The joint resolution authorizing the use of force in Iraq did so on the basis of two clauses. First the president was given the authority to "defend the national security of the United States against the continuing threat posed by Iraq." Secondly, the president was authorized to "enforce all relevant United Nations Security Council resolutions regarding Iraq."

In Saturday's Washington Post Bruce Ackerman and Oona Hathaway explain how the continued intervention in Iraq can no longer be authorized based on the first clause as

"It makes no sense to say that it [the threat posed by Iraq] continues today, or that our "national security" is "threatened by" the Iraqi government headed by Nouri al-Maliki."

"The most recent U.N. resolution expires on Dec. 31, and the administration has announced that it will not seek one for 2009. Instead, it is now negotiating a bilateral agreement with the Iraqi government to replace the U.N. mandate.

Whatever this agreement contains, it will not fill the legal vacuum. That's because the administration is not planning to submit this new agreement to Congress for its explicit approval. Since the Constitution gives the power to "declare war" to Congress, the president can't ignore the conditions imposed on him in 2002 without returning for a new grant of authority. He cannot substitute the consent of the Iraqi government for the consent of the U.S. Congress."

•  http://www.washingtonpost.com...