Bush's Undocumented War Without End Surges Forward

Determining the legality of the war

By Roberto Rodriguez
Published on LatinoLA: September 12, 2007

Bush's Undocumented War Without End Surges Forward

Now that U.S. Attorney General Alberto Gonzales ‘«Ű chief architect of the de-Constitutionalization of the United States ‘«Ű is no longer running legal interference for the White House, perhaps Congress can now get to work. This means making a determination, not whether "the surge" has been successful or whether benchmarks have been met, but rather, whether the war and occupation of Iraq is operating inside or
outside of the law.

In a country that prides itself as a nation of laws, one would think that the first order of business would be to determine the legality of this war. It should be Congress's only order of business. Its task would be simple; compel the administration to cite the legal authority that gives it the right to continue to wage war against a nation that never attacked it or ever posed a threat to the United States. (Presidential candidates should also be asked this same question).

If no legal authority can be cited, then Congress should determine which laws that the United States is in violation of as it continues to wage this war that has produced tens of thousands of Iraqi deaths, nearly 4,000 U.S. deaths, plus the displacement of more than four million Iraqi civilians. It subsequently should determine the appropriate remedy.

It is mind-boggling that this investigation has not commenced, considering that even before the war had begun, UN inspectors had already determined that Iraq did not possess WMDs. This is why most of the world rejected the notion that the war was legal, moral or just. Despite this, Congress ‘«Ű citing "classified intelligence" ‘«Ű went along. By the time the administration officially confirmed the lack of WMDs, the Democrats were being told to quit looking backward‘«™ to move on. And so to this day, Congress has moved on, nowadays investigating everything but the legality of the war.

For those whom are mystified as to why Congress has not made a determination on the legality of the war, the answer is quite simple. Beyond not wanting to remind the nation that Congress has been complicit in this war since its duplicitous beginning, its leaders
perhaps fear its ramifications. For example, despite an electoral rebuff of the administration's war policies in 2006, House Majority Leader Nancy Pelosi unilaterally took impeachment "off the table." While her decision seems inexplicable, that's a different discussion. Impeachment hearings probe administration officials for possible high crimes and misdemeanors. Impeachment does not address the more critical issue regarding the legality of the war.

Without arriving at such a determination, the entire Bush War cabinet could be impeached, yet the war would continue unimpeded and we would all still be arguing about war tactics as opposed to how best to get out. If Congress ruled the war illegal, by law, it would be unable to fund an illegal war and occupation.

Being that Democratic leaders have indicated that it is more important to stop the war than to impeach the president, their actions have been less than impotent. This has permitted the president to remove dissenting generals, replacing them with yes-men, allowing him to continue to press on with his disastrous war. It also permits him to
argue ‘«Ű through an exaggerated fear of terrorism ‘«Ű that he is waging the war as part of the so-called global war on terror. Virtually uncontested by Congress, the President's 2002 Bush Doctrine permits this and future presidents to wage wars without end against any nation or nations or undefined enemies. Beyond the inhumanity of codifying such a "right," such a permanent state of war confers upon a president the "right" to assume never-ending extralegal wartime powers at home and abroad. Under such authority, it's a short step to invoke a state-of-emergency in which the president could suspend the already weakened Constitution and presidential elections.

All this comes back to the question of the illegality of the war. The decision to wage the war had nothing to do with a "worldwide intelligence failure." Further, an illegal war does not become legal as a result of repackaging its rationale, by presenting bogus reports or by changing the meaning of words, e.g., "progress," "stability" and "success." Neither does it become legal because of the passage of time or the timidity of lawmakers. Nor does it become legal or moral as a result of delusionally believing that illegally occupying nations is a God-given American right. Precisely because illegal wars are waged
outside of the law, neither can they be waged intelligently, competently or humanely. (In particular, this war cannot be "won" by U.S. troops, in the same way that foreign troops can not impose democracy on other nations.)

Yet, without Congress making this determination, it will permit the bloodletting to continue unabated and it will allow the president ‘«Ű who has been dead wrong on everything ‘«Ű to dictate the debate, i.e., the surge, etc. Such debates are the epitome of the politics of obfuscation. Yet, on this point, the president is correct; Congress
should cease attempting to micromanage the war. Instead, it should simply rule on its legality.

Making the obvious determination may not lead to holding the president accountable for the underlying illegality of the war, nor would it guarantee impeachment (it wouldn't preclude it either), but it would unquestionably force Congress to end the illegal occupation of Iraq. It's not clear that this is what the Democratically controlled Congress actually wants‘«™

(c) Column of the Americas 2007

About Roberto Rodriguez:
Rodriguez can be reached at

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