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Is it true that the recent war conducted by The United States in Iraq was undeclared and illegal? Have there been any rulings by the US courts on this? What are the arguments for and against the legality of the war?

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    I think we need to stick with one war per question :) Additionally, it would help if you cited the resource that suggested the war was illegal, so the merits of that resource can be addressed directly. – Tim Post Dec 6 '12 at 11:02
  • @TimPost I'll try to find the sources, but I can't do it now. In the meantime, please feel free to edit or split the question. – ymar Dec 6 '12 at 11:04
  • I have a suggested edit pending, have a look at it and see what you think. – Tim Post Dec 6 '12 at 11:44
  • It is perhaps important to note that this does not concern international legality of the war, which is perhaps of even greater significance than national (US) law. – Joost Dec 10 '12 at 12:26
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At no point in the Iraq War (or the Korean War, or the Vietnam War) did Congress issue a formal declaration of war. This is not unusual in present times; there have been only five wars (1812, Mexican-American, Spanish-American, WWI, and WWII) in which the U.S. actually did declare war.

Although Congress did not declare war, it did authorize the President to send the U.S. military into Iraq by passing a joint resolution. The idea that Congress can authorize a de facto war without formally declaring one is generally accepted; someone tried to challenge it in Doe v. Bush shortly before the invasion of Iraq, but the courts refused to hear the case. Use of military force without Congressional authorization is a far more contentious issue, but this did not happen during the Iraq War.

This also doesn't get into the question of whether the Iraq War was legal under international law, which is also hotly debated.

  • There is a period of time where the President can authorize troops to deploy without congress declaring war or authorizing it. I don't remember the exact length of time this is allowed though. – mikeazo Dec 6 '12 at 12:11
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    The War Powers Resolution limits military action without Congressional authorization to 60 days plus a withdrawal period. However, the executive branch considers this resolution to be unconstitutional and several Presidents have defied it. As of yet, no court has ruled on its legality. – Taymon Dec 6 '12 at 12:46
  • I do not think your answer is completely correct. In 2002 Iraq was given a deadline to comply or face military consequenses formally by the UN. The UN authorized the action in Iraq and as much as alot of people would like to rewrite history, it was a multi-nation coolition that invaded Iraq. The US military treats the war in Iraq as a war campaign and awards medals that are only available during a time of war. – SoylentGray Dec 12 '12 at 4:55
  • @Chad I didn't say there wasn't a war; the government began referring to it as such not long after the invasion. However, the U.S. Congress never issued a formal declaration of war. As the Korean and Vietnam Wars demonstrate, this is no longer considered necessary for the U.S. to go to war. – Taymon Dec 14 '12 at 21:26
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    @Taymon - That is because the US was not at war with Iraq. The United Nations was. – SoylentGray Dec 14 '12 at 22:17
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Article I, Section 8, of the USA Constitution says Congress shall have the power "To declare War", but the constitution does not specify how it must be "declared". For example, it does not say "By law" as is explicitly mentioned for several of Congress's other powers.

According to Wikipedia, only 5 USA wars have been formally declared by a law that uses "Declaration of War" in the title. The last one was WWII.

However, this is not required, and Congress authorized the Iraq war with Public Law 107-243.

The war authorization was upheld by federal courts with Doe v. Bush, 323 F.3d 133.

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When the Authorization for Use of Military Force Against Iraq Resolution of 2002 was challenged in court, it was determined to be legal. The final resolution came when the case was dismissed in the Court of Appeals for the First Circuit, when the court decided that they cannot intervene:

In this zone of shared congressional and presidential responsibility, courts should intervene only when the dispute is clearly framed. See Nixon, 506 U.S. at 228-29; Baker, 369 U.S. at 217. An extreme case might arise, for example, if Congress gave absolute discretion to the President to start a war at his or her will. Cf. Clinton, 524 U.S. at 423, 425 (describing President's broad explanations for use of cancellation authority). Plaintiffs' objection to the October Resolution does not, of course, involve any such claim. Nor does it involve a situation where the President acts without any apparent congressional authorization, or against congressional opposition.

Internationally, (then) UN Secretary-General Kofi Annan called the war illegal:

When pressed on whether he viewed the invasion of Iraq as illegal, he said: "Yes, if you wish. I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal."

Mr. Annan's opinion is in no way binding to the US, but it has been brought forth as an argument against the legality of the war. That said the UN hasn't (to date) formally challenged the legality of the war, a process that would have to go through its Security Council, to which the US have veto power on.

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    Mr. Annan's opinion is irrelevant to the question at hand, which refers only to US law. – mmyers Dec 6 '12 at 15:26
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    UN Charter is not "law". – user4012 Dec 7 '12 at 1:48
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    @DVK It depends. If validated by the security council, the US would be legally bound by it (international treaties and whatnot). However, the legality of the Iraq War has not (to date) been challenged in the security council, probably because the US have veto power in it. – yannis Dec 7 '12 at 5:48
  • @mmyers Updated the answer to make that clear. – yannis Dec 7 '12 at 5:52
  • @YannisRizos - No it was not challenged because there is political gain in having it as an issue but nothing to be gained by resolving the issue. If there was something significant to be gained by resolving the issue it would be resolved. – SoylentGray Dec 12 '12 at 4:59

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