I am curious, what is the legal justification the US, UK, Canada, et al. are giving for their recent attacks on Afghanistan? I don’t recall any formal declaration of war by any of the Western countries. Sure, Bush has gone on record calling this the “War on Terrorism”, but people here have repeatedly trumpeted the rule that only Congress can declare a real war. What’s the point of the rule if the president and his cabinet can unilaterally issue an order to attack a foreign state? That is, exactly what is the difference between an “official” war and what’s going on in Afghanistan? (IIRC, there was a similar legal situation with Vietnam. Parallels, anyone?)
The President, as Commander-in-Chief, has the ability to deploy the armed forces of the US as he sees fit. Congress, not happy with the notion that one person could zap the US into war, enacted the War Powers Act. However, they also realized that sometimes the President needs to act quickly and can’t wait for glacial congressional hearings to make something happen. As a result I believe the President can deploy US forces as he sees fit but has 60 days to report to Congress or remove the forces. After that the President must report to Congress no less than once every 6 months till armed forces are recalled. Congress can force the President to recall forces at anytime after the initial 60 days are up.
None of this needs a declaration of war. Frankly, although I’m not certain of this, a declaration of war places more power into the hands of the President. Unless extreme circumstances dictate it I think Congress would prefer to avoid doing that and retain some control on their own. Still, unless congress specifically says otherwise, the President and the US can basically go to war in all but name.
Sorry I didn’t answer this part of the question. Ultimately it is probably unanswerable. What is ‘legal’ anyway. Something is legal (or illegal) based upon some consensus. In the US it is illegal to take some recreational drugs. In other countries it is perfectly legal for you to do so.
When it comes to international law things get even dicier. The US claims our retaliation efforts are legal. To give a semblance of legality the US tries to get UN support. With or without it however I think we’d be doing the same thing.
In the end it comes down to each nation’s national interest. Most nations, having had terrorist attacks of their own, are glad to see a message like this sent out. At least in the short term most terrorists are likely to go to ground for awhile (the IRA and the like…I’m sure UbL still has some surprises left for the US as long as they are in for it anyway). Certainly terrorists have always faced this or that government hunting them down but with the current extreme focus on such things launching attacks can only harm their causes and bring a LOT more trouble their way than what they are used to.
The few governments who particularly despise the US or support terrorists for their own reasons declare the US actions illegal and/or immoral (ala Iraq). However, even some countries that are not friends with the US are letting the US move forward without much hindrance (such as Iran). While Iran won’t help the US Iran doesn’t particularly like the Taliban either. Taking sides is politically untenable in either direction so they are mostly sitting on the sidelines and let two peoples they don’t like knock heads.
About the best ‘legal’ justification you can come up with is the attack on the WTC. In just about any country’s book that rises to an act of war. More people died and more economic damage was done at the WTC than was done in Pearl Harbor. Most every war sees both sides claiming the mantle of a just cause. While I’m sure each side would like their enemies to just roll over and take it even the most diehard fanatic has to realize that that just isn’t likely to happen. For example, Japan had very specific reasons for attacking the US and felt they were justified doing so. They might even have hoped that the US would just take one on the nose and lay off but I doubt they were too surprised when the US decided to go to war instead.
So, who’s right? I guess it depends on which side of the fence you sit on. Nevertheless most nations of the world see such an action as the WTC attacks as an act of war and whatever their politics can hardly blame the US for seeking a response to such aggression. The day may come when they find themselves in the same boat and having a precedent set in the government’s favor only helps whatever established regime might be in place.
Actually, no, your first post answered my question entirely (with respect to the US, anyway). I am not interested in turning this question into a debate on the general justification for retaliating against Afghanistan. I was merely concerned with whether such action is consistent with each participating nation’s internal laws regarding foreign affairs and who has power to set policy and authorize military activity.
I would still like to hear from someone more knowledgeable on Canadian and British law regarding whether those nations’ involvement is legally sanctioned in the strictest sense. Last night I heard Jean Chretien commit Canadian troops to the attack, yet CTV made no mention of any formal declaration of war. I suspect that a declaration of war requires consent from Parliament and the Senate, but then again perhaps Canada has some legislation permitting the prime minister to unilaterally authorize engagement in unofficial military campaigns.
The US is using the NATO treaty to obtain help. The UK and Canada are both NATO countries and are participating based on the NATO treaty. The NATO treaty is the legal basis for their actions.
I can’t answer to what the particular laws are in the other countries you mentioned when it comes to deploying their armed forces. Still, I have no doubt that they are working through their procedures within their own laws as appropriate to get their militaries deployed.
What I would find interesting is to know how treaty obligations change things. For instance, suppose NATO agrees as a group to stand together and fight whoever it may be does that obligate the individual countries in any way? To be more specific I mean ‘obligate’ beyond a moral imperative to abide by treaties you have signed. Assume parliament or congress doesn’t want in the war and says no-go. Can the British PM or the US President tell parliament and congress to take a hike while they fulfill their treaty obligations?
I suspect the PM and President couldn’t override and their armed forces would stay home. I imagine after that there would be a good chance the treaty organization would dissolve as a result (or at least kick out that member). Still, I don’t know…any ideas?