Yale law profs Bruce Ackerman and Oona Hathaway had an op-ed in The Washington Post yesterday arguing that the Iraq War will become illegal on January 1, 2009 because the Congressional authorization for the war will expire. Now, of course no U.S. judge is his or her right mind would ever declare the war unlawful, considering the deference due to the political branches in resolving such matters (and especially considering that Congress could the war by simply cutting off funding for it if the body were ever truly intent on doing so). But to the extent that such a label is important politically, its worth breifly examining Ackerman and Hathaway's claim.
The directly relevant portion of the 2003 Congressional resolution authorizing the war says
(a) AUTHORIZATION. 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 Resolutions regarding Iraq.
Ackerman and Hathaway argue that neither of these two conditions will be present after the new year; they contend that Iraq no longer poses a "continuing threat" to the U.S. because the regime of Saddam Hussein has been removed and the last U.N. resolutions authorizing the presence of Coalition forces in the country will expire on Jan. 1, with the U.S. not requesting an extension. They may or may not be right about the expiration of the U.N. mandate (I admit I'm not immediately familiar with the ending dates of the various U.N. resolutions on the subject) but their (quite conclusorily stated) contention that the first condition ceased being applicable when Hussein was overthrown is hogwash. The authorizing language quoted above clearly gives the President virtually plenary power to determine whether the "continuing threat posed by Iraq" still exists and what to do about it. To say that the President would be violating the law by determining that the national security of the United States would be endangered by the fall of the current Iraqi government and its replacement by all-out civil strife (which might well happen if the U.S. were to withdrawal in the near future) is wildly inconsistent with both the text and the spirit of the authorizing resolution.