On January 1, will the U.S. occupation of Iraq become illegal? And if so, would it matter? Finally, is there anything Bush can do to stop it?

The answers, I believe, are Yes, Yes, and No.

If I'm right, Bush would have no choice but to remove all U.S. troops (and contractors) from Iraq to keep them from ending up in Iraqi prisons.

Of course I'm not a lawyer, so I encourage lawyers to review my analysis and find the flaws. But if I'm right, then anti-war Democrats in Congress should demand answers from Bush now - before Iraqi policemen, soldiers, or judges start taking Americans into custody.

1. The legality of the U.S. occupation

The U.S. invasion of Iraq was never legal under international law. Bush used immense diplomatic pressure (including wiretapping U.N. embassies) to win passage of a U.N. Security Council resolution authorizing a U.S.-led invasion, but Bush could not get a majority so he withdrew the resolution rather than face defeat.

And then Bush invaded anyway, claiming (without legal justification) the right to enforce U.N. Resolutions against Iraq even without explicit Security Council authorization. (Under that theory, Russia or Iran could invade Israel to enforce U.N. resolutions against Israel. Imagine how we'd feel about that!)

Of course U.S. forces moved too quickly for the U.N. to stop them. So after Bush toppled Saddam's government and presented the world with a "fait accompli," the Security Council recognized the U.S. as the occupying authority because they had no other choice to establish a government in Iraq.

But those resolutions had to be renewed annually. And in 2007, the Iraqi Parliament insisted the U.N. resolution for 2008 should not be renewed. The Security Council ignored Iraq's Parliament in 2007, but made it clear 2008 would be the last renewal.

So when the current U.N. resolution expires on December 31, what then?

In theory, the U.S. occupation becomes illegal and subject to sanction by several courts: Iraqi courts, U.S. courts, and the World Court.

2. Would it matter?

I'm not a lawyer, so I'm not capable of researching applicable precedents. But if the U.S. occupation is illegal - and justiciable - several consequences come to mind.

a. The Iraqi Parliament could go to court in any of the 3 jurisdictions demanding withdrawal of U.S. troops. While U.S. courts and the World Court would move slowly, an Iraqi judge might issue an order quickly - since most Iraqi judges are Shia and 95% of Iraq's Shia oppose the U.S. occupation.

If an Iraqi judge ordered U.S. troops to leave, what would Bush do? Would he defy the Iraqi Parliament and the Iraqi courts?

If Bush defied an Iraqi court order, the legal status of U.S. troops would change overnight. Under the present legal regime, U.S. troops (and contractors) are completely immune from Iraqi civil and criminal law. But if an Iraqi judge declared their presence illegal, Iraq's courts could assert jurisdiction over U.S. troops (and contractors), both under civil and criminal law.

That would mean any Iraqi policeman could arrest any U.S. soldier or contractor. It would also mean any Iraqi citizen could sue any U.S. soldier or contractor.

All it would take would be one arrest of a U.S. soldier or contractor for the eyes of the world to turn to that case. And if that soldier or contractor were convicted and jailed, every other soldier and contractor would immediately be exposed to Iraqi justice.

Under those circumstances, it's hard to imagine any contractors remaining in Iraq. And it's hard to imagine U.S. soldiers patrolling Iraqi streets when any Iraqi policeman could arrest them.

b. Any Iraqi citizen could go to court in any of the 3 jurisdictions to sue any U.S. soldier or contractor. For example, the victims of the September massacre in Nisour Square could sue Blackwater for unlawful death or injury. Or an Iraqi shot by a U.S. soldier could sue that soldier.

And it's not only Iraqi victims who could file lawsuits in Iraq. For example, Halliburton employees who have been raped by their colleagues could sue their rapists - and Halliburton - under Iraqi law after their U.N.-authorized immunity expires.

Again, all it would take would be one lawsuit against a U.S. soldier or contractor for the eyes of the world to turn to that case. And if that soldier or contractor were held liable, every other soldier and contractor would immediately be exposed to Iraqi justice.

c. Any U.S. soldier ordered to Iraq after January 1 could simply refuse to obey the order, on the grounds that the U.S. presence is illegal both under international and U.S. law. That soldier would face a Court Martial, but (s)he would have a solid legal argument - and would quickly be followed by thousands of other soldiers.

3. Is there anything Bush can do to stop the occupation from becoming illegal?

Of course Bush and Cheney are fully aware of this situation. That's why they have been so desperate to negotiate a bilateral executive-only agreement with Iraq's Prime Minister, Nouri Al Maliki.

Unfortunately for Bush, such an agreement would be illegal under both Iraqi and U.S. law., because both Constitutions require legislative approval of international treaties.

That is why Bush has tried to define the bilateral agreement as anything but a treaty. In particular, the Busheviks have tried to call it a Status of Forces Agreement (SOFA), which are in fact executive-only agreements that the U.S. has with governments around the world. Unfortunately for the Busheviks, SOFAs do not authorize the presence of U.S. troops in those countries, they merely regulate the consequences of U.S. troop presence authorized under separate treaties.

What is really required is an agreement that allows the U.S. to operate military bases in Iraq, which is outside the scope of any SOFA. So the Busheviks are struggling to invent a new kind of executive-only agreement, the likes of which has never been seen in modern history. In recent months they quietly floated several improvised names, such as vague "security agreements." But each time they try to finesse the issue, Congressional Democrats justifiably smell the rat and insist on a real legal document with real Senate approval.

Unfortunately for Bush (and his client Maliki), time is quickly running out. Bush wants a completed agreement with Iraq this summer, but Iraq has frustrated Bush before - most notably by failing to adopt an oil law, which has been a top Bush priority for several years.

Like the oil law, negotiations over a "security agreement" appear to be going nowhere. Today the AP reported "significant differences exist on the major issues of immunity for U.S. personnel and contractors, authority to order raids and attacks and detention of people believed a threat to security."

These are not minor issues. From the very beginning of the U.S. occupation, Iraqis were outraged by the killing of innocent Iraqis at checkpoints and in house-to-house searches. Highly-publicized rapes of Iraqi women and girls by U.S. soldiers only made matters worse, violating the very core of Iraq's Muslim faith.

Although Maliki was willing to sign a broad, highly-publicized, and non-binding "Declaration of Principles" to placate Bush, it's hard to imagine Maliki would actually sign a binding agreement over the overwhelming opposition of Parliament and the Iraqi people. Last week, Maliki told CNN's Nick Robertson he wanted U.S. troops withdrawn.

So it's quite likely that our U.N. mandate will expire on December 31 with nothing to replace it. And on January 1, U.S. troops and contractors in Iraq would find themselves entirely outside the protection of U.S. law, and subject to the kind of harsh Iraqi justice few Americans can imagine.

This situation would be entirely intolerable to Congress and the American people. And it's hard to imagine what Bush would do then, especially since his term expires at noon on January 20.

Under this scenario, the difficult issues of Congressional funding and the withdrawal plans of the next President would be entirely moot. It won't matter how much money Congress gives Bush if our troops are in danger of Iraqi civil or criminal justice every moment of every day. Nor will it matter how slowly the next President wants to remove our troops.

If our troops are in Iraq illegally, and Iraqi courts enforce their own laws, Bush - or his successor - will have no choice but to remove our troops and contractors in January.