“Is the war in Iraq legal or not?”

Believe it or not, that seems to be a question that has lingered in the minds of many Americans over the last four and a half years. The answer is fairly easy to come across if one has the time to actually find, read, and comprehend public law. For the people who do not want to take the time to discover for themselves the answer about legality and also why we are in Iraq, pay close attention to the information that will follow. The details used in this article are not open to interpretation. They are facts. These facts do not represent right or left, Republican or Democrat, or conjecture and rhetoric.

Before we can investigate the legal justification for war with Iraq, we must first discover why Iraq became a focal point during our current president’s administration. After the terrorist attacks on September 11, 2001 befell us, the reality of the threat we face and are vulnerable to in our modern world was heeded by many of our leaders and citizens. Action was promptly taken to try to eliminate any future possibilities of similar attacks. We invaded Afghanistan to remove the oppressive and terrorist-supporting regime – the Taliban - from power. This was an obvious move, considering their dealings with Osama bin Laden and Al-Qaeda.

At the same time, former United States policies were being re-examined.

The Iraq Liberation Act of 1998 (H.R.4655) was one of the policies of the Clinton Administration and the 105th Congress that received special attention. This bill contained several explicit condemnations of the practices of Saddam Hussein’s regime in Iraq and established “a program to support a transition to democracy in Iraq.” Section 3 of H.R.4655 states the following:

“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.”

Supporting regime change in Iraq was the main purpose of this bill, but in Section 6 it goes on to say:

“…the Congress urges the President to call upon the United Nations to establish an international criminal tribunal for the purpose of indicting, prosecuting, and imprisoning Saddam Hussein and other Iraqi officials who are responsible for crimes against humanity, genocide, and other criminal violations of international law.”

This bill was passed by both Houses of Congress and signed into Public Law by President Clinton on October 31, 1998. On that very same day, Saddam Hussein ended all cooperation with the United Nations Special Commission (UNSCOM), which was responsible for ensuring the Iraqi elimination of weapons of mass destruction and ballistic missile materials and programs. Just over two months prior to signing H.R.4655, President Clinton signed S.J.Res.54, which found the Iraqi Government “in unacceptable and material breach of its international obligations.” With these two bills – H.R.4655 and S.J.Res.54 – along with United Nations Security Council resolutions 678, 687, and 1441, the stage was set for action to be taken by the Bush Administration.

On November 29, 1990, the United Nations adopted Security Council Resolution 678 which (among other things) stated the following:

“The Security Council,

2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area…” (emphasis added)

The deadline was not met by the Iraqi government and coalition forces were used to enforce the requests of the United Nations. On April 3, 1991, the U.N. Security Council adopted Resolution 687 which outlined a long list of measures the Iraqi government was required to comply with according to their registered membership in the United Nations. Resolution 687 also called for the cease-fire of all coalition members. The Security Council, on November 8, 2002, adopted Resolution 1441, which stated the following (emphasis added in bold throughout):

"The Security Council,

Recalling all its previous relevant resolutions, in particular its resolutions 661 (1990) of 6 August 1990, 678 (1990) of 29 November 1990, 686 (1991) of 2 March 1991, 687 (1991) of 3 April 1991...

Recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to Resolution 660 (1990) and to restore international peace and security in the area,

Further recalling that its resolution 687 (1991) imposed obligations on Iraq as a necessary step for achievement of its stated objective of restoring international peace and security in the area,

Deploring the fact that Iraq has not provided an accurate, full, final, and complete disclosure, as required by resolution 687...

Deploring also that the Government of Iraq has failed to comply with its commitments pursuant to resolution 687...

Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein,

Acting under Chapter VII of the Charter of the United Nations,

1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687..."

With these particular statements, the Security Council admits that Iraq is in breach of its specified obligations of 687 and that resolution 687 is a relevant and subsequent resolution to 660. Since Iraq has violated multiple resolutions, the previous Member States’ authorization to uphold “all relevant resolutions subsequent to Resolution 660” by “all necessary means” has been restored. The cease-fire was a provision contingent on Iraq’s cooperation and implementation of 687. Just like any legal contract, once one party is found to be in breach of it, the other party is not legally obligated to maintain their commitment. Here is the definition of "material breach" according to Merriam Webster's Dictionary of Law:

"a breach of contract that is so substantial that it defeats the purpose of the parties in making the contract and gives the nonbreaching party the right to cancel the contract and sue for damages." (emphasis added)

Once Iraq was found to be in material breach of Resolution 687, the cease-fire was essentially nullified.

Any other actions or statements made by the Security Council following the statements above - regarding enforcement of the resolutions - are irrelevant. It has already been clearly stated what actions can be taken and why (Resolution 678), and also what constitutes a legitimate reason for taking further action (upholding “all subsequent and relevant resolutions”). The Security Council’s unwillingness to enforce their resolutions does not mean that United States action - by using military force against Iraq - would be illegal. The language in these resolutions is plain and easily understood.

Since we already had the repeated authority to ensure Iraqi cooperation with United Nations’ demands and it was United States Public Law that regime change in Iraq was a stated national policy, and in light of the fact that our national security had just been egregiously violated in the previous year, President Bush and the 107th Congress decided to enforce international law and implement United States policies against an oppressive dictator who repeatedly flaunted his irreverence to the rest of the international community.

International laws aside, let’s now explore the legality according to the Constitution of the United States of America.

“Article I, Section 8

The Congress shall have Power

11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

18. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.”

These two clauses grant Congress the power to authorize the use of our Armed Forces and to create any necessary laws that describe how this authorization is to be implemented. When the 93rd Congress passed the War Powers Resolution (H.J.Res.542) on November 7, 1973, it was a constitutional act that was entirely acceptable under Article I, Section 8 - Clause 18 of our Constitution. The resolution outlined the authority the Congress is constitutionally obligated to uphold and defined specific circumstances in which our Armed Forces could be used, including an official declaration of war. Among the provisions, the following was stated:

“SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred—
(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution…” (emphasis added)

This authority absolutely does not circumvent constitutional law. It is in fact a power that the Congress is granted under the previously mentioned Clause 18. And just in case one was to misconstrue the meaning of the War Powers Resolution, the Congress clarified their purpose of this bill in the same section as above:

“SEC. 8. (d) Nothing in this joint resolution--
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or
(2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.”

The president still does not have the authority to declare war. Our Congress holds the power to introduce our Armed Forces into conflict and any use of the Armed Forces without their expressed, written authorization (unless the United States is under armed attack) for a period of more than 60 days would violate the conditions of this resolution.

So, what does this have to do with the “illegal war” in Iraq?

On October 11, 2002, the 107th Congress of the United States passed the Authorization for Use of Military Force Against Iraq Resolution of 2002 (H.J.Res.114). In the introduction to this bill, the Congress gave twenty-three specific reasons for authorizing the use of our Armed Forces against Iraq. These reasons included - but were not limited to – the desire to enforce all relevant U.N. resolutions (in which some involved allowing weapons inspectors account for WMD materials and programs), Iraq’s continued aggression towards coalition forces (firing on them “thousands” of times), the Iraqi regime’s “brutal repression of its civilian population”, the assassination attempt on a former United States President, ties to terrorist organizations, and because it is in the best interest of our own national security to ensure “peace and security to the Persian Gulf region”.

The Congress also cited S.J.Res.54 and H.R.4655 – the two aforementioned Public Law bills from the Clinton Administration.

In section 3 of H.J.Res.114, the Congress specifically stated the following:

“(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.”

And in addition (also in section 3):

“(c) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” (emphasis added)

Acting within the scope of the War Powers Resolution of 1973 and under consent of previously enforced United Nations Security Council resolutions, the Congress gave their constitutional authority to use the Armed Forces of the United States against Iraq. On October 16, 2002, the President signed what then became Public Law 107-243, which authorized the use of military force to ensure Iraqi compliance of international laws and treaties, and to enforce United States public laws and policies.

The rest, as they say, is history.

As stated at the beginning of this article, there is no basis for disputing this information. It is factual from top to bottom. There are no misinterpretations or fabrications, and there is no trickery or pretense. The texts of these resolutions and bills are an appropriate utilization of constitutional and international law. A failure to recognize the legality of our involvement in Iraq means one does not have the capacity to comprehend United States laws or international treaties. Being mired in ignorance and misinformation can no longer be an excuse if truth is what one seeks.

The Iraq war was legal, it is legal, and it will continue to be legal unless the Congress changes the law to stop it. When people use rhetoric such as, “Bush’s war”, “the illegal war of aggression”, or “Bush lied, people died”, one will now know that they are either ignorant, stupid, or both, or that it is a disgraceful attempt to gain or regain power or relevance in the political sphere. Most of the condemnation of our President concerning going to war with Iraq - including calls for impeachment, accusations of war crimes, calling his actions unconstitutional and unjustified, and the outright fabrication and leaking of information by congressmen, journalists, and intelligence officials – is based on deliberate lies and propaganda and in some cases may be borderline, or actual treason.

This would be the perfect time – a time when we are at war - to end the senseless ridicule of the Commander-in-Chief of our Armed Forces.

***The argument of the War Powers Resolution in this article was strictly a legal argument for the authority of the President. In no way do I believe that the Resolution properly defines Presidential or Congressional powers. It is bad law, but it is still the law.***

Links used in this article:

The Constitution of the United States of America

War Powers Resolution of 1973

S.J.Res.54

H.R.4655

H.J.Res.114

U.N.-Iraq-Coalition Timeline (1991-2002)

U.N. Resolution 678

U.N. Resolution 687

U.N. Resolution 1441

Related links/background material:

The Federalist Society - "The War Powers Resolution"

Doe v. Bush civil lawsuit and the written opinion of the First Circuit Court of Appeals

"Why We Went to War in Iraq" - http://www.frontpagemag.com/Articles/Read.aspx?GUID={4BE67C8A-101F-4BDB-8BE7-855DBF1AD099}

Reasons for War: Things you might have forgotten about Iraq.

Revisionist History - Antiwar myths about Iraq, debunked

Saddam's al Qaeda Connection

The Deulfer Report

What Tenet Knew, When He Knew It, and Whom He Told

Report In Connection With Presidential Determination