arguments from both sides should be given and the reader should be left to decide for themselves. To make the claim that "We know now..." is a obvious violation of NPOV.

See also . Quote from George Tenet: "We provided the best intelligence we knew we had at the time... We didn't make it up. We didn't distort it. We didn't cook the books to help make the case for war. We believed (Iraq) had weapons of mass destruction. We were wrong on that. People believe that we sat back, knew what was gonna go wrong, and didn't tell anybody. Nobody had any wisdom at that point." And also: "We'd been following Iraq and its weapons programs for over 10 years. We told the Clinton administration just about the same thing we told the Bush administration … but, look: This is about human beings making judgments. We had an enormous amount of technical data. It got less and less ... We didn't have enough access on the ground. We stated our beliefs and our judgments. We told people we had high confidence in our judgments. Harry, men and women who followed programs for years honestly said what we believed. We turned out to be wrong. We were not disingenuous. And we certainly didn't want to mislead people."

Clearly some people (George Tenet among them) feel that the evidence available at that time did support the assertion that Iraq had WMDs. The claim that "we know now" that this was not the case is not only factually incorrect but also a violation of the NPOV policy.

3) Iraq's "brutal repression of its civilian population." (Whether this is a casus belli is debatable with the laws of war in mind.)

A rather useless comment since international law is often debatable. I doubt the reader needs to be reminded of this. Clearly this is just a device to promote a particular POV in the article.

4) Iraq's "capability and willingness to use weapons of mass destruction against other nations and its own people" (We now know that the available evidence at the time showed there probably were no WMD's in Iraq.)

Whether evidence at the time supported this point is clearly a matter of opinion. There are arguments on both sides (again see George Tenet's book.) Up until the time of the invasion and before that, during the Clinton administration as well, many U.S. politicians expressed grave concern regarding Iraq's WMDs. Again, use of "we now know" is clear attempt to assert one position over the other without letting the reader decide. Violation of NPOV. FWIW I also recall reading that John Edwards asked Clinton administration officials whether or not what the Bush admin was saying regarding Iraq and WMDs was consistent with what was known during the Clinton admin. The response he got was that these were exactly the same issues regarding Iraq WMDs that they were aware of.

5) Members of al-Qaeda were "known to be in Iraq." (A statement we now know was not supported by the available evidence.)

Clearly there are differing opinions on this matter: "we now know" is a violation of NPOV. For example, from George Tenet's 2007 book: "What was even more worrisome was that by the spring and summer of 2002, more than a dozen al-Qa'ida-affiliated extremists converged on Baghdad, with apparently no harassment on the part of the Iraqi government. They had found a comfortable and secure environment in which they moved people and supplies to support Zarqawi's operations in northeastern Iraq."

Also, another quote from Tenet's book: "The intelligence told us that senior al-Qa'ida leaders and the Iraqis had discussed safe haven in Iraq. Most of the public discussion thus far has focused on Zarqawi's arrival in Baghdad under an assumed name in May of 2002, allegedly to receive medical treatment. Zarqawi, whom we termed a "senior associate and collaborator" of al-Qa'ida at the time, supervised camps in northern Iraq run by Ansar al-Islam (AI). We believed that up to two hundred al-Qa'ida fighters began to relocate there in camps after the Afghan campaign began in the fall of 2001. The camps enhanced Zarqawi's reach beyond the Middle East. One of the camps run by AI, known as Kurmal, engaged in production and training in the use of low-level poisons such as cyanide. We had intelligence telling us that Zarqawi's men had tested these poisons on animals and, in at least one case, on one of their own associates. They laughed about how well it worked. Our efforts to track activities emanating from Kurmal resulted in the arrest of nearly one hundred Zarqawi operatives in Western Europe planning to use poisons in operations."

Some may think the evidence was weak, or today we may say that it was largely wrong. But the contention that "we know now" that this point "was not supported by the available data" at the time is just particular contributor's opinion. And the use of "we know now" is a not-so-subtle attempt on the part of this contributor to elevate his opinion to that of fact - a clear violoation of NPOV policy.

6) Iraq's "continu to aid and harbor other international terrorist organizations," including anti-United States terrorist organizations. (A statement we now know was not supported by the available evidence.)

Wanted terrorist Abu Nidal was living openly in Bagdhad in a villa own by the Iraqi intelligence until August 2002. Saddam Hussein paid money to the families of Palestinian suicide bombers - two clear examples of aiding and harboring international terrorists. Thus this statement is factually incorrect and also non-neutral due to use of "we now know..." Also see George Tenet's book for another view concerning evidence available at that time - quote: "More al-Qa'ida operatives would follow, including Thirwat Shihata and Yussef Dardiri, two Egyptians assessed by a senior al-Qa'ida detainee to be among the Egyptian Islamic Jihad's best operational planners, who arrived by mid-May of 2002. At times we lost track of them, though their associates continued to operate in Baghdad as of October 2002. Their activity in sending recruits to train in Zarqawi's camps was compelling enough."

Note also this quote from a Washington Post article : "Instead, the report said, the CIA had concluded in June 2002 that there were few substantiated contacts between al-Qaeda operatives and Iraqi officials and had said that it lacked evidence of a long-term relationship like the ones Iraq had forged with other terrorist groups." Now, even though it discounts the intelligence on cooperation between al-Qaeda and Iraq, it also affirms that Iraq did indeed have long-term relationships with "other terrorists groups. This is entirely consistent with the point of Iraq "continuing to aid and harbor ***other*** (presumambly non-al Qaeda) international terroist organizations."

7) The efforts by the Congress and the President to fight the 9/11 terrorists and those who aided or harbored them. (We know that the available evidence showed no "working relationship" between Iraq and the people behind 9/11)

See George Tenet's book for another view of evidence available at that time. I quote: "There was more than enough evidence to give us real concern about Iraq and al-Qa'ida; there was plenty of smoke, maybe even some fire: Ansar al-Islam; Zarqawi; Kurmal; the arrests in Europe; the murder of American USAID officer Lawrence Foley, in Amman, at the hands of Zarqawi's associates; and the Egyptian Islamic Jihad operatives in Baghdad." Clearly, there are other views on this matter which are not presented. The use of "We know..." indicates preference for one POV over another which is a violation.

8) Citing the Iraq Liberation Act of 1998, the resolution reiterated that it should be the policy of the United States to remove the Saddam Hussein regime and promote a democratic replacement. (Under international law, this is not a valid casus belli, and as such attacking Iraq would constitute a war of aggression.)

Well, this is just illogical since the Iraq Liberation Act of 1998 was not the only factor used to justify use of force. Clearly the setting up of this hypothetical scenario is just a straw man used to promote a particular POV. I have fixed the faulty logic in this particular comment and made it point of view neutral. Hopefully, this example will help the contributor to see how he may fix his other errors and violations of NPOV policy.

Well, apparently the contributor reverted back to his older version of this particular parenthetical remark. The remark contains a false or at least logically irrelevant implication (depending on whether or not you are in agreement with the conclusion.) Since this adds nothing to the presentation, I suspect this is once again simply a device for promoting his own POV. Whatever. He has an agenda to promote but seems incapable of seeing that he is actually hurting his position by introducing an obvious non-neutral POV into the article. I am beginning to suspect he may be a GOP plant sent here by Karl Rove. ;-)

In any case, I am including the NPOV and Disupte tags on the top of the page for the reasons outlined above.— Preceding unsigned comment added by 76.221.135.126 (talk • contribs)

Removed the tags since the statements are sourced in the criticism paragraph.

• ad 1 The contention inspectors were not allowed is a falsehoood. Whether they had unrestricted access is another matter and certainly not a casus belli under the laws of war, i.e. the US circumvented the UN and as such is guilty of a war of aggression unless SH attacked the US.
• ad 2 Most, if not all intelligence agencies in the world doubted this. Clearly if there is serious doubt it cannot be asserted as a casus belli. Also the fact we have still not found these magical WMD's seems to prove the calim was an inflated smokescreen.
• ad 3 Debatable is a diplomatic way of saying it is illegal. See war of aggression and jus ad bellum.
• ad 4 Again there were grave doubts making such a statement unsupported by the facts.
• ad 5 Not a casus belli, especially since SH had nothing to do with it and it happened all outside of his control. The same logic means Bush is responsible since 19 members of AQ were present in the US on 9-11. So, not accurate and misrepresents the actual events.
• ad 6 If every cent or cup of coffee by underlings constitutes "continu to aid and harbor other international terrorist organizations," we soon can invade half the world. Heck the IRA had major sponsors in the US, who wined and dined them, and would not have survived without it. To claim that is a casus belli is not compatable with international law or even the laws of logic.
• ad 7 See criticism section for the latest (report in 2007) on this. There was no working releationship between AQ and SH.

This sufficiently addresses the points raised. Thank you. Nomen Nescio 08:58, 22 June 2007 (UTC)

I put the tags back up....the "We now know" is clearly POV....even a blind man could tell that.

The "we now Know stuff might belong in the criticism area but not as a listing oif what the Bill said....its confusing and not 100% true. It also shouldnt be edited by someone who thinks this"This user believes that George W. Bush's edits to the constitution and his attempts to abolish the rule of law need to be reverted." Clearly Nescio is unable to be NPOV on this subject and I will re-do any of his POV edits.I also added "This article has been nominated to be checked for its neutrality." because it is and must be. and since this was written "Removed the tags since the statements are sourced in the criticism paragraph." he must know the "we now know" belongs in the criticim paragraph and not where it is. GATXER 12:09, 23 June 2007 (UTC)

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