Sen. Kennedy’s posting prompted me to go back and look at exactly what George W. Bush was authorized to do. You might be surprised.
Full text of the Authorization to Use Military Force in Iraq is available from several sources, but let’s use The White House's own site.
http://www.whitehouse.gov/...
(Am I the only one having trougle with this new link function all of a sudden?)
Simple statutory construction says it’s time to come home. Remember, there was never a declaration of war made by Congress so the AUMF is our operative law. In pertinent part, the Authorization to Use Military Force in Iraq that Congress passed by resolution says:
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.
It is a maxim of legal analysis that words in laws, regulations, wills, contracts and other documents of legal significance are to be given their plain meaning unless something else is clearly indicated. Let’s break it down: clause 2 does not apply since there are no relevant United Nations Security Council resolutions anymore as far as I know, so let’s apply clause 1 to what I believe Mr. Bush has said is the purpose of his surge escalation: To stabilize Baghdad so that further stabilization and development efforts can take place and Iraq can govern and defend itself. If we copy verbatim the definitions of these common words and apply those that best fit the context (some interpretation required but it’s all reasonable) we see this:
Defend: to ward off attack from; guard against assault or injury (usually fol. by from or against): The sentry defended the gate against sudden attack.
This is the first meaning under dictionary.com and even Mr. Bush would agree it applies.
Security: freedom from danger, risk, etc.; safety.
National security would therefore be the protection of our nation in this manner.
Continuing: to remain in a particular state or capacity: The general agreed to continue in command of the army.
"Continuing" no longer applies; continuity of the Iraq that was and the Iraq that is simply does not exist.
Threat: One that is regarded as a possible danger; a menace.
Here’s where we need some added context. The definitions of "threat" also include words like "constant," "imminent" and "immediate." There are plenty of attenuated threats that we face. Disease is a "threat" to anyone’s continued existence but in the absence of circumstances particularizing any specific disease to any specific individual, there really is not a threat such that remedial action must be taken. We can add Condi Rice’s "mushroom cloud" to confirm that the administration wasn’t talking about the generic threat to U.S. peace and security that, say, Russia might (again) present but about menace that was imminent, immediate and deadly on a large scale.
Posed: To put forward; present: pose a threat.
Well, that one couldn’t be any clearer.
In addition to this, the President must show to Congress that:
acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001.
But this is a further condition to the direct authorization which itself is very, very specific and limited to "defend[ing] the national security of the United States against the continuing threat posed by Iraq."
Under the specter of WMDs, Iraq was regarded as a threat. This was the basis for the resolution and the only possible way Iraq posed a threat to anyone whatsoever. Iraq, however, had no WMDs, so therefore there was no threat to begin with. Had there been any threat whatsoever, even a threat we had not anticipated, it is not "continuing" because the "state or capacity" of Iraq has changed from being a small country with a distressed military force under constant sanction and surveillance to the point where the central government has virtually no authority. It should go without saying, but Iraq does not "pose" a threat, continuing or otherwise, of any kind to anyone, outside of the threat it poses to its own people by failing to protect them primarily from each other.
In other words, George W. Bush’s plan to "surge" ("to increase suddenly") the number of troops to stabilize Baghdad is simply illegal because Iraq no longer poses a continuing threat, not that it ever posed one in the first place. And George Bush’s nation-building in Iraq is not only his greatest flip-flop but unauthorized and therefore illegal. AND in the absence of an additional resolution, our continued presence in Iraq for purposes of stemming sectarian conflict and/or civil war likely violates the AUFM and would require the further authorization of Congress. Even Sen. John Warner talked about doing just that some time before the November 2006 election.
If anyone sees anything that I don’t, I stand open for criticism and correction. Let’s get this one right.