One poster made the bold claim that the war was illegal, per US law. When someone makes a factually erroneous claim like that, it is important to correct that error. There are simple-minded people on both sides of the issue, and we wouldn’t want to provide ammunition for those in the anti-war briggade either, or would we?
Will you please, please, please produce a cite for this case if you’re going to keep talking about it? If there was such a case, I am all but certain that the court’s ruling would be that the war resolution was a “political question” that courts cannot rule on, or, even more certainly, that the individual bringing the suit did not have standing to bring about an injunction against the President.
I would be stunned – absolutely floored – if a court actually weighed in with an approval of an act of Congress pertaining to the authorization of war, because, to my knowledge, no court has ever taken a stand on whether a particular war was constitutional or not, based upon the merits of the situation. So, again, either cough up the cite or stop repeating something you can’t back up.
John Mace – your cite of the Supreme Court case is well-taken, but I do not believe that it actually settles anything. If Congress had passed a law stating that “the US does not have to appeal to the UN for permission to authorize military force,” the bit of law you stated would clearly apply, because then there would be a conflict between the Constitution, a treaty, and a law.
However, the 2002 use of force resolution was dead silent on the process by which the war power in the Constitution is to be used. The statute did not seek to waive or otherwise strike down the portion of the UN Charter that requires the US to seek UN acceptance of a war that is not in response to an actual, armed attack on the US.
Rather than leaping right to the conclusion that there is a conflict between the 2002 war resolution and the UN Charter, you must first attempt to come to a conclusion that there is no conflict between them. Which, in fact, is my reading: the 2002 war resolution empowered the President to begin a war, but the UN Charter required the United States (note, not the President, but the political entity known as the US) to obtain UN approval for the war. That was not done. But there is no conflict, in this case, between the Constitution, a treaty, and a law, except that the United States did not carry out its treaty obligations to obtain a UN resolution approving force.
You make some good points, but if you read the full text of the resolution, it does not appear that Congress intended for the use of force to be contingent on a UNSC vote. There are numerous references to IRaq being in violation of UNSC resolutions, of Iraq being a threat to the US:
and (surprisingly) Iraq harboring terrorists:
Given the emphasis in the resolution on the security of the US, and the numerous references to UNSC resolutions, and yet NO REFERENCE to the desire to have the use of force subject to the approval of the UNSC, it would seem reasonable to conclude that no such approval was deemed necessary.
The lead up to the war clearly excluded a UNSC vote on the use of force, and Congress had ample time to clarify that requriment if it desired that requirement to be met.
I have no doubt that, had this issue been sent to the Supreme Court and found to be valid (ie, that the Iraq resolution was in violation of the UN treaty), Congress would have easily passed a clarifying resolution explicitly stating that no UNSC approval was necessary. That is, of course, my opinion. But do you think otherwise?
This article gives some interesting insight into the debate going on before the resolution was passed. Some Congressmen clearly raised the issue that the resultion should include a provision about the UNSC authorizing force:
And others explicitly stated that it should not be in the resolution:
The idea of UNSC approval was clearly hotly debated, and yet was not included in the resolution. What conclusion can be drawn for that, other than that no apporval was required?
You are 100% right. Congress didn’t just overlook any reference to UN authorization, it rejected several attempts to amend the resolution to make explicit such a requirement.
Here’s where you and I differ, however: I say the UN Charter is the law of the land, and that it must be followed unless it is explicitly waived, in accordance with Article VI of the Constitution. At no time was the UN Charter waived, either by law or by Presidential decree. One cannot strike down or waive the law of the land by insinuation or implication; it is not sufficient to note that Congress was silent on the UN in passing the war resolution. Again, you must also realize the distinction between Congress authorizing the President to undertake war, and the treaty requirement that the United States (not just the President) achieve a UN authorization for war.
Let me put this another way: If Congress enacts a new law about financial services, all other existing laws on financial services are not sticken down unless Congress specifically says so. You can’t then go ahead and say that Congress struck down one line of the UN Charter, which is the law of the land, without actually saying it in the law that was passed.
It’s there, and in fact it’s here on this board, maybe a year ago. I am pretty sure one of our lawyers here can dig it up. It’s ok for you to not accept it until i do, but it isn’t really 100% on target here.
Ravenman:
Again you raise some good points, but we’re talking about how the court would rule, not what you or I think. There is ample precedence for the US to use force w/o the approval of the UN (from Vietnam* to Granada to Serbia to Afghanistan). Further, the resolution itself speaks of the action as being at least partly defensive (my bolding):
You can argue about whether or not that statement is correct (wrt the actioni being defensive), but it’s in the resolution and was voted on by Congress, and that’s all that really matters.
I just can’t see that the court would rule that the action was illegal, per US law. Can you?
*AFAIK
John, the question boils down to this: is the UN Charter the law of the land in the US or not? The doctrines of “might makes right” or “a seldom enforced law is no law at all” are simply dodges for a very simple, factual question. Do you think that the UN Charter is the law of the land? If not, why not?
Also, if the UN Charter isn’t the law of the land, then what good are treaties? Why does the Constitution say they are the law of the land? Are the NATO Charter and the Geneva Conventions also meaningless?
And no, I do not believe that any US court would ever rule on the merits of the constitutionality of a war. That doesn’t mean that all wars are legal. If Courts found against the Executive, and the Executive refused to honor the court’s decision, we’d be in a constitutional crisis. There isn’t a District Judge in the land who would take the risk of a showdown of a weak Judiciary vs. a powerful Executive. Courts have, and will continue to, dodge the question… just like you’re doing? 
I disagree. My opinion (or yours) is not what matters. Only the SCotUS’s opinion matters. But if you want my opinion, it would be: I’m not sure. Frankly, I think most of what the federal govenment does these days is unconsitutional. So what"
As a strong proponent of original intent in constitutional matters, I could see some validity to the argument that the the clause of the UN charter in question is unconsitutional. The consitution gives Congress the sole authority to declare war. By subjecting that authority to the UN in some cases, the consititution has been effectively amended to limit the authority of Congress. That bypasses the explicitly stated process by which the constitution can be amended.
But even if I ignore that argument, and accept the UN Charter as the law of the land, it does not follow that the Iraq war resolution was illegal, for the reasons I already stated, in particular the “defense” clause I quoted earlier.
What makes you so sure that the Executive would refuse to honor the court’s decision? I don’t see it that way at all. As I said earlier, Congress would pass, probably the next day, a resolution explicitly stating that UN approval was not needed. Problem solved.
Wouldn’t it take an ammendment to the Constitution instead of a resolution? Also, IIRC, Congressional resolutions are generally not even as potent as laws.
I don’t know the difference, but I have no doubt that Congress would pass a statute, rather than a resolution, if that is what it took. Let’s not kid ourselves. Congress authorized the president to use force against Iraq.
Wouldn’t it take an ammendment to the Constitution rather than a statute? Or at least a de-ratification of the entire treaty (UN Charter)?
It would appear that national legislative bodies are beholden to international treaty only so long as nations lack the power to avoid the imposition of international will. The US happens to be one of the nations fully able to resist the will of any other nation, and virtually all conceivable collections of nations, opposed to our own.
Whatever the purported legality or illegality of ignoring UN Charter (and it’s obvious that’s what happened with Iraq, despite the wishful thinking of Bush and Blair administration supporters), it makes little difference, as I’ve said above.
Our actions invalidate the UN. What’s outrageous is our bold hypocrisy in attempting to use the UN to legitimize our escalating hostility toward Iraq. In so doing, we not only rendered the UN irrelevant, we tainted it with our ill-conceived War on Terror. Apparently BushCo. wasn’t content to castrate the UN; they wanted to make it a propaganda front as well.
That’s what I’ve been trying to argue but the Constutution is not clear about it.
No. Go back to the link I provided early of the SC case. If a statute is passed subsequent to the treaty, the statute nullifies the treaty. So, Congress could address Ravenman’s issue by explicitly saying that UN approval was not needed. No need to amend the constution to nullify a treaty.
Can I make this easier for you, SimonX and Diogenes the Cynic? Laws often conflict one another. When they do, the later law is taken to nullify the earlier. Laws can be passed in more than one way. They can be statutes or they can be ratified treaties.
The constitution is quite clear. It says simply that congressional laws and treaties ratified by congress are superior to state laws or state constitutions. It does not imply in any way that treaties are superior to statutes.
Congress doesn’t have a right to say what UN approval is or is not needed for. Congress cannot circumvent international law.
BTW, any argument rooted in a justification of self-defense is a complete non-starter. An action is not defensive just because a president says it is. The invasion of Iraq was a non-defensive attack on the sovereignty of another country and there is no circumstance under which such an action can be called legal under the UN Charter.
Simon: The post I was talking about is #41 on page 1 of this thread.
Don’t get hung up on treaties being “the supreme law of the land”. The Supremacy Clause says **exactly **the same thing about statutes, which make them co-equal. It no more takes a constitutional amendment to undo a treaty than to undo a law.
I’m sorry, but this is such an odd statement that I cannot parse it. Doesn’t the word ratify ring a bell?
Which is your opinion. That’s fine. But the fact of the matter is that any action can be acceptable under the UN charter if the appropriate people say it is. You are correct that this is not the President of the United States. But it is also not you.
Although he has more authority on this issue, it is not Kofi Anon either.
Ravenman came up with a cite. I am not sure it is the case I was talking about, but it’s nice he found it.
http://www.worldrevolution.org/article/643
DtC- there is no such thing as “International Law”. Really. No law that wasn’t at the very least ratified by Congress has no authority at all in the USA- or AFAIK, in most Soveriegn Nations. Congress can indeed circumnet “international alw” all they want, as “international law” has no authority in the USA- outside certain treaties- all of which are secondary to the Constitution.