By Bruce Fein
President-elect Barack Obama should embrace an overlooked riskless exit strategy for the war in Iraq that has inflicted more than the equivalent of another Sept. 11, 2001, on brave American soldiers.
After Inauguration, he should declare the war illegal because it was initiated by President George W. Bush pursuant to an unconstitutional delegation of power by Congress effectuated by the Authorization for the Use of Military Force Against Iraq (AUMFAI). Mr. Obama should announce that all combat operations in Iraq will cease 30 days after Inauguration unless Congress enacts a statute directing him to continue the war.
He can depend on congressional inaction. Members lack both the incentive and political backbone to take responsibility for sending men and women to die on a fool's errand to make Shi'ites, Sunnis, and Kurds democrats after 5,000 consecutive years of despotism and vicious tribal, ethnic or religious enmities.
After Congress balks at President Obama's challenge, all U.S. combat troops in Iraq would return home in an orderly fashion beginning February 2009. President Obama could blame any ensuing Iraqi strife, ethnic cleansing or domination by Iran on Congress for failing to prolong the war.
In any event, if the American military withdrawal aggravated Iraq's current convulsions, the subject would be off the media headlines within six months without American deaths or injuries. That is what happened over Vietnam in comparable circumstances after North Vietnam conquered South Vietnam in April 1975. President Obama's popularity would soar for bringing authentic change in the Constitution's machinery for deciding whether wars are worth fighting.
Ending the American troop presence and terminating the Iraqi war would shave defense spending by more than $10 billion monthly. Those savings should be dedicated to defending Americans in the United States with upgraded intelligence collection, border security and retaliatory capability.
Section 3 of the AUMFAI unconstitutionally delegated to the president unchecked power to decide on warfare against Iraq: "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 regarding Iraq." The Constitution, however, unambiguously fastens on Congress the responsibility for directing the initiation of warfare based on its independent evaluation of alleged foreign dangers.
Every Founding Father agreed that one man or small group of men should never be entrusted with authority to initiate warfare because they would be driven by visions of power and glory into reckless military adventures. Future Justice of the Supreme Court, James Wilson, at the Pennsylvania ratification convention, explained: "This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war."
James Madison, future president of the United States and father of the Constitution, amplified in a letter to Thomas Jefferson: "The Constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature."
War crowns the president with secrecy, the control of information, spending, appointments and the intoxicating opportunity to make history. None of these incentives skews congressional judgments in favor of war.
In Clinton v. New York (1998), the Supreme Court held unconstitutional a congressional delegation of line-item veto authority. That delegation was less damaging to the Constitution's text and purpose than was the congressional delegation of warmaking authority in the AUMFAI to the president. The latter invited an ill-advised war in Iraq that the Constitution's makers intended to avoid by preventing the branch of government most interested in war from holding the power to initiate it.
To justify his invasion of Iraq, President Bush predictably inflated the dangers that Saddam Hussein possessed weapons of mass destruction, was collaborating with al Qaeda, and had miniaturized nuclear weapons for which al Qaeda had promised to serve as human delivery vehicles.
President Obama should embrace the unsurpassed wisdom of the Founding Fathers. As they expressly instructed, the Constitution's task is to secure the blessings of liberty to ourselves and our posterity, not to dispatch the military abroad in search of monsters to destroy, to build an empire or to remake the world in our own image. To achieve that objective, Congress must be forced to assume responsibility for initiating war. The result would be twice-blessed: it would honor the Constitution; and, it would make President Obama the greatest statesman of his era.
Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."