Letter to Congress Urging the Final Resolution for the Authorization of Force Against Iraq Contain Meaningful Standards

Re:      Congress Must Insist that President Bush's Language for an Iraq Resolution be Made Clear for Debate on Iraq to Be Meaningful

Dear Member of Congress:

On behalf of the American Civil Liberties Union and its approximately 300,000 members, we write to urge you to insist that a final resolution authorizing force against Iraq contain meaningful standards that make clear what Congress is authorizing the President to do.  President Bush's proposed draft fails to provide such standards and, if approved, would mark an abdication by Congress of its war powers under the Constitution. 

The ACLU does not take a position as to whether military force should be used against Iraq.  But we have been steadfast in insisting, from Vietnam to Kosovo, that decisions whether to use military force require Congress's consent.  As we explained in our previous letter and attached memorandum,[1] the President's lawyers are mistaken in claiming authority to launch a preemptive strike against Iraq without further action by Congress.  

Unfortunately, the draft resolution the White House submitted to Congress yesterday is written with the same breadth and vagueness that plagued the 1964 Gulf of Tonkin Resolution, Pub. L. No. 88-408.  That resolution was misused by successive Presidents as authority for widening American involvement - without additional Congressional authorization - in a lengthy, unpopular and divisive war.  

The draft resolution shares the flaws of the Gulf of Tonkin resolution in the following respects:

(1)    The draft resolution does not specify against which countries force can be used.  The draft resolution authorizes force not only against Iraq, but throughout the region.  Under its terms, force can be used whenever the President decides it is necessary to ""defend the national security interests of the United States against the threat posed by Iraq"" and to ""restore international peace and security to the region.""  Under the draft resolution, if the President determined an invasion of Iran or Saudi Arabia was necessary to restore peace to the Middle East or deal with the Iraqi threat, he could easily claim he does not need further Congressional approval.   By contrast, the resolution enacted after the September 11, 2001 attacks authorized force only against those nations or organizations deemed responsible for the attacks.  See Pub. L. No. 107-40.  The Gulf of Tonkin resolution did not make clear against whom force was authorized because it authorized force not only to defend against North Vietnam, but to ""prevent further aggression"" for so long as the President determined that ""the peace and security of the area"" had not yet been ""reasonably assured by international conditions.""  This language was used, repeatedly, to expand the war in Southeast Asia beyond Vietnam without Congressional approval - for example, in the decision to invade neighboring Cambodia.

• Recommendation:  Congress should be specific about whom it is authorizing the President to use force against.

(2)    The draft resolution does not specify an objective.  Perhaps one of the most profound lessons of the Vietnam War was that Americans should not be sent to a foreign land to fight and often, to die, where the objectives to be accomplished by use of military force have not been made plain.  The Gulf of Tonkin resolution authorized the President to ""repel any armed attack against the forces of the United States, and to prevent further aggression"" until the ""peace and security of the area is reasonably assured . . . .""  Critical choices about why the United States was fighting were avoided by this language.  By contrast, the Persian Gulf resolution, Pub. L. No. 102-1 (Jan. 14, 1991), clearly outlined, as its objective, the implementation of UN Security Council resolutions requiring the withdrawal of Iraqi forces from Kuwait.  Unlike that resolution, the draft resolution is not limited to specific military objectives, such as (for example) forcing UN inspections, requiring the dismantling of Iraq's weapons of mass destruction, or the overthrow of the government of Saddam Hussein.  Instead, the draft resolution authorizes force whenever the President deems it necessary to  ""defend . . . against the threat posed by Iraq"" and to ""restore international peace and security in the region.""

• Recommendation:  Congress should be specific about the purposes for which it is authorizing force to be used.

(3)    By failing to specify an objective, the draft resolution does not provide any criteria for its expiration.  As there is no specific objective, expiration of the authorization cannot be implied from the achievement of that objective.  Likewise, the Gulf of Tonkin resolution had no meaningful criteria for its expiration, saying only that it would expire when the President determined that ""peace and security"" had been restored.  The draft resolution provides no clear exit strategy so that the American people know when a conflict with Iraq has ended, unlike the 1991 Persian Gulf War authorization, which authorized the use of force to expel Iraqi troops from Kuwait.  The draft leaves open the possibility that a future President will rely on this resolution to start a new war in the Middle East without Congressional approval, much as this President has already (erroneously) asserted authority to attack Iraq today based on the 1991 Persian Gulf War authorization.  

• Recommendation:  Congress should specify an objective which provides clear criteria after which the authorization to use force would expire.  Subsequent military action would require subsequent approval.

(4)    The draft resolution implies unilateral Presidential war-making power.  The draft resolution states that ""the President has authority under the Constitution to use force in order to defend the national security interests of the United States.""  Likewise, the Gulf of Tonkin resolution ""support[ed] the determination of the President, as Commander in Chief, to take all necessary measures,"" implying the use of force was a decision for the President, not Congress.  Since then, however, Congress has rejected this grandiose view of Presidential war-making authority.  Under the War Powers Act, 50 U.S.C. §§ 1541-48, Congress has insisted that it must approve military operations except when a sudden attack requires immediate Executive Branch action to repel the attack.  Congress reaffirmed the War Powers Act in its Persian Gulf resolution of 1991 and in the 2001 authorization of force against those responsible for the September 11 attacks.  Approval of the President's language would be an abdication, not a fulfillment, of one of Congress's highest constitutional duties.

• Recommendation:  Congress should delete those provisions of the draft that imply the President, rather than Congress, may make decisions to use military force whenever he deems it appropriate, and instead add specific references to Congress's prerogatives under the Constitution and the War Powers Act.

The people of the United States have a right, through their elected representatives, to determine whether to go to war.  They do not benefit from that right if their representatives  approve language so broad that it provides no meaningful information about the nature of the military action being authorized.  Whether or not you support the use of force against Iraq, we strongly urge you to speak out and to contact your respective party leaders to ensure that these problems with the President's draft resolution are addressed prior to any vote on such a resolution.

Sincerely,

Laura W. Murphy
Director, Washington National Office

Timothy H. Edgar
ACLU Legislative Counsel

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