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What Do the Authorizations for Use of Military Force Authorize, Anyway?

By Jack M. Balkin

There has been a great deal of debate, and consternation, in Congress recently concerning the Bush Administration's intention to enter into a a bilateral Status of Forces Agreement (SOFA) with Iraq by the end of July. The Administration has indicated that it does not plan to obtain any congressional authorization or Senate approval for such an agreement. Many legislators believe this would be unconstitutional. So, for example, Senator Clinton has introduced S.2426, which would express the "sense of Congress that any bilateral agreement between the United States and Iraq involving `commitments or risks affecting the nation as a whole', including a status of forces agreement (SOFA), that is not a treaty approved by two-thirds of the Senate under Article II of the Constitution or authorized by legislation does not have the force of law," and that would prohibit the use of funds to carry out such an SOFA that is not such a Senate-approved treaty.

In an eye-opening article the other day, the Washington Post reported that the Bush Administration has now cited Congress's 2002 authorization for use of military force against Iraq as the authority for the President unilaterally entering into such a Status of Forces Agreement.

But, unless I have the wrong document, the State Department letter in question does not argue that the 2002 Iraq AUMF would be authorization for an SOFA. Instead, that letter "merely" discusses the Administration's theory for why it may continue combat operations in Iraq beyond 2008. The question from Representative Ackerman was this:

Does the Administration believe it has the constitutional authority to continue combat operations in Iraq beyond the end of this year absent explicit additional authorization from Congress?

The State Department letter basically answers this question "yes" -- see its reference to the Commander in Chief Clause.

But that question is a bit beside the point, because the State Department letter refers to at least three statutory authorizations, as well: The 2002 Iraq AUMF; the September 18, 2001 authorization for use of military force against those responsible for the 9/11 attacks; and, most importantly, appropriations statutes in which Congress has repeatedly provided funds for the Iraq war.

I think it is a very difficult and interesting question whether the Iraq AUMF continues to authorize the Iraq War. Moreover, I think the Administration's reliance on the 9/11 AUMF as support for the Iraq War is ridiculous -- akin to its reliance on that same AUMF as a basis for disregarding FISA. (The letter refers to President Bush's statement in March 2003 that the military operations in Iraq are "consistent with" with the U.S. and its allies taking action against those responsible for 9/11. And indeed it may be. But as a friend noted, the Iraq War is "consistent with" the Social Security Act, as well -- and with virtually all other extant laws. Hey, it's consistent with the Celtics win over the Pistons the other night, and the results of the Vermont and Ohio primaries . . . and with much else, as well. But the question is not whether the Iraq War is consistent with a law, but instead whether it was authorized by the 2001 AUMF -- and the answer to that question is no, it was not.)

But all of this is somewhat academic, because as long as Congress funds the Iraq War, there will be statutory authority for it, regardless of what the Commander in Chief Clause and/or the Iraq AUMF might authorize.

More to the point, the State Department letter does not say anything, one way or the other, about whether and why the President's Status of Forces Agreement would be lawful.

Full post as published by Balkinization on March 07, 2008 (boomark / email).