President Barack Obama has illegally dispatched 300 military trainers or advisors to Iraq to support an illegal sectarian Shiite government headed by Prime Minister Nouri al-Maliki.

The United States Constitution prohibits the president from re-engaging the United States military in Iraq to counter the Islamic State of Iraq and Syria (ISIS) without new congressional authorization. Further, the struggle for sectarian power there is irrelevant to our national security. Without the justification of self-defense, United States intervention would additionally create a precedent that would invite intervention by Russia or China in their neighboring countries.


The Constitution's architects were unanimous in assigning exclusively to Congress the most significant decisions in the life of a nation, i.e., whether to cross the Rubicon from a state of peace to a state of war, which makes legal what is customarily first-degree murder. All history teaches that the executive authority chronically manufactures or inflates danger to justify gratuitous wars with the goal of aggrandizing power, for example: secrecy, detention without trial, curtailment of civil liberties and the limitless use of lethal force. Accordingly, James Madison, father of the Constitution, wrote to Thomas Jefferson, author of the Declaration of Independence: "The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war and most prone to it. It has accordingly with studied care vested the question of war in the legislature [under Article I, section 8, clause 11]."

The War Powers Resolution of 1973 left undisturbed the Constitution's equilibrium between Congress and the president over war. Section 8 specifically declares that the resolution is not "intended to alter the constitutional authority of Congress or of the president." And section 2 asserts that the president may employ the armed forces only if there is a congressional declaration of war, specific statutory authorization or an actual or imminent attack upon the United States.

The Authorization for Use of Military Force Against Iraq Resolution of 2002 is confined to defending the United States against threats posed by then President Saddam Hussein or to enforcing United Nations Security Council Resolutions. Neither of these conditions is met by ISIS's actions in Iraq.

The 2001 Authorization to Use Military Force is limited to attacks on persons complicit in the 9/11 abominations, all of whom have been either killed or captured. Moreover, ISIS is an enemy of al-Qaida, not an ally, branch or satellite.

Without an authorization to use military force, President Obama lacks authority to re-engage the United States militarily in Iraq unless Congress enacts authorizing legislation.

Congress should not do so. It would make the United States a co-belligerent with the dictatorial, corrupt and sectarian government of Iraq and thus expose us to attack by ISIS. It would also implicate us in Prime Minister Maliki's crimes.

Iraq is an artificial state carved out of the ruins of the Ottoman Empire after World War I. It is destined to splinter into three: a Kurdish state in the north, a Sunni state in the center and a Shiite state in the south. The United States can do nothing to alter this inevitability. A partitioned Iraq, however, will be preoccupied with domestic concerns unthreatening to the United States or Israel.

The pointlessness of a United States military intervention in Iraq would be compounded by the troublesome precedent that could be invoked to crush democracy. A Russian military intervention in Ukraine would be justified in order to restore ousted President Viktor Yanukovich. China could be justified in sending troops to Burma to prevent the ascendancy to the presidency of Nobel Peace Prize laureate Aung San Suu Kyi.

In sum, the optimal (and legal) policy of the United States toward Iraq at present is active watching. Getting involved yet again is illegal and will only make things worse.

Bruce Fein was an associate deputy attorney general under President Ronald Reagan and is the current Chairman of the National Commission on Intelligence and Foreign Wars, and author of "American Empire Before the Fall." His email is bruce@feinpoints.com.

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