Law & Society Blog

Michael Glennon, one of the most thoughtful commentators on the constitutional war powers, highlights the need for Congressional re-authorization of any US military effort in Iraq in this Washington Post op-ed.

Congress in 2002 authorized imperfect war in approving the use of force in Iraq for specific, limited objectives. As those objectives are achieved, or different ones are pursued, legislative reauthorization will be required. Absent congressional approval, the president cannot use force in Iraq to pursue new objectives, beyond the protection of forces being withdrawn. … When President Bush signed the 2002 authorization, he said that “Iraq will either comply with all U.N. resolutions, rid itself of weapons of mass destruction, and end its support for terrorists, or it will be compelled to do so.” Iraq has now done so. Saddam Hussein’s regime is history, and the threat posed by it is gone. Hussein himself has been captured, tried and sentenced. A new constitution has been adopted by the Iraqi people. A different government is in place. That government is in compliance with all relevant Security Council resolutions. It does not possess or seek weapons of mass destruction. It does not support or harbor terrorists. … As a matter of sound policy, as well as constitutional principle, Congress should participate in weighing recommendations on future military action.

Even though I agree with Glennon, I can’t help but notice the slight difference in the highlighted portions. Which of the two is it? Is the president legally required to seek re-authorization? Or should Congress weigh in as a matter of sound policy? Glennon the lawyer would probably say the former. Glennon the realist probably expects the latter.

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