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Waging war without Congress nod illegal: New York Bar Association

As the drums of war on Iraq beat faster and louder, and as voices of both the hawks and the liberals become shriller, the New York Bar Association has stated clearly that there is no case for the US president to wage war against Iraq in the current scenario without first being authorized by Congress.

The Committee on International Security Affairs of the Association of the Bar of the City of New York found in a report released late August that the president would be violating the Constitution of the United States if he went to war on his own decision, said Raenu Barod, who chaired the committee.

Barod is a lawyer of Indian origin who grew up in the UK and currently practices commercial litigation and arbitration with the law firm of Barger and Wolen LLP in New York, with a specialization in re-insurance law.

"We started looking at the issue of the soc-called invasion in May," Barod told rediff.com. "There was very little public debate and a case was seen to be made for war. We wanted to provoke a debate about it because the rule of law is the bedrock of civil society."

In a stinging rebuke of President George W Bush's willingness to go it alone if need be, the report, prepared by 11 members, including Barod, categorically states that an "invasion of this nature would constitute a war within the contemplation of the Founders and would thus require prior Congressional authorization."

"We believe that such an invasion solely on the president's orders would deny Congress its Constitutionally-granted powers and could be justified only by an excessively expansive notion of presidential authority, one unsupported by the plain text of the US Constitution."

In its effort to cover all bases, the report addresses the legality of the a presidentially-initiated, large-scale invasion of Iraq in three steps: an examination of the Administration's stated rationale for undertaking a large-scale invasion of Iraq; an analysis of the US Constitution and other relevant law underpinning the respective authority of the Congress and the president to initiate such an invasion; and the conclusion of the Committee, based upon the foregoing analysis, that such an invasion of Iraq requires prior Congressional authorization.

Barod, who was elected chair of the committee in June last year with a three-year tenure, also said that the report was given to choice members of Congress and the Senate. She also clarified that the report did not go into the specifics of the reasons for an invasion, but restricted itself to the legality of one.

"We did not want to go into justifications for or against an invasion, but kept clearly to the legal and constitutional elements, both in text and in spirit, of such an invasion," Barod (31) told rediff.com.

The report also makes it clear that any UN obligations the US may have do not trump any resolutions that Congress may reach. "In any case, the Constitution is the key," Barod said.

What's more, even the Congress resolution of September 18, 2001, authorizing the president to use armed force against those "nations, organizations or persons (he) determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001", requires a connection with 9/11. To date, the report says, the president has not made such a determination.

The committee also makes it clear that the president only has powers to defend the US from any imminent military threat, and says that a war against Iraq "does not appear to the Committee to be the type of emergency defensive actions that is within the exclusive authority of the president to undertake."

Quoting the War Powers Clause, the committee notes that there is no question that the Congress alone has power to declare war, under Article I, Section 8, Clause 11.

Even otherwise, finds the committee, under the War Powers Resolution of 1973, the president must report and regularly consult the Congress after unilaterally deploying troops, and unless the Congress authorizes the action, the president must withdraw armed forces within 60 days of deploying them.

Interestingly, the WPR came about as a response to perceived excesses by presidents Lyndon B Johnson and Richard Nixon in initiating and expanding the war in South-East Asia. The report notes that even president Johnson sought Congressional approval for the Vietnam war, thus affirming the legitimacy of the War Powers clause.

Rebuffing those who support such presidential action in Iraq, said Barod, the committee also found that "no text gives the president the discretion to deploy US forces without Congressional approval in the absence of a sudden danger to national security, not even for the 'moral' reasons or concerns of 'emerging' threats cited by the Administration".

Swift action in defence of the nation and enforcement of legislation are the president's obligation; decision making from reasoned deliberation and determining America's long-term security interests in Congress, the report specifies, while accepting that some may disagree with it.

Especially in cases where there is time to deliberate, says the report, the decision is not the president's to make alone; he must convince Congress not only of the justness of the cause but the legitimacy of the means.

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