Hillary Clinton once again tries to pretend that she was more against the Iraq War than Obama was. It turns out that this is true if you ignore the events of 2002, and those of 2003, and those of 2004 and then misportray the events of 2005.

Bruce Ackerman and Oona Hathaway note that the current legal basis for the U.S. military operation in Iraq is the second prong of the 2002 AUMF which grants the president the authority to use the military to “enforce all relevant United Nations Security Council resolutions regarding Iraq.”

But here’s the rub. 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.

But of course Bush (and John McCain!) want a permanent American military presence in Iraq, but they know congress won’t authorize such a presence. Hence, the only solution available to them is to ignore the law and the constitution and just keep the troops. Ackerman and Hathaway suggest merely continuing the U.N. resolution for another year, which will give the next president a legal basis for doing whatever he’s been granted a mandate to do (since no matter who wins the troops can’t be made to suddenly vanish in a puff of smoke in January). But, obviously, for that to happen the administration would need to concede that it lacks the legal and constitutional authority to ignore congress and they’ll never do that.

It sounds almost absurd to need to point out that “war is usually bad” but in a world where John McCain is taken seriously, more people need to listen to John Quiggin:

Finally reaching a conclusion, the central error in pro-war thinking is the belief that every war has a winner. On the contrary, in war there are far more losers than winners, and in most cases there are no real winners apart from the merchants of death mentioned above. Even those who seem to win have usually sowed the seeds of future disaster. The only sane response to war is to end it as soon as possible.

It’s obviously possible to find a few exceptions to this in history, but they’re really, really rare and as he says “I’m more and more convinced that arguments for war, or about the conduct of war, that rely solely on WWII should come under the same embargo as other arguments that invoke Hitler and Nazism.” WWII aside, the main class of successful wars seems to be things like Gulf War I, where a campaign was undertaken for very limited defensive objectives. Over time, I think the wisdom showed by George H.W. Bush and other coalition leaders at that point when they decided not to press momentary advantage and transform the fighting into a larger war with only illusory gains looks more and more impressive.