the Iraq War Resolution WAS a vote for war....

mike_c

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Fri Mar-24-06 11:44 PM
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the Iraq War Resolution WAS a vote for war....

Edited on Sat Mar-25-06 12:39 AM by mike_c

The number of folks still holding out for the view that congress men and women who voted for the Iraq War Resolution "weren't voting for war" is rather shocking. Reading those comments, it occurs to me that even three years later many DUers are not really familiar with the IWR or what authority it explicitly granted Bush. Let's take a few moments and review the IWR. It is reprinted in its entirety below-- don't worry, it's short-- with comments interspersed. I'm going to post this to my journal so that it will be accessible later.

Let me first remind you that under the War Powers Resolution of 1973 the congressional "authority to use force" is an explicit substitute for a Declaration of War, giving the president sole authority to go to war. That's really the crux of the matter, since the IWR is just such an "authorization to use force." Some have argued that this abdication of congressional responsibility is unconstitutional, but every Executive since Nixon has argued that it isn't, and the Supreme Court has never ruled on the matter-- nor has the law been challenged, so that argument is not particularly relevant.

Now on to the IWR:

107th CONGRESS
2d Session
H. J. RES. 114
October 10, 2002

JOINT RESOLUTION
To authorize the use of United States Armed Forces against Iraq.

Whereas in 1990 in response to Iraq's war of aggression against and illegal occupation of Kuwait, the United States forged a coalition of nations to liberate Kuwait and its people in order to defend the national security of the United States and enforce United Nations Security Council resolutions relating to Iraq;

Whereas after the liberation of Kuwait in 1991, Iraq entered into a United Nations sponsored cease-fire agreement pursuant to which Iraq unequivocally agreed, among other things, to eliminate its nuclear, biological, and chemical weapons programs and the means to deliver and develop them, and to end its support for international terrorism;

Whereas the efforts of international weapons inspectors, United States intelligence agencies, and Iraqi defectors led to the discovery that Iraq had large stockpiles of chemical weapons and a large scale biological weapons program, and that Iraq had an advanced nuclear weapons development program that was much closer to producing a nuclear weapon than intelligence reporting had previously indicated;

Whereas Iraq, in direct and flagrant violation of the cease-fire, attempted to thwart the efforts of weapons inspectors to identify and destroy Iraq's weapons of mass destruction stockpiles and development capabilities, which finally resulted in the withdrawal of inspectors from Iraq on October 31, 1998;

Whereas in Public Law 105-235 (August 14, 1998), Congress concluded that Iraq's continuing weapons of mass destruction programs threatened vital United States interests and international peace and security, declared Iraq to be in `material and unacceptable breach of its international obligations' and urged the President `to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations';

Whereas Iraq both poses a continuing threat to the national security of the United States and international peace and security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations by, among other things, continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations; Whereas Iraq persists in violating resolution of the United Nations Security Council by continuing to engage in brutal repression of its civilian population thereby threatening international peace and security in the region, by refusing to release, repatriate, or account for non-Iraqi citizens wrongfully detained by Iraq, including an American serviceman, and by failing to return property wrongfully seized by Iraq from Kuwait;

Whereas the current Iraqi regime has demonstrated its capability and willingness to use weapons of mass destruction against other nations and its own people; Whereas the current Iraqi regime has demonstrated its continuing hostility toward, and willingness to attack, the United States, including by attempting in 1993 to assassinate former President Bush and by firing on many thousands of occasions on United States and Coalition Armed Forces engaged in enforcing the resolutions of the United Nations Security Council;

Whereas members of al Qaeda, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq; Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of United States citizens;

Whereas the attacks on the United States of September 11, 2001, underscored the gravity of the threat posed by the acquisition of weapons of mass destruction by international terrorist organizations;

Whereas Iraq's demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to the United States and its citizens from such an attack, combine to justify action by the United States to defend itself;

Whereas United Nations Security Council Resolution 678 (1990) authorizes the use of all necessary means to enforce United Nations Security Council Resolution 660 (1990) and subsequent relevant resolutions and to compel Iraq to cease certain activities that threaten international peace and security, including the development of weapons of mass destruction and refusal or obstruction of United Nations weapons inspections in violation of United Nations Security Council Resolution 687 (1991), repression of its civilian population in violation of United Nations Security Council Resolution 688 (1991), and threatening its neighbors or United Nations operations in Iraq in violation of United Nations Security Council Resolution 949 (1994);

Whereas in the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1), Congress has authorized the President `to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolution 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677';

Whereas in December 1991, Congress expressed its sense that it `supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 687 as being consistent with the Authorization of Use of Military Force Against Iraq Resolution (Public Law 102-1),' that Iraq's repression of its civilian population violates United Nations Security Council Resolution 688 and `constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region,' and that Congress, `supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 688';

Whereas the Iraq Liberation Act of 1998 (Public Law 105-338) expressed the sense of Congress that it should be the policy of the United States to support efforts to remove from power the current Iraqi regime and promote the emergence of a democratic government to replace that regime;

Whereas on September 12, 2002, President Bush committed the United States to `work with the United Nations Security Council to meet our common challenge' posed by Iraq and to `work for the necessary resolutions,' while also making clear that `the Security Council resolutions will be enforced, and the just demands of peace and security will be met, or action will be unavoidable'; Whereas the United States is determined to prosecute the war on terrorism and Iraq's ongoing support for international terrorist groups combined with its development of weapons of mass destruction in direct violation of its obligations under the 1991 cease-fire and other United Nations Security Council resolutions make clear that it is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced, including through the use of force if necessary;

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Military Force (Public Law 107-40); and

Whereas it is in the national security interests of the United States to restore international peace and security to the Persian Gulf region: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

This first part is noteworthy for at least two reasons. First, it lays out the rationale underlying the resolution itself and for the actions that will be called for in the next section. It expresses Congress' agreement that Iraq possessed a stockpile of WMDs and an active WMD research and development program (including "an advanced nuclear weapons development program"), that Iraq was responsible for the withdrawal of UNSCOM inspectors in 1998, that Iraq was an immediate threat to the United States, that Iraq was associated with al-Qaeda, that the U.S. had done everything necessary to achieve a diplomatic settlement and that no further diplomatic actions were warranted, and that Iraq was involved in the 9/11 attacks. Every congress man and woman who voted for the IWR tacitly accepted those statements as true-- their vote was an affirmation of that acceptance. Those statements are the logical foundations for the remainder of the resolution.

The second noteworthy thing about that first part is that it requires no further action from the president or anyone else. It is simply a statement of congressional acceptance of the circumstances it enumerates. Nowhere does it call on the executive to provide any evidence of these circumstances-- just the opposite, it says "we already believe these things to be true enough to serve as the foundation for giving the president war powers under the WPR of 1973."

The second part of the IWR is the actual congressional brief to the president, including the all important authority for the use of force. Remember, under the WPR of 1973 this is tantamount to a declaration of war-- it carries exactly the same authority to make war, and explicitly conveys that authority to the president. Many Americans don't realize this, but only the most woefully ignorant congress man or woman with the most incompetent staff would be unaware of the gravity of such an authorization. Here we go:

SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force Against Iraq Resolution of 2002'.

This requires no further comment. Section 1 is simply the title of the Act.

SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS. The Congress of the United States supports the efforts by the President to--
(1) strictly enforce through the United Nations Security Council all relevant Security Council resolutions regarding Iraq and encourages him in those efforts; and
(2) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq.

Section 2 is often interpreted as a requirement for further diplomacy instead of invasion, but read it again carefully. All Section 2 does is thank the president for having done so in the past. It expresses congressional support for his efforts, but does not call on him to perform anything further. Not one thing. It does not say "the President shall..." or "in the event of the failure of negotiations such and such...." There are no conditional statements at all. None. No further action is required by Section 2. This is critical, because if any action were required the IWR would not be an unconditional congressional authorization to use force under the WPR, as referenced further in Section 3 below. Bush would likely have had to go back to Congress for that authorization if conditions had been attached to the IWR, but none were, so the point is moot.

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(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.
(b) PRESIDENTIAL DETERMINATION- In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that--
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and
(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.
(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.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.

Section 3 is the meat of the resolution, and ultimately the only part that really counts for anything.

First, it explicitly gives the president authority to use force under the WPR of 1973. With that authority Bush obtained sole and complete discretion regarding when and if to invade. More to the point, that authorization was an explicit substitute for a declaration of war. Section 3(a)(1-2) is in fact an authorization for war, and every member of congress knew it. If you doubt this, read the War Powers Resolution of 1973, or even just a summary of it. Wikipedia has a good one.

Section 3(b) is the only section in the IWR that explicitly requires anything from the president. It requires that he notify congress of his determination within 48 hours of invading Iraq. It specifically does not require him to prove anything, or do anything other than notify Congress of the invasion in writing. It even tells him what to say in his letter of notification, and requires only that "he determine" such an invasion to be necessary. In fact, when Bush notified Congress shortly after U.S. troops invaded Iraq, he simply quoted Section 3(b)(1-2). That's all Section 3 required of him.

Section 3(c) is boilerplate that states explicitly that the IWR was meant by Congress to meet the statutory requirements of an authorization to use force under the War Powers Resolution of 1973. This should remove any lingering doubts about whether members of congress-- including democratic members-- knew they were voting whether or not to go to war. As we've already discussed, such an authorization is the literal equivalent to a congressional declaration of war.

Finally:

SEC. 4. REPORTS TO CONGRESS. (a) REPORTS- The President shall, at least once every 60 days, submit to the Congress a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted in section 3 and the status of planning for efforts that are expected to be required after such actions are completed, including those actions described in section 7 of the Iraq Liberation Act of 1998 (Public Law 105-338).
(b) SINGLE CONSOLIDATED REPORT- To the extent that the submission of any report described in subsection (a) coincides with the submission of any other report on matters relevant to this joint resolution otherwise required to be submitted to Congress pursuant to the reporting requirements of the War Powers Resolution (Public Law 93-148), all such reports may be submitted as a single consolidated report to the Congress.
(c) RULE OF CONSTRUCTION- To the extent that the information required by section 3 of the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) is included in the report required by this section, such report shall be considered as meeting the requirements of section 3 of such resolution.

Section 4 is the only other section that requires anything of Bush, but it gives him an out. Sec. 4(a) requires periodic reports to Congress on the progress of the war. This would normally give Congress an opportunity to pursue questions and oversight, but Sec. 4(b) permits the Executive (with whom war power is now vested) to skip the periodic reports and submit a single consolidated report. Unfortunately, it does not specify WHEN such a report is due. Presumably, whomever is president at the end of the war against Iraq will be called upon to submit a report on the outcome of the war, but that's ALL Sec. 4 ends up requiring.

So to summarize, the IWR first expresses Congress' full and unreserved agreement with the entire boat-load of lies the administration floated about Iraq, then it conveys congressional authority to use force against Iraq pursuant with the War Powers Resolution, an authority that was the functional equivalent of a full declaration of war. Finally, it places absolutely no conditions upon that authorization other than a letter of notification within 48 hours of invading, and even states that the letter need only say that Bush has determined an invasion to be necessary.

This isn't the USA PATRIOT Act or the budget resolution. It isn't long and unreadable. It is brutally brief actually-- only Section 3 really means anything. The rest is boilerplate. I hope it's clear to everyone now that a vote for this resolution was an explicit vote for a war against Iraq. Under the War Powers Resolution it could not have been anything else.