No, it means it would be legal to kill someone if Congress passed a law saying it was legal to do so.
Are you denying that Congress authorized the military invasion of Iraq?
When you murder someone and a body is found, an investigation is initiated. Evidence is compiled, and suspects are looked at and/or interviewed. If sufficient evidence is found, charges are brought against a suspect…who is considered innocent until proven guilty. S/He hs brought before a court of law and tried. If found guilty, S/he is sentenced to some punishment.
Ok, so, its pretty obvious that the US invaded Iraq at this point to me. Shouldn’t take a genuis to figure that out to start an investigation. Is one being started? Have or are charges being filed? Its a bad analogy, as the answer is…if you murder someone and get away with it, you ARE innocent. Ask OJ about that some time. Its how the legal system works (at least in the US).
I understand your point, Ravenman, about it being a futile gesture to bring forth such charges against the US, as they will simply be vetoed. It hasn’t stopped the SC from filing myriad charges against Israel though, which are routinely vetoed by the US. Maybe you have a point that France and Russia have decided to let the US slide on this one in order to try and move things back to a normal working relationship. Can only the wronged country ask the UN to file charges on a country in violation of the charter?? I was under the impression that any nation could file such charges, but I’m not sure about that.
The point though is, if no one files charges, then to my mind there is no question of the US being guilty of said violations…they aren’t. How can they be guilty of violating the charter without even being charged with such violations?? If the UN doesn’t bother to formally charge the US, then the US reverts back to its own legal system when determining whether its acts were legal or illegal…and under our system, Congress in fact DID approve the Presidents actions prior to the invasion.
Now, I conceed that in various peoples MINDS the US is clearly in violation of the charter…but without formal charges by the UN, the reality is, they aren’t. Surely you guys can see that ANYONE (person, country, entity, etc) has a right to FACE charges against them, to be innocent until PROVEN guilty. Maybe the US has enough evidence (or a good enough lawyer) that even if formal charges were pressed (and they didn’t simply veto them) the US could in fact prove that it was not in violation of the charter. There seems to me to be enough wiggle room in the charter that a good lawyer could get them off. Seems more promising to me that OJ’s case, and he got off. 
-XT
I’m denying that Congress had the RIGHT to.
xtisme:
I’m aware that no one is going to try to hold Bush accountable for his crimes. That has nothing to do with whether he has actually committed them.
Cripes, talk about talking past each other. The UN Charter, which is binding on the United States Government under the Supremacy Clause, pertains to how the US conducts itself in the international arena.
The UN Charter is not a self-executing treaty, that is, its terms do not create domestic legal consequences for violations. The consequences of non-compliance with the UN Charter are, in the main, political and diplomatic, or whatever sanctions that the UN might impose. There are no criminal or civil penalties for violating that treaty.
Under US laws, Congress acted pursuant to its constitutional powers to enact a use of force resolution. The UN Charter cannot re-write parts of the Constitution. The President, against under US law, acted in accordance with the Constitution in his role as commander in chief.
However, in executing an unauthorized and unjustified war, the United States Government did not carry out its binding obligations under international law. That’s it.
But anything Congress does is, by definition, legal. The process for declaring it illegal is to challenge it in court. Since there isn’t even an effort to do this, it remains legal.
Sorry. You do not get to decide what is legal and what is not. Congress and the Courts do that.
How Nixonian.
From DtC
Why would they or anyone try BUSH?? Wouldn’t Congress be the natural place for trials (if they were ever going to happen), as they gave Bush the authorization?? I don’t like him any more that you do, but I fail to see why HE would necessarily get tried for this. I would think this would fall squarely on Congress. Isn’t that correct??
But Ravenman, the UN can charge countries in violation of the charter…can’t they? I’ve seen a number of such charges brought against various countries when they were in violation (like the ones brought against Iraq or various other countries). I understand (I think) what you are saying that “There are no criminal or civil penalties for violating that treaty.” That makes sense to me, as how would they enforce them?? But they still can BRING the charges of violation, can’t they? Its obvious to me I’m missing something critical here so I’ll try to do some research on my own today…I can practically feel your frustration.
-XT
Hey, there’s a rule against insults in GD.
But seriously, do you disagree with the original statement?
I’m not going to touch the rest of the illegal/legal debate, but I think the supremacy clause is being mis-interpreted in this debate. (We’ve been over this before, but I can’t find the thread, so I’ll summarize.)
The clause is as follows:
**
“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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
**
A number of sources (a somewhat slanted one is http://www.seidata.com/~neusys/colm0093.html) indicate that the problem is a misinterpretation of the phrase “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The Constitution being referred to here, is the Constitution of * any State *.
So the interpretation of the supremacy clause is that a treaty signed by the Federal government trumps any ** State ** law. A number of Supreme court decisions have ruled that the Federal Constitution trumps treaties (
a good cite here – not sure if they have any slant ). In particular, this last cite makes the argument:
Having more-or-less disposed of the canard that a treaty is the Supreme Law of the land on a par with the Federal Constitution, one can also argue that it is the role of the President to intepret and possibly abrogate treaties. I’m not going to go into this because it’s hairy and I Am Not a Constitutional Lawyer, but the gist of it is that if a treaty is a political instrument and the President is the head of the executive body of the government, then he gets to decide how to intepret it and whether to enforce it.
Bottom line – I tend to agree with the argument that the war was not illegal by strict interpretations of the Constitution. It * may * have violated treaties although even that is prone to interpretation.
For those who argue that it violates Article II of the UN Charter, after looking at the long list of member countries that have engaged in warfare since the Charter was signed, I think we have to ruefully conclude that it’s not so much a Law as a guideline.
Breaking such a law does not defile the law, it defiles the law-breakers.
John Mace Re: Congress always acts legally: No. I don’t buy the whole line about “it’s only illegal if someone gets caught.” Frankly, I think it’s a childish idea.
In my view, an illegal or unconstitutional act is such from the get-go. Such contentions are an important part of debate on a lot of bills. I just think its silly to believe that legislation or actions are intrinsically legal or constitutional until the moment they are struck down.
Going back to the Nixon thing, for example, I think it is pure fantasy to say that what Nixon while President was legal becase he was never impeached and he received a pardon so that he’d never stand trial. That the wrongness of acts can’t be established until a judicial proceeding has been completed is not only Nixonian, its Clintonian, too.
But in this specific case, I do believe that Congress acted legally and constitutionally in passing a use of force resolution.
Are you saying that treatise have the ability to supercede the Constitution? Since the US Constitution gave that right to Congress, under what situation do you find that Congress has a right to even ratify a treaty that sopecifically amends the Constitution.
http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=219202&perpage=50&pagenumber=2
So if you are an American citizen, you better damn well recognize Congress has such a right weather you like it or not. just as you must recognoze all things in the Constitution until amended.
Off the top of my head, can only think of a very few number of cases where countries have charged other countries with violating the UN Charter. Generally, the charge is that a country has violated a UNSC resolution. Here is a frequently cited list of UNSC resolution violations.
The only Charter-related case I can think of at the moment was a decision by the World Court in 1986 that found that the US acted in contravention of the UN Charter my laying mines in the Managua harbor. The court ordered the US to knock it off and to pay reparations.
The US response was pretty funny, actually. It more or less amounted to the Reagan Administration saying, “You’re not the boss of me!!” and denying that the World Court could make such a decision. We have never paid the reparations.
Let me clear my prior statement up a little bit: because the UN Charter is a not a self-executing treaty, there are no US laws that would impose criminal or civil penalties on persons who fail to uphold the UN Charter – I’m speaking strictly about US domestic laws in this case.
In terms of the international arena, the enforcement mechanisms for the UN basically boil down to Chapter VII of the Charter, which has been widely quoted here. The UNSC would have to vote and establish some threat to peace, and could impose sanctions of various sorts – economic, military, whathaveyou. A country can also be suspended from UN participation for various reasons.
But in the main, the UN seeks to use pursuasion rather than coersion. If you look closely, you’ll see that all those UNSC resolutions on Israel are considered under Chapter VI of the Charter, which relates to “Pacific Settlement of Disputes” as opposed to enforcement. That’s basically an attempt to cast that whole situation as a problem that needs to be worked out through cooperation, rather than trying to force some kind of resolution on though coersive means.
And there’s no frustration on my part. I like this stuff, and I’m happy to debate it.
For those who argue that murder is a crime, after looking at the long list of South-Central Los Angeles gang members who have engaged in murder, we must ruefully conclude that it’s just a guideline.
Look guys, I’m seeing 4 basic arguments as to why you think the Iraq invasion was legal, and Sailor already refuted them about 6 months ago. There is nothing confusing or nebulous about it.
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“Nowhere is it stated that you can’t wage war on another country” - Sailor refuted this by citing the relevant sections of the UN Charter Article 2, to which the United States is signatory.
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“International law does not exist” - see above. It doesn’t matter what you call it, we signed it and it is binding.
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“Congress approved the war” - Originally, when people in this forum called this an illegal war, they were of course saying so in regard to international law. Whether it violated the US’s own laws is a wholly seperate matter. Even if we assume for the moment that the war was legal under U.S. law and assume that U.S. law supercedes international law, we’re still talking about internal laws. The United States still, as a country, violated the UN charter. If I, as the leader of Bloweria, sign a treaty that says I won’t invade Xtismeland, and enact a law in Bloweria that says “all treaties signed by Bloweria are the opposite of what they say and no backs”, then invade Xtemeland, I’m still in violation of the treaty. This is just ludicrous; If countries are allowed to violate treaties simply by passing a resolution and claiming that the resolution supercedes the treaty, what’s the point of ever having treaties?
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“Lots of countries have violated the UN Charter.” - I have nothing to add to what Sailor has said except to reiterate that it’s patently absurd to suggest that the act of breaking a law nullifies said law.
Diogenes a treaty cannot strip or deny Congress a power given to them by the U.S. Constitution. Nor can it strip or deny a power given to the President, whether implied or not.
As Ravenman noted the power to declare war or use military force is reserved to the President of the United States and Congress. Ergo, no treaty can strip either branch of government to exercise this power.
Ravenman nailed it when he said Congress and the President acted pursuant to the U.S. Constitution. Both Congress and the President allegedly and presumably complied with the U.S. Constitution. I say allegedly and presumably because there is much debate among constitutional scholars whether or not military deployment and action is ever constitutional without a formal declaration of war by Congress. However, legally speaking the U.S. Supreme Court has consistently given the President and Congress a lot of discretion regarding the use of military forces in combat around the world without a formal declaration of war. However, it is incorrect, I think, to say Congress never had the “right” to give its acquiesence to military force in Iraq. Article I, Section 8 of the U.S. Constitution has been read to give them this authority so Congress most certainly had a right to do so.
The U.N. charter has been held to be non-self-executing. See Sei Fujii v. California 217 P.2d 481 (Cal.App.1950). Assuming the California court is correct then consequently, it was incumbent upon Congress to enact legislation to implement the relevant provisions of the UN Charter, i.e. those regarding use of force. However, in my opinion this would not necessarily be sufficient in precluding the President from using military force. While Congress may establish laws for itself regarding the use of military action in compliance with the UN Charter, Congress simply lacks the Constitutional authority to pass legislation impinging upon the powers of the Executive.
The Commander and Chief clause of Article II of the U.S. Constitution has been read to confer upon the President power to use the U.S. military in combat situations without the express consent of Congress to do so. Lincoln exercised this power and the U.S. Supreme Court had little difficulty in legitimizing his authority to do so. Nor did the U.S. Supreme Court have difficulty in legitimizing his authority to seize ships trying to enter Southern ports. Which in my opinion creates a rather interesting paradox as to whether or not the UN Charter supersedes the U.S. Constitution. It has been observed that the U.S. Constitution supersedes a treaty or international Charter and the Courts will either interpret the charter or treaty in such as way as to harmonize it with the U.S. Constitution or will just summarily state some provision of a treaty or charter incapable of being followed because it conflicts with the U.S. Constitution.
So it would seem Congress did fail in its international obligations to implement legislation to give effect to those provisions of the UN Charter regarding the use of force if indeed it is a non-self-executing treaty. However, even if the UN Charter were a self-executing treaty Congress would still have to pass laws. Why?
Restatement III Comment I states:
Constitutional Restraints on self-executing character of international agreement. An international agreement cannot take effect as domestic law without implementation by Congress if the agreement would achieve what lies within the exclusive law-making power of Congress under the Constitution. Hence, since Congress alone has the power to Declare War, then it is up to Congress to implement the UN Charter provisions regarding the use of military action.
So in either scenario it would seem the U.S. failed to live up to its international obligations because Congress never passed any legislation implementing the UN charter provisions regarding the use of military action. There are two possible ways the U.S. could squirm their way out of this scenario. One would be that the President had the authority to use military action unde the Commander in Chief clause of Article II and was prepared to do so and would have if Congress did not gives its acquisence and the other is that the U.S. followed international custom.
This is where Ravenman and I disagree.
Do you think so Ravenman?
Admittedly the International Court of Justice has construed the obligation to refrain form the threat or use of force to be a rule of customary international law, see Nicar v. U.S., and thus the use of force against any state may be underaken only as an exception to a norm of customary international law. However, under Article 51 explicitly provides for self-defense “if an armed attack occurs against a Member of the United Nations,” and while the ICJ and other scholars have taken a very narrow interpretation of “self-defense” under Article 51, another focus is on the broader “inherent” right of self-defense that existed under customary international law before the UN Charter and presumably continues to this day.
D.W. Bowett noted in this regard: It is, therefore, fallacious to assume that members have only those rights which the Charter accords to them; on the contrary they have those rights which general international law accords to them except and in so far as they have surrendered them under the Charter…As we have seen, the view of Committee I at San Francisco was that this prohibition left the right of self-defense unimparied; in the words of the rapporteur ‘the use of arms in legitimate self-defence remains admitted and unimpaired’…The history of Article 51 suggests nothing of an additional obligation; the travaux preparatoires, to which we may legitimately resort in the case of ambiguity, suggest only that the article safeguard the right of self-defece, not restrict it." D.W. Bowett, Self-Defense in International Law 185, 188 (1958). See also Oscar Schachter, The Right of States to Use Armed Force, 81 Michigan Law Review 1620, 1634. (It is therefore not implausible to interpret Article 51 as leaving unimpaired the right of self-defense as it existed prior to the Charter).
So if the Charter merely protected the right of self-defense as it existed before the Charter rather than impair it, does it justify U.S. military action in Iraq? Under the international law regarding self-defense before the UN Charter most likely.
However, there is one other way to legitimize U.S. action. International law can be established by custom or practice. Unilateral acts that stretch the meaning of self-defense are treated as “State practice” but there is no general opinio juris to support their acceptance as law. Between 1945 and 199 two-thirds of the members of the United Nations, 126 states out of 189, fought 291 interstate conflicts in which over 22 million people were killed. This series of conflicts was capped by the Kosovo campaign in which 19 Nato democracies flagrantly violated the UN Charter. Nato democracies and other nations have violated the UN Charter in a number of situations involving another state. Thus a de facto system exists which consists of actual state practice in the real world.
But those are two entirely different things. A private citizen committing an illegal act has broken the law whether or not he gets caught. But an act of Congress is automatically law until and unless it is struck down by the SCotUS. No other body is authorized to determine the Constitutionality of a law. Not you, not me, not DtC. This is not a matter of “getting caught”, but one of acting in good faith.
How is your position different from saying that no law is Consitutional until the SCotUS says so? But that’s not how it works. Without a challenge, the act of Congress is “the supreme law of the land”.
Jimmy1:
How, even by any stretch of the imagination, could one consider the Iraq invasion as “self-defense”?
Jimmy1 - blowero just stated my case perfectly.
I don’t think that the Administration has given any substantiation to the rhetoric that the US acted in self defense in invading Iraq.
And as I have stated earlier in the thread, customary international law on preemptive military force holds that a threat must be imminent, not allowing time for contemplation, in order to act in anticipatory self defense. This was so clearly not the case with Iraq that it’s hardly worth talking about.
If you can find some affirmative justification for the war in international law, let me know.
So, I guess you would agree blowero and Sailor that, in spite of the fact that there has been neither charges brought nor even an offical inquiry by the UN, that the US’s actions were illegal…by fiat (or whatever the english word is for “because I/we say so”…not sure if ‘fiat’ is the right word). And that most of the countries in the SC ALSO have perpatrated illegal acts based on the Charter. For if the US’s actions were in fact illegal (without either charges or trial or chance to defend themselves) then certainly we could list out MANY other countries and organizations (like NATO) that have similarly broken the charter and who’s acts are there for illegal. I guess that makes the US…no better than other nations. I suppose I can live with that.
From Ravenman
But isn’t it customary to at least let the accused present data in their own defense? I mean, its kind of viscous to accuse someone of a crime, but then not even bother to take them to trial to allow them to defend themselves. In our own personal lives, no one would stand for such a thing.
To play devils advocate here (lol, I feel like I’m defending Bush, who I personally dislike on these threads), how do we KNOW Bush et al does NOT have additional proofs or information that would legitimize their case if brought to trial? It seems that its POSSIBLE they could produce enough info, and that there is enough wiggle room in Article 51, that they COULD do so…its not beyond the realm of possibility IMO (though I tend to doubt it)
After all, they have NOT had to defend themselves against any real charges…and lets face it. This President/Administration loves these security games and secrets. They seem perfectly content to only show as much as they absolutely have too, and not one piece more. Personally I don’t THINK they do, but thats just my opinion as joe citizen…I don’t KNOW that they don’t, and anyone who says the do for a fact (unless they are in the Presidents inner circle) is lieing. We can infer that they don’t, we can assume that they don’t, we can think that they don’t…but we don’t KNOW that they don’t.
I guess it just grates on me that people are accusing the US government of illegal acts without any actual charges being brought against them. I know that I might be being unreasonable about this, and that said charges don’t have a snowballs chance in hell of actually being brought against the US for the various reasons you went into…but it still grates on me.
There is no way for the US to be able to present its case, get a hearing, and a ruling…its all just bullshit and speculation IMO. Its like accusing someone of being a thief, but never pressing charges, or allowing the accused the oppurtunity to defend themselves. In the back of people mind, they will always be thinking ‘thief’ and guilty, even though the accused never went to trial, never got his chance to defend himself, and was never FOUND guilty.
So, blowero, Sailor ‘refuted’ them all? Why are we still argueing then? I know you think its been slam dunked, and to you it has been. To me, its a murky as ever, and I seriously doubt it CAN be resolved, simply because its basically a matter of opinion, until and unles there actually ever ARE charges brought against the US by the UN for violations of the Charter.
From blowero
Article 51 states that you can in self defense. Just because YOU think that the US’s reasons were bullshit (ok, and I do too for the most part) doesn’t mean they ARE bullshit, or that there isn’t enough there to prevent the US from being in violation of the Charter. Again, without charges and an official ruling, its just SPECULATION on your part.
You are looking at the data provided by the US to justify its actions (and be honest, you are looking at it through your own perspective and prejudice just as we all are), but you aren’t looking at it the way a lawyer would, or a court for that matter. I’ve seen too many instances in the past few years where a seemingly air tight case (like with OJ) is blown away by a slick lawyer. In addition, how do you KNOW you are looking at the whole story either? I would guess you could care less about my opinion on any of this, but I dont think this has been refuted at all, nor do I think it CAN be refuted without something official where the US is formally charged and allowed to present its case and get a ruling.
From blowero
Well, this isnt’ my arguement so I don’t have much to say on this. Certainly, ‘international law’ as reguards the UN Charter seems to be fairly weak and toothless if the US and other nations can and do basically disregard it or circumvent it whenever they have the need to do so. I’m not saying it doesn’t exist though.
From blowero
My problem with this, as I’m sure ya’ll are sick of me saying is two fold. DID the US violate international law? You are SPECULATING that they did, but I’ve seen nothing official saying they did. It obviously doesn’t matter to you, as you ‘know what you know’. You are totally confident in YOUR interperatation of the data, and willing, in the face of zero official charges from the UN towards either the US or any of its allies, to simply state that the US’s actions were illegal…end of story. Fine by me…thats your opinion and you could be wrong. You could very well be right too, no doubt of that. But you don’t KNOW…you are merely speculating about it.
My other problem is, if these laws in the Charter are routinely violated by other nations (including the US) whenever they have the need…then what good are they? Here is the US, violating the charter (according to you and many others), doing an illegal invasion of Iraq…and whats the consequences them?? Here is NATO, violating the Charter…whats the consequence to them? Here is Russia, China, Israel, India, Turkey, violating the Charter…whats the consequences?? It goes on and on. Most of these infractions against the Charter were never even charged to the countries that did the violations…why?
From blowero
Well, already covered this in the last one. I know you don’t agree…its pretty obvious you don’t. But do you also go after OTHER nations in the same way you’ve torn after the US on this thing? Were you outraged over NATO’s ignoring the UN Charter? Over Russia? India?
My take on this is, if a law has no teeth, people will abuse it or ignore it. Do you ever drive over the speed limit, blowero? I usually drive between 5-10 miles over the limit myself. Why? Because I know that the cops won’t generally pull me over for breaking the law in such small amounts…they want the really BIG fish that got 30 or more miles an hour over the limit. So I, and probably a large percentage of my fellow citizens routinely break the law, because we know the de facto law is, 10 miles or less over the limit on a highway or free way won’t be punished. In empiric terms and in actual effect, this DOES ‘nullify’ the law…it basically says that the REAL speed limit isn’t what is set, but its 10 miles an hour faster. To me, this speaks more to human nature.
I know that you, and especially Sailor, hold the US to a higher standard than any other nation. You EXPECT the US to play by the rules even if other countries don’t, and are disappointed when they don’t. Those are admirable qualities and I respect that stance. However, the US, like ever other nation on earth, is run by fallable humans. Hell, IMO politicians of every stripe are MORE fallable than the average citizen…prone to fuck up on a grander scale. Its not an excuse…its reality, and in the end, the US really ISN’T better or more noble than all other nations. Maybe thats sad…but its true.
-XT