Iraq: Let History Judge

January 7, 2009
  As Iraq and the United States looked ahead to a new era of bilateral relations this week with the inauguration of the new U.S. embassy in Baghdad, it was history, not the future, that seemed to dominate the minds of Iraqi and U.S. officials.

    It was a beautiful, sunny winter day in the Iraqi capital when dignitaries from the Iraqi government mingled with American officers and diplomats outside the embassy, a sprawling collection of boxy, coral-coloured buildings by the Tigris.

    The flag-raising over the hyper-secure embassy, the largest in the world, was one of the last Iraq milestones the Bush administration, leaving office this month, presided over nearly six years after it led the invasion to oust Saddam Hussein.

    As such, the question of Bush’s legacy loomed large.

    U.S. Ambassador Ryan Crocker, who is expected to resign himself after stepping down in Baghdad, chronicled the history of U.S.-Iraqi relations for the assembled crowd, starting with the arrival of the first U.S. consul — by caravan! — in 1889.

    “We’ve had many important moments throughout that history, for better or for worse. No period has been more intense, more challenging and more promising than that since April 2003,” Crocker said.

    Some of the highlights mentioned by Crocker and U.S. Deputy Secretary of State John Negroponte, the first U.S. ambassador to post-Saddam Iraq, were a 1938 treaty of commerce and navigation and the establishment of bilateral diplomatic relations in 1931.

    They also paid tribute to the handover to Iraq just a week ago of control of the Green Zone, the fortified swathe of Baghdad that has been the seat of U.S. power here since 2003.

    “We have a duty to honour this legacy,” Negroponte said.

    Iraqi President Jalal Talabani, the aging Kurdish leader who worked with Saddam against Kurdish rivals and came to lead Iraq after Saddam’s ouster, may have had his own legacy in mind as he sought to put a bright face on the U.S. project in Iraq.

    “Allow me to express our firm belief that America’s history will have a most favourable view of the liberation of Iraq and the creation of a democratic, federal and independent Iraq, which will serve as a model for other peoples,” he said.

    It is also election season in Iraq, which holds provincial polls on Jan. 31, to be followed by parliamentary elections in December.

    Talabani praised the “courageous and historic” decision by President George W. Bush to invade Iraq in 2003.

    After the ceremony, some guests forwent canapes and coffee and trickled into an exhibit showing copies of old photographs and documents from the two country’s history.

    But many Iraqis will have a different take on history.

    Tens of thousands of Iraqis have died — at least 90,000 by one conservative estimate — in the bloodshed unleashed by the 2003 invasion. Violence is far below what it was, but innocent people still die every day.

    They might suggest a few additions to such an historical survey, like the handshake between Saddam Hussein and Donald Rumsfeld, Bush’s former defence secretary, in 1983 when Washington supported Iraq in its war with arch-foe Iran.

    Or the first Bush administration’s role in encouraging Iraqi Shi’ites to rise up after the Gulf War of 1991 — an episode which ended in Saddam’s mass slaughter of Iraqi civilians.

    Or Washington’s economic support for Iraq in an era when Saddam used chemical weapons against Kurds in the late 1980s.

    Even today, Iraq is an unstable place, where politics is a contact sport and the prospect of violence lurks below the surface.

    If it is to the victors that falls the task of writing history, who will do so for Iraq?

 

 

2 comments

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Missy Ryan,

I think you worry about a budding, strong, and free Iraq growing from the soil of Saddam’s tyrrany. I also think you are both excited for the Iraqi people but feel deep shame that if you had it your way, they would still be living in a police state. The deaths sadden me, too. But, that’s all on Saddam.

Posted by Rupert | Report as abusive

The Iraq War Is Now Illegal

By Bruce Ackerman and Oona Hathaway, The Daily Beast. Posted January 3, 2009.

The Bush administration’s infatuation with presidential power has finally pushed the country over a constitutional precipice. As of New Year’s Day, ongoing combat in Iraq is illegal under US law.

In authorizing an invasion in 2002, Congress did not give President Bush a blank check. It explicitly limited the use of force to two purposes: to “defend the national security of the US from the threat posed by Iraq” and “enforce all relevant UN Security Council resolutions.”

Five years after the fall of Saddam Hussein, the government of Iraq no longer poses a threat. Our continuing intervention has been based on the second clause of Congress’ grant of war-making power. Coalition troops have been acting under a series of Security Council resolutions authorizing the continuing occupation of Iraq. But this year, Bush allowed the UN mandate to expire on December 31 without requesting a renewal. At precisely one second after midnight, Congress’ authorization of the war expired along with this mandate.

Bush is trying to fill the legal vacuum with the new Status of Forces Agreement (SOFA) he signed with the Iraqis. But the president’s agreement is unconstitutional, since it lacks the approval of Congress. Bush even refused to allow Congress access to the terms of the deal. By contrast, Prime Minister al-Maliki followed his constitution and submitted the agreement for parliamentary approval. While the Iraqi parliament debated its terms, leading members of Congress were obliged to obtain unofficial English translations of texts published by the Arab press.

Bush defends his extraordinary conduct by claiming that it is traditional for commanders in chief to negotiate status of forces agreements without congressional consent. But the Iraqi agreement goes far beyond anything in the traditional SOFAs concluded with close to 100 countries since World War II.

Indeed, it goes far beyond any sensible interpretation of the president’s power as commander in chief. For example, the SOFA creates a joint US-Iraq committee and gives it, not the president, broad control over the use of American combat troops. It thereby asserts the authority to restrict President Obama’s powers as commander in chief throughout most of his first term in office. But under the Constitution, no president can unilaterally limit his successor’s authority over the military.

This defective agreement cannot serve as a valid substitute for the congressional authorization that Bush so casually allowed to expire on December 31. It is up to Congress to authorize continuing military action. Gaining the consent of a foreign power simply isn’t enough.

The question is how Obama should respond to the legal catastrophe that Bush has left as his Iraqi legacy. It’s easy to eliminate one option. Whatever the original infirmities of Bush’s agreement, Obama should not repudiate it. Now that Maliki has won approval from his parliament, the agreement has become the basis for the next phase of Iraqi politics. It also contains withdrawal timetables that are compatible with Obama’s goals: all combat troops out of Iraq’s cities by July; all troops out of Iraq by the end of 2011. As a consequence, Obama may be tempted to accept the agreement that Bush has left behind, and proceed without correcting its obvious constitutional deficiencies.

But this would be a tragic mistake. We are living in an age of small wars—some are blunders, but some will be necessary. The challenge is to sustain their democratic legitimacy by keeping them under congressional control. If Obama goes along with the Bush agreement, he will make this impossible. Future presidents will cite the Iraqi accord as a precedent whenever they choose to convert Congress’ authorization of a limited war into an open-ended conflict.

There is a better way ahead. President Obama should submit the Bush-Maliki agreement to Congress on January 20 and urge its speedy approval. This request is likely to win broad bipartisan support. Rapid congressional ratification will not only fill the legal vacuum threatening the constitutional integrity of our military operations in Iraq. Together with the closing of Guantanamo, it will show that Obama is serious about reining in the worst presidentialist abuses of the Bush years.

Members of the incoming administration have already taken steps in the right direction. Both Secretary of State-designate Hillary Clinton and Vice President-elect Joseph Biden took the lead as senators in protesting Bush’s unilateralism in the conduct of the Iraqi negotiations. And Obama has made clear that he appreciates the role of checks and balances in our constitutional scheme. Now is the time to reverse the precipitous slide toward the imperial presidency.

Bruce Ackerman and Oona Hathaway are professors of law at Yale and the University of California Berkeley, respectively.

Posted by Jack Boston USA | Report as abusive