May they Rest. In Peace.
28 May 2007 - 12 סיון 5767 by Huw
A thought for today…
The Constitution of the US specifically says that the President must go to Congress to request a declaration of war. That process can be changed by a constitutional amendment. But it has not been.
A legal war has not been declared in the USA since 1941.
People die in illegal wars too.
Sadly we cause them to do so.
I pray for the day when that’s not so, even as I honour the men and women who did what they felt they had to do.
What if we had paid attention in Civics class when we were to have studied the Constitution. What if we had learned our rights and our responsibilities as citizens of the Republic. What if, when war mongering politicians, eager to make a stroke for history came to us and blathered about patriotism, we simply said, “No.”
Both Democratic and Republican Presidents have used the Armed Forces with no declaration of war (think Truman, Eisenhower, Kennedy, Nixon, etc., etc.)
To some extent, it has become acceptable “common law” that we may fight limited non-war conflicts. The plus side of common law is that it allows for flexibility in our laws. The negative side is that something can develop which is way outside the intent of the original founders. The problem is that such flexibility is a necessary evil. Countries that do not allow for common law often have hideously complicated legal codes that are almost impossible to interpret correctly.
Another problem is that American culture considers war to be a “do or die” situation. Either we win or we are totally defeated. This view of war is inconsistent with limited actions. Had we declared war in Korea, Viet Nam, etc., we would have had to go for total victory. By now the world would be a glowing ashpile.
A third problem is that the way our Constitution is written does not really allow for actions by treaty organizations such as the United Nations or NATO. The UN does not tend to ask for our troops nowadays because they would simply become a target and an incitement to violence. However, technically, Korea was a UN action, not a US action. On a more equal footing between countries, WWII was a UN action by the end of the war. Dafur may become a UN action.
Here is a question for you. Do you consider that troops (of any country) that die in a UN sponsored action are dying in an illegal action, or is it legal? If US troops were to die in a UN action (which they have), would they be dying in an illegal action or a legal one?
I do not argue that all our actions are legal, far from it. But I do argue that your statement is too sweeping.
I never said either side was more or less culpable.
We can amend the constitution. We have chosen not to. We’ve not even amended it to allow for UN actions (which makes them unconstitutional = illegal). WWII as a”UN Action” is irrelevant since *we* were acting on a constitutional declaration of war. We could even amend it to allow for “limited” actions. We have not. Our situation is without the consent of our system therefore it is illegal.
My statement was intended to be sweeping: we’ve not had any legal war since 1941.
I’d love to see the entire debate reframed in the Presidential Election cycle: (A) let’s amend the constitution; (B) let’s act within those bounds.
Huw:
Please conduct more research before making sweeping statements about the “illegality” of several of the nation’s military conflicts. Your argument that unless Congress declares war [and do they have to "say the words" or is it enough to "authorize the use of military force?"] under the Constitution, war is illegal, is subject to much debate. Many legal scholars note that the power to “declare” a war is different than the power to “make” war - the former perhaps being only recognition of a state of hostilities such that the status of belligerents is made clear.
As far as it goes, the article at Wikipedia isn’t a bad start.
If the President gets authorization from Congress under the War Powers Act to “authorize the use of military force” I think arguing that such use is “illegal” because it violates the Constitution is a tough stretch.
I brought it up in part because we have a signed treaty, approved by the Senate, with the UN and with NATO.
If you say that such signed and approved treaties may not “trump” the Constitution, then you leave yourself open to:
1. Foreigners who are sentenced to death without access to their country’s Consul. This is currently a sore subject between Mexico, Paraguay, and the USA, and is forbidden by international treaty, which we have signed. It is also the subject of some recent Supreme Court activity.
2. Minors sentenced to death in violation of international treaty, also the subject of some Supreme Court activity back when.
And a few other unsavory things. Many in the human rights community appeal to these treaties precisely because we signed them and agreed to abide by them. However, by and large, the courts take the view that our word is meaningless unless it is permitted by the Constitution and an enabling law is passed by the US Congress.
To say that the enabling treaties for the UN, NATO, SEATO, etc., are meaningless is to also invalidate those treaties which help us in our human rights campaign. But to keep those treaties means that the USA actions in most of the conflicts were not actually illegal, though they may be unwise and immoral. There are some conflicts which were outside both Constitution and treaty, think Nicaragua.
I will keep saying it.
We can amend the constitution.
We can amend the constitution.
We can amend the constitution.
Or we can toss it out and start all over.
If it *is* the law of the land, then it is.
Or it is not.
If I can’t appeal to it, then it is useless.
Fine.
Toss it out and start over.
Yes, we’ve done a lot of things that are invalid in the light of the law of the land.
I think that supports my point.
Constitution, Article II, Section 2, “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . .”
Article III, Section 2, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .”
Article V, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . .”
It has been the claim of the human rights community that treaties are as legally binding, constitutionally, as any law, based on the above section. Notice that treaties are also listed as supreme law of the land. This is why no court case against NATO or SEATO has prospered. In fact, the human rights community claims an unequal enforcement of the law by the judiciary in that the treaties are good for conflicts, but not good for putting minors to death, etc.
You have a a fair point there. I’m especially enjoying the quote from Article V.
So um… wait… if the Human Rights Treaties are, in fact, the Law of the land…
Naw… I’ll back down.
Heh heh, go for it on another post Huw. I am part of the human rights community, so I will back you right up (pun intended)! It is a fruitful study to check up on which UN Declarations the USA has signed.
Fruitful?
:-)
I was thinking fruitful because you periodically make human rights comments. Tying those comments in to what we have legally agreed to do can give your arguments some force.
Mind you, that does not mean that we will do what we have legally agreed to do. But, it does tend to cut excuses away.
There is one other way in which this whole legality thing is important - and why adjusting the constitution is important.
By legal precedent and by tradition, a president - and other gov’t officers - has certain powers in time of war.
Yes, we all *know* what a war is - guns, bombs, etc - but when have we officially entered the time that such powers are in effect and how do we know when they are no longer valid?