Chapter 12 - Preemptive War
The Timeline
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The key is the timeline leading from the first Gulf War to
the Invasion of Iraq in the second Gulf War. Figure out
what we knew and when, what did Congress approve,
what did they base the approval on, and what powers the
president used.
Look in particular at whether the president already had
arguable authority to go to war left from the UN
Resolutions and Congressional resolutions from the first
Gulf War.
Were we essentially on a war footing with Iraq the whole
time?
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Preemptive War
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What is the theory of preemptive war?
Why was the Iraq war a preemptive war?
What if you are wrong in your assumptions
about the justification for a preemptive war?
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Authorization for Use of Military Force
Against Iraq Resolution of 2002
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Would the October 16, 2002, resolution pass the adlaw
test of setting out intelligible principles to guide the
executive?
 Does it matter whether it does?
 Will a court review it?
How much does the resolution depends on WMDs?
Does being wrong about WMDs make the resolution
invalid as a basis for war?
How did it the affect the 2008 presidential primaries?
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Could Congress Stop the War?
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What did Massachusetts v. Laird, 451 F.2d 26 (1st Cir.
1971), tell us about what Congress would need to do to
present a judicially reviewable issue?
What would it take to get past the appropriations safety
valve for such review?
Practical politics
 Were there ever enough votes in Congress to stop the
war?
 Why is this the only question that really matters?
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Brave New World
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How have things changed with the Obama
presidency?
Is the proper working of the political process, i.e.,
is changing the president the best way to change
war policy?
Can it really change the policy of an ongoing war?
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