The following speech was given at Highland Park, NJ, by attorney Ben Scotch, on Nov. 6, 2008.
Comments at a Town Hall Meeting
My name is Benson Scotch, and I can't tell you how pleased I am to participate in this Town Hall Meeting about the New Jersey National Guard and the war in Iraq.
A little more than a year ago at the request of Vermont House member Michael Fisher I drafted a bill that was in a sense very radical: It demanded that the United States Government follow the law. At issue was Congress's 2002 Authorization for Use of Force in Iraq (I will refer to it as the AUMF) and how it has been followed-or not followed-in the years since the 2003 invasion and occupation of Iraq.
The case for the Iraq War divided the Congress and the American people, and Congress adopted it, propelled by the momentum of post-9/11 patriotism. Though it should not have adopted any AUMF at all-now clear to a majority of Americans-Congress at least hedged its bets by limiting Authorization to just two purposes: Safeguarding the United States from the threats posed by Iraq and its supposed weapons of mass destruction and "to enforce all relevant United Nations Security Council Resolutions regarding Iraq."
It became clear pretty soon after the invasion that there were no WMDs and that the Saddam Hussein regime posed no threat to the United States, heinous as that regime was. Nor were there any relevant Security Council Resolutions left to be enforced. But it became equally clear that whatever the AUMF said or didn't say posed no barrier to the Administration in pursuing the war.
The text of a law that authorized the most profoundly perilous action a country can undertake was treated as a dead letter, even in the wake of popular disillusionment with this war and a growing sense that the war was sold under false pretenses.
Courts almost always refuse to hear war powers cases on grounds that they would raise political questions not suited for judicial disposition. And when courts say anything at all, they usually conclude that congressional reauthorization of an ongoing war ratifies the conduct of the war and cures any of its existing legal shortcomings.
Congress can authorize a war, but can't, as a practical matter, enforce any conditions it might impose on the conduct of that war. So President Bush can and will continue to ignore the AUMF with impunity, right up to January 20, 2009.
That's where New Jersey comes in. Congress has written a law authorizing a war, and in terms that any ten-year-old could understand, that authorization has expired. The courts have written themselves out of the game, and the states have no enumerated war powers under the Constitution, so there is not much that states can do.
But "not much" is different from "nothing." We believe that a governor, who as commander-in-chief of the state National Guard receives call-up orders from the federal government, should resist a federal order that is not based on a valid congressional enactment, or else is based on a law that is no longer effective, even if it was valid when enacted. That exactly fits the 2002 Iraq AUMF and is very different from questioning a call-up on the basis of location, purpose, type, or schedule of service, which the Supreme Court has said states can't do.
We agree that the circumstances under which any state official decides that a federal law is not valid or is no longer effective and that a federal call-up of National Guard troops is invalid should be narrow. All laws duly passed by Congress are presumed to be valid, and where the use of the military is involved, it is clear that extreme care should be exercised in opposing any National Guard call-up order received from Washington.
That said, SJR 55 and AJR 104 amply meet that cautionary test. Barring an emergency, for example a direct attack on or invasion of the United States, Congress gets to participate with the President on a decision about going to war, either under the War Powers Act of 1973 or via a Declaration of War under Article 1, Section 8 of the Constitution.
War is the most serious, the most irrevocable, and should be the most deliberate action that any government can take. Vietnam brought home the reality that wars of choice should always be the stuff of vigorous and informed debate. True patriotism means insisting that the decision to go to war be shared among the branches of the national government and with the American people and their local and national representatives. There are no moments in America when the Rule of Law is ever set aside, but when war is proposed that is not clearly tied to our national defense, politics do not, and must not, end at the water's edge.
SJR 55 and AJR 104 are based on the proposition that New Jersey and numerous other states proposing similar legislation will have examined the 2002 Authorization for the Use of Force with unprecedented care and will withhold state National Guard from a national call-up only if by clear and convincing evidence it is apparent that adherence to the rule of law requires rejection of a federal call-up order that itself is not based on the rule of law.
These resolutions do not deal with every issue of war and peace, nor are they meant to. The antiwar movement is a choir of different voices, and no one bill, resolution, or campaign preempts any other. But SJR 55 and AJR 104 will continue to play a unique role in this mix. Their message is that the Constitution requires that war powers be shared between the Executive and Legislative branches of government and that any use of force by the President, with narrow exceptions, be authorized by the Congress. The calamity of the continuing war in Iraq is the natural and predictable result of ignoring this mandate.
The arrival of a new administration next January will not end the need to pass this legislation. We hope that President Obama will be the first to acknowledge the validity and importance of Congress's role in questions of peace and war. This multistate initiative will go far to focus attention on the importance of shared war powers, without imposing any ultimatums on our new President. He opposed the Iraq War from the start, and the attention you are giving to the specific and limited purposes of the AUMF should add both legal and policy support to his stated goal of ending the occupation and bringing the troops home.
There has never been a more important time than now to emphasize the rule of law as a moral and practical predicate to the use of military force. Your Borough would serve your state well to boost the prospects of SJR 55 and AJR 104. If New Jersey follows the law, can the rest of the nation be far behind?
