I could never figure out why in heck someone would be so underhanded as to deliberately lie about the WMD, but not be underhanded enough to plant something somewhere, just to be able to say they found something. Surely we have some spare smallpox or anthrax stash we could stick somewhere.
I agree. The opinion in the case I referenced above says that the treaty making power shouldn’t be used to do things that you couldn’t otherwise do by law. However, as usual, the door was left ajar and it would seem that what is or is not a “proper subject of regulation” must be decided on a case-by-case basis with the attendant complication that what is “proper” seems to depend on circumstances.
I’m stating the uncontestable fact that treaties raitified by Congress are given the status of “Supreme Law” under the US Constitution. That puts them on the same level as Constitutional Amendments. I don’t know how SCOTUS would decide a case of a treaty which conflicted with a Constitutional Amendment but the UN Charter doesn’t do that so there’s no problem.
Even if the Supremacy Clause does allow Congress to effectively amend the Constitution, so what? If that’s the way it’s written, that’s the way it’s written. You’re the one who’s always saying that it doesn’t matter if we think the process is fair or reasonable.
I don’t know. You’d have to ask the Supreme Court that, but as far as the UN Charter is concerned, the question doesn’t come into play.
The UN Charter does not change the Constitution or take any powers away from Congress.
And once again, US law is irrelevant anyway. The invasion of Iraq was a violation of international law and US law is subordinate to it.
Tonkin Gulf Resolution realpolitik
Bump’s original question specifically addressed impeachment, as in, if Bush started the war illegally, why won’t Congress impeach him?
First, impeachment is a political process, not a legal process (as explained in the original thread, to which Bump referred in his/her original question.) This is all about who’s a Democrat and who’s a Republican, and how many of each there are in each house of Congress. Bricker is right – Congress gets to decide what high crimes and misdemeanors are.
I disagree utterly and completely John Mace when he says the Dems wouldn’t impeach Bush if they controlled both houses of Congress. Of course they would! The GOP impeached Clinton because he lied about a blow job. Bush lied about a war, and over 2,000 Americans have been killed because of it, and the United States’ stature overseas has been wrecked in the process. Grounds for impeachment are left deliberately vague, to allow Congress to decide what it collectively considers “high crimes.” If they own big enough majorities to pass the bill of impeachment in the House and convict in the Senate, and if they believe impeachment will help their party and their own political careers, they’ll impeach. Of course, Bush will be long gone from the White House before the Democrats ever see that kind of majority in either house again.
Second, the “legality” of war is determined entirely by who wins and who loses; or, more accurately, who has the power after the war to define the legality of the war. If all the world’s governments pass resolutions declaring the war on Iraq illegal, it means nothing. We are not going to be hauled before a world court, judged and punished. (Well, we may be punished in hundreds of little ways, but nobody’s going to jail over it.) It is not a statement of cynicism to say the winner of a war gets to write the history.
Finally, Congress didn’t actually declare war on Iraq. What Congress did do was authorize the president to do what he was going to do anyway. It’s officially called “Authorization for the Use of Military Force Against Iraq”. The joint resolution is a lot longer than the Tonkin Gulf Resolution, and in it Congress takes pains to limit the president’s powers to use the military to force Iraq to comply with the U.N. resolution. The last time Congress declared war was Dec. 11, 1941, against Germany. Notice that the declaration boldly says (like the one against Japan only three days earlier) that a state of war exists between the United States government and the people of Germany (or Japan.) That language is nowhere in the Iraq war resolution.
Somewhere along the line, I saw a talking head on television opine that Congress will probably never again declare war like it did in 1941. I don’t remember why, but it had to do with the whole realpolitik thing. I’ll admit, this looks like a hair-splitting distinction, but think of it this way: Authorizing military force is Congress’ way of saying, “Yeah, fine, you’re gonna’ do it anyway, so here’s some money, and here are some guidelines, and try not to fuck this up too bad and make us all look like a bunch of dumbasses, okay?” A formal declaration of war says, “What?! You bombed our Pacific fleet to smithereens!? Damn you! This is war!” But, I have to admit, the end result is probably the same.
From Reid v. Covert (1957):
And the actual language of the Supremacy Clause is of course:
So there are actually three things which are the “supreme Law of the Land”: the Constitution, the laws of the United States, and treaties. They can’t all three be equally supreme, and of course the Constitution trumps a mere law. Treaties are on a par with federal laws, but not with amendments to the Constitution.
And how, out of curiosity, does that mitigate Diogenes’ central point, i.e., that violating the UN Charter’s provisions for making war on another sovereign state should be considered illegal, since the UN Charter is a ratified treaty that doesn’t contradict the US Constitution? I don’t have any strong opinion on the matter, or a dog in the fight, but it seems to me that you might have effectively refuted the claim that Bush’s actions wrt Iraq were unconstitutional, but done nothing to even begin to counter the claim that they were illegal. Unless I’m missing something somewhere.
The only point of Diogenes’ I was trying to refute was the sentence I quoted.
How can you disagree with me on something I have not discussed? I said they wouldn’t impeach over starting the war in Iraq. I have no doubts they would try to impeach him (if there were time, which there won’t be) over any number of other issues.
I don’t believe anyone here said they did. What they did do, though, was authorize Bush to make the decision about using force against Iraq. The gave him the authority to use military force. It’s not coincidence that the measure they voted on was called “Authorization for the Use of Military Force” (AUMF).
I wonder if anyone here (other than **Diogenes ** 
) who claims Bush violated international law by going to war in Iraq and should be impeached for that would also want Bush impeached for going to war with Afghanistan. If not, why not?
Can we have a cite for that? From the UN Charter:
What do you think “territorial integrity” and “political independence” mean?
To make the law more clear, take a look at United Nations General Assembly Resolution 3314: Definition of Aggression:
I’ve bolded some stuff I think is particulary relevant.
I thought the “starting the war in Iraq” part was a given. If not, then let me restate in very specific terms: I disagree with your contention that the Democrats wouldn’t impeach over the war in Iraq. I believe they would. The war is widely unpopular among the American people, and if the Dems had sufficient votes in both houses of Congress, yes, they would impeach over the war in Iraq.
You are correct. I was carrying over the concept of declaration of war from another thread. My mistake.
Because impeachment is a political process, Congress can impeach over anything it wants to. Starting a war isn’t illegal, as I have already opined, if you’re big enough and strong enough that no one is going to hold you accountable. There’s no U.S. federal law prohibiting the president from starting a war under any condition, and “International Law” is little more than an inconvenient suggestion to someone with imperial designs.
So, the US can slice off a big chunk of Canada and call it our own as long as we leave the government in Otawa in place? Or, we can lob missiles across the border with impunity as long as we don’t disturb that government?
Territorial integrity is different from political independence. That’s why both are listed with an “or” between them. I don’t see that your quote supports the claim you made that military force is disallowed only in cases where the government is overthrown:
One can attack a country’s “territorial integrity” without overthrowing the government (or even trying to overthrow it).
We overthrew the government, so it’s a moot point, isn’t it?
No, because I was trying to determine the veracity of your statement. Are you now saying that you were wrong?
Because if you were wrong, one might argue that it’s more likely that Clinton’s bombing of Serbia was illegal than that Bush’s invasion of Iraq was. Clintion did not even have the fig leaf (if you want to call it that) of Congressional approval. He bombed a sovereign country with nothing other than his own authority.
I never said he should be impeached. I’m just saying he’s a criminal. I don’t care about impeachment one way or the other.
Bombing Serbia was not an attack on sovereignty, on territorial integrity or political independence.
What am I wrong about?
I was against the bombing of Serbia, by the way. I was also didn’t like it when Clinton bombed Iraq.
Really? What defines an attack on a countries territorial integrity? Cold the US decide, unilaterally, to set up a military base in Calgary? Would that be OK wrt to the UN Charter?
Military occupation is explicitly included in the definition of aggression, so no.
I don’t know what you’re trying to get me to say. Are you trying to get me to say that Clinton’s bombing of Serbia was illegal? Maybe it was. I don’t really know. So what if it was? How does that excuse Bush?
I’m trying to get you to say what you think a violation of a country’s territorial integrity is. To me, bombing a country is very clearly a violoation of its territorial integrity (its ability to control what goes on within its borders). But since you don’t think so, I’d like to see some examples of what you think does constitute such an act.
Or, from your cite on the definition of aggression (emphasis added):
How is a bombing campaign not “an attack”?
If that doesn’t qualify, how about:
Is bombing not considered “bombardment”?
You claimed that the UN Charter only forbids aggression when it is aimed at the overthrow of a government. That it sometimes allows bombing. How is that “sometimes” determined?
I’m trying to get you to say what you think a violation of a country’s territorial integrity is. To me, bombing a country is very clearly a violoation of its territorial integrity (its ability to control what goes on within its borders). But since you don’t think so, I’d like to see some examples of what you think does constitute such an act.
Or, from your cite on the definition of aggression (emphasis added):
How is a bombing campaign not “an attack”?
If that doesn’t qualify, how about:
Is bombing not considered “bombardment”?
You claimed that the UN Charter only forbids aggression when it is aimed at the overthrow of a government. That it sometimes allows bombing. How is that “sometimes” determined?