ACLU Says Military Action in Iraq Without Congressional Approval Would Be Unconstitutional

September 13, 2002 12:00 am

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WASHINGTON – While remaining neutral on whether the United States should go to war with Iraq, the American Civil Liberties Union today said that the Bush Administration must — if it wants to remain within the bounds of the Constitution — receive Congressional approval before taking any military action against Saddam Hussein.

“”The decision to go to war should lie with the American people and the American people alone,”” said Timothy Edgar, an ACLU Legislative Counsel. “”We are a democratic republic – the President must seek Congressional approval before moving against Iraq.””

In a letter to Congress today, the ACLU urged the House and Senate to avoid a vague or open-ended war resolution, such as that passed in 1964 after the Gulf of Tonkin incident, and to clearly demarcate what, if anything, Congress intends to authorize. By policy, the ACLU is stridently neutral in questions of military action overseas, but has – from Vietnam to Kosovo – fought to retain legislative oversight over American war-making.

The Administration’s lawyers are gravely mistaken, the ACLU’s letter says, in their assertion of President Bush’s unilateral authority to take preemptive action against Hussein. The letter points out that under the very language of the Constitution, the President has absolutely no authority to initiate a war — absent the immediate and imminent threat of an armed attack on American soil.

The ACLU’s letter also strongly contested White House arguments that both the September 11 congressional resolution authorizing force to combat terrorism and the original declaration of the Gulf War vest sole military authority in the President as regards Iraq. First, the ACLU said, the White House has not put forward clear evidence of Iraqi complicity in last year’s attacks, precluding the use of that congressional resolution to support military action. Second, the original declaration of the Gulf War did not mandate that Iraq comply with weapons inspections or even disarm, conditions imposed after the war had ended.

If Congress supports military action to oust Hussein it must make its support explicit in a new and specific resolution. Otherwise, the ACLU said, it will be, by its silence, countenancing unlawful activity by the Executive Branch.

“”The only way for the United States government to maintain its moral authority is to affirm its subservience to the will of the people as represented in Congress, especially when it does things that cost American lives,”” Edgar said.

An ACLU interested persons memo can be found at:

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