# What constitutes a "legal" war? **URL:** \ **Category:** Great Debates\ **Created:** [December 1, 2003, 3:13am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168 "2003-12-01T03:13:10Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 1, 2003, 11:20pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/61 "2003-12-01T23:20:10Z")
The US Constitution states that all treaties ratified by congress shall be the supreme law of the land. They have the same authority as a constitutional amendment. ---
**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\ **Post date:** [December 1, 2003, 11:20pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/62 "2003-12-01T23:20:35Z")
> [@](#): > > \*Originally posted by pervert \* > \*\*But are these treaties superior to legislative actions? \*\* They are equivalent to law. And since these treaties deal with far more than the decision to go to war, they cannot be said to be superceded by newer legislation. As such, Congress would have had to officially repeal them. ---
**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\ **Post date:** [December 1, 2003, 11:29pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/63 "2003-12-01T23:29:16Z")
> [@](#): > > \*Originally posted by DrDeth \* > \*\*Well Dudes, we have several problems here. Let us start with the first one- whether or not the Invasion of Iraq was legal by US laws. It was. Congress gave the Prez the authority to do so. And, according to the Courts- it doesn’t have to do so in a “Declaration of War” (nobody “declares” war anymore, besides). This was already taken to the Courts in one of the Apellate Courts, so absent a reversal by the Supremes (HIGHLY doubful) the "war’ (note small case w) is legal by US laws. OK? > \*\* No. You ignore the fact that these international treaties ARE US law. > [@](#): > > \*\* > Ah, but here is the rub- just because something isn’t “legal” (allowed by law) doesn’t mean it is “illegal” (prohibited by law)- either in US law and/or especially in the murky, fuzzy world of “international law”. There is a gap between the two statuses (stati?). \*\* False. If a treaty says that there is to be no use of armed force safe with authorization of the Security Council, and such authorization does not exist, then the treaty is being violated. > [@](#): > > \*\* > Let us assume for the purposes of this debate- that Bush et al really truely thought there _were_ WMD, and SH was really going to give them to terrorists to use against us. Certainly we can agree Saddam was evil enough to do so, and really desired his very own CBR arsenal- and at one time was trying very hard to make one, including nukes. (yes, I know that Bush did list some evidence that he did- or should have- known were spurious, but there was other evidence) \*\* Such as? No evidence whatsoever that was presented was a solid indication for the presence of WMDs, and the CIA have in fact admitted that they had no solid evidence, and informed the White House of that fact. > [@](#): > > \*\* > Assuming that- what does “international law” say about a Nation that THINKS it is carrying out a war of self defense- but it turns out they were wrong? Damn little, AFAIK- IANAL-YMMV. 😃 > \*\* You don’t think you act in self defense against an opponent who can’t hit you lacking the necessary delivery technology. This is really ridiculous. > [@](#): > > \*\* Of course, if you can PROVE that not only was Bush _wrong_ about ALL the evidence of WMD, but he really KNEW there were no WMD- then that’d be different. \*\* False again. The existence of WMD is in fact irrelevant to the question whether the war was justified. As long as Iraq is lacking ICBMs, the WMDs don’t pose a direct threat to the US. In order for the war to be self-defense, a clear and present, i.e. imminent danger is necessary. Not the “couldawouldashoulda” that Bush presented, being dismissed as bogus by practically anyone who had studied Saddam. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 1, 2003, 11:42pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/64 "2003-12-01T23:42:21Z")
> [@](#): > > Elucidator wrote: > One has to wonder just what is to be gained here. It’s meant to address a disagreement between **Doors and Diogenes** \*. With this board being inundated with “Bush is a war criminal” posts, it seems worthy of clarification. \*Sorry if that sounds like a replacement act for Siegfried and Roy. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 2, 2003, 12:20am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/65 "2003-12-02T00:20:53Z")
> [@](#): > > \*Originally posted by OliverH \* > \*\*They are equivalent to law. And since these treaties deal with far more than the decision to go to war, they cannot be said to be superceded by newer legislation. As such, Congress would have had to officially repeal them. \*\* Not true. Treaties are subordinate to the Constitution. Next, whether or not we violated any treaty (and which treaties are you talking about?) is a matter of debate. Finally- ya think the US Court of Appeals just might know a teeny bit of Constitutional law? :rolleyes: They ruled the “Incursion” was legal. So sorry, but the Courts (not some poster on the SDMB) have the authority AND knowledge to rule on what is & isn’t Constiutional. Now, I grant that the arguement that the “war” wasn’t Consitutional wasn’t a specious arguement- the Courts did hear it, and ruled on it- rather than throwing it out as “frivolous”. But it has been heard- and the Court ruled the “war” was perfectly Constitutional. Sorry. Thinking that you, as a SDMB poster- have the right and authority to declare something “unconstitutional” when the Courts have already ruled it isn’t, is either Hubris or foolishness. Next- OliverH- no treaty says that we can’t go to war without authorization of the UNSC. You’re just plain wrong here. As to your thought that without ICBMs Iraq could not & would not be a 'clear & present danger" to the USA is also wrong. The Taliban & Bin Laden had no ICMBs, either. The theory was that SH would have or was or had develeoped CBR weapons- ie WMD- and then provided them to terrorists to smuggle into the USA to use against us. Note, I agree we did not prove (and the evidence is poor) that SH was really a danger to the USA in this regard- but certainly he could have been. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 2, 2003, 12:35am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/66 "2003-12-02T00:35:40Z")
I see. So what the treaty really means is that we are not allowed to attack any nation so backward and devoid of technology than they lack any means _whatsoever_ to pose any threat, of any kind, however remote the prospect, and however indirect? “Maybe” and “could someday, perhaps” are quite sufficient grounds for spilling blood. Thiers, of course. This must be of great comfort to Upper Volta and Gabon. Belgium, however, had best watch its step. But why not just concede the point? The war was ill-advised, unnecessary, brutal, and based entirely on justifications that have been proven to have no foundation in fact. But legal. Swell. Peachy. Can’t tell you how thrilled I am. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [December 2, 2003, 12:53am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/67 "2003-12-02T00:53:10Z")
From elucidator > [@](#): > > But why not just concede the point? The war was ill-advised, unnecessary, brutal, and based entirely on justifications that have been proven to have no foundation in fact. I AGREE with all that. On the question of whether its legal or not…well, I think its simply too fuzzy to tell. There are levels and levels here, as I said in my first post. US law…international law…various treaties and how they interact with the Constitution. It seems that there really ISN’T a definitive answer in all this. My best take on it was said much better by DrDeth…the actions were neither legal nor illegal. From DrDeth > [@](#): > > So- now as far as International law goes- the war was neither legal or illegal. If you want to say that Bush’s invasion was “not legal under International Law” you’d be correct. BUT it also means that you can NOT say “Bush’s illegal war”. I can tell you are jumping for joy atm. But then, you knew this was all retoric on BOTH sides…didntcha? 🙂 -XT ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 2, 2003, 1:23am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/68 "2003-12-02T01:23:33Z")
[quote] Treaties are subordinate to the Constitution\*\* Not when they’re ratified by congress. Here let me dispel some of that ignorance for you: > [@](#): > > [US Constitution: Article VI](http://www.law.cornell.edu/constitution/constitution.articlevi.html) > **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, anything in the Constitution or laws of any State to the contrary notwithstanding.** I’ll accept your retraction in advance. 🆒 ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 2, 2003, 1:28am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/69 "2003-12-02T01:28:01Z")
(fixed coding) > [@](#): > > Treaties are subordinate to the Constitution\*\* Not when they’re ratified by congress. Here let me dispel some of that ignorance for you: > [@](#): > > [US Constitution: Article VI](http://www.law.cornell.edu/constitution/constitution.articlevi.html) > **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, anything in the Constitution or laws of any State to the contrary notwithstanding.** I’ll accept your retraction in advance. 🆒 ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 2, 2003, 1:45am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/70 "2003-12-02T01:45:37Z")
Well, that’s kinda vague, **Diogenes**. Doesn’t say anything about when the President thinks its a really, _really_ good idea, or nothing. And “anything…to the contrary notwithstanding”, well, thats open to a lot of interpretation. Could mean lots of things. I haven’t got time right now to point them out to you, but you’re wrong. When I do find the time, you’re gonna feel really stupid. Dumb, dumb **Diogenes** ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 2, 2003, 1:57am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/71 "2003-12-02T01:57:12Z")
Refers to the constitutions of the **states** , not the constitution of the country. It’s easier to understand if you read the whole paragraph: > [@](#): > > 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, anything in the Constitution or laws of any State to the contrary notwithstanding. Sorry, **Dio**. I think you got it wrong. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 2, 2003, 2:00am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/72 "2003-12-02T02:00:50Z")
Oh, BTW. Here’s a simple rule to remember: **Nothing in this country EVER supercedes the Constitution of the US.** Nothing, Nada, Zip, Zilch. Never, Never, Never. A thousands times, Never. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 2, 2003, 2:47am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/73 "2003-12-02T02:47:45Z")
No, Mace. _you_ got it wrong. It refers _the_ Constitution. The big one…and I didn’t say that treaties _supercede_ the Constitution, I said they are _equal_ to it, and they are. The POTUS had no authority to supercede it any more than he could supercede the first amendment. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 2, 2003, 3:04am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/74 "2003-12-02T03:04:40Z")
Legal or not, the effect on our position is the same, isn’t it? The status of our credibility and leadership is as deeply buried in the compost bin whether or not there is or will be a formal document somewhere saying so. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 2, 2003, 3:06am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/75 "2003-12-02T03:06:36Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*No, Mace. _you_ got it wrong. It refers _the_ Constitution. The big one…and I didn’t say that treaties _supercede_ the Constitution, I said they are _equal_ to it, and they are. The POTUS had no authority to supercede it any more than he could supercede the first amendment. \*\* It’s one sentence, **Dio**. It makes no sense if the second reference is to the US constituion. Let’s strip out the middle part and see: “This Constitution… shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” You are claiming that it says: “The US Constitution is the law of the land, anything in the US Constitution notwithstanding.” That’s utter nonsense. This whole paragraph says that the US constitution and US law supercedes State Constitutions and State law. If you need a lawyer to come into this thread to convince you, that can be arranged. And Treaties are not co-eaqual with the Constitution. The Supreme Court could find a treaty, or some aspect of it, to be unconstitutional. It is theoretically possible for Congress to ratify a treaty with Iran part of which required the US to establish Islam as the official religion of the US. In that case, the SCotUS would declare that to be unconstitutional and invalid. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 2, 2003, 3:22am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/76 "2003-12-02T03:22:01Z")
You don’t know what you’re talking about , Mace. Give it up. All treaties ratified by congress are coequal with the US Constitution. Deal with it. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 2, 2003, 3:24am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/77 "2003-12-02T03:24:38Z")
Oh, “Supreme” law of the land MEANS that nothing can supercede it. That’s why it’s _supreme_. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 2, 2003, 3:39am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/78 "2003-12-02T03:39:20Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*You don’t know what you’re talking about , Mace. Give it up. All treaties ratified by congress are coequal with the US Constitution. Deal with it. \*\* No. Treaties are co-equal with Laws. And neither can violate the Constitution. Laws passed by Congress are “the supreme law of the land”, but they can be overturned by the SCotUS if they are found to by unconstitutional. Do you think treaties have some form of constitutional immunity? Are you still going to claim that the second reference to “the Constitution” in Article VI means the US Constitution and not the States’ Constitutions? If so, I’d like to place a little wager with you on it. Or perhaps you’re not quite so sure you know what you’re talking about after all. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 2, 2003, 3:59am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/79 "2003-12-02T03:59:49Z")
No, treaties are coequal with the US Constitution. That’s what “supremacy” means. Yes, reading it more carefully and researching the definition, I see that the Supremacy Clause states that no state law can supercede constitutional law, but the clause also gives treaties _the same weight as constitutional law_. As such, any treaty would have to be repealed by congress before it could be violated. Once again “supreme law of the land” means that there is _no law higher_. ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [December 2, 2003, 4:04am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/80 "2003-12-02T04:04:25Z")
Incidentally, I’m reading this thread with great interest. Just so you all know that I am really interested in the answer. [Previous page](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168.md?page=3) [Next page](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168.md?page=5)