# 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:** 5
**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, 4:14am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/81 "2003-12-02T04:14:49Z")
**DtC** : Perhaps we are arguing semantics on the “supreme law” thing. I will certainly agree that **at any fixed point in time** the Constitution, the laws and the treaties are co-equal. But if we look at what happens **over time** , the Constitution is above everything. What happens when a law is found to be in conflict with the Constitution? If they were truly co-equal, we’d be at an impasse. But what happens is that the law is struck down, in deference to the Constitution. If you want to call that co-equal, then there really isn’t any point in our debating further. We simply define “co-equal” to mean two different things. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 2, 2003, 4:23am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/82 "2003-12-02T04:23:17Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*Incorrect. Congress, like the prez, was bound by a ratified treaty. They did not have the authority to give the prez the authority to prosecute a war of aggression. \*\* I disagree. This is a much more vague area, but here’s my take on it. As actual lawyers who know much more about this than I do have explained to me, if there is a conflict between laws or between treaties and laws, there are several legal devices used to determine which should be considered authoritative. As I understand it, the first test is that to the maximum extent practicable, laws and treaties shall be viewed so as not to conflict with each other. If this proves impossible, we move on to other legal principles. (Keep in mind that we are now looking at this as a matter of US constitutional law, as opposed to international law.) Next, the specific is judged to trump the general. (I’m told this is the Charming Betsy principle – I love that name.) In this case, the UN Charter – a ratified treaty which is the supreme law of the land, as has been noted, makes a general statements as to the “rights” of the United States to engage in self defense and war. However, Congress comes along and passes a specific statute saying that in the case of Iraq, military action is justified. The specific (use of force resolution) trumps the general (UN Charter). The other test is the later in time principle: whichever law is enacted or treaty ratified most recently is viewed to be authoritative. So, for the purposes of the war power of Congress, the Legislative Branch was well within its authority to authorize a war. As I wrote earlier, the constitutionality of the use of force resolution does not somehow mean that the actions of the United States were somehow acceptable by international law. But all of this guises a more simple problem: it was downright stupid for Congress to pass a use of force resolution so far ahead of when the actual conflict with Iraq could reasonably be expected to come to a head. A much more responsible course would have been the approach used in 1990/1991, when Congress only voted after a UN resolution had passed, after diplomacy had clearly reached an impasse, and shortly before military action seemed likely. Oh, yeah, and a month after an election. And since this seems to have been brought up several times, I don’t think it makes one whit of difference whether or not WMD are found in Iraq after the war. The essential issue, under international law, was whether the US was under an imminent threat of attack that required immediate and preemptive action. Unless we discover that Iraq was, indeed, planning a massive attack on the United States on March 21, the mere presence of certain objects in Iraq is really of no consequence whatsoever to the question at hand, which is the issue of _threat_. ---
**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, 4:26am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/83 "2003-12-02T04:26:55Z")
We’re not that far apart, **John**. I think that if a treaty could be found in conflict with the US Constitution it might conceivably be struck down but I think it would have to be done by the SCOTUS, not by the POTUS. Determination of constitutionality is done by the judicial branch, after all. A treaty could be repealed by Congress (just like an amendment could be) without necessitating any Constitutional review but neither of those things happened here. ---
**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, 4:27am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/84 "2003-12-02T04:27:18Z")
You guys might find [this](http://mdn.mainichi.co.jp/news/archive/200205/21/20020521p2a00m0oa025000c.html) site helpful. As you will see, its not a cut and dry question. Sorry DtC, but its no where near as easy as you are making it out to be. Appearently the legal types have been debating this very subject for almost the entire history of the republic. From Squaring the Constitution with international treaties > [@](#): > > Ever since the Constitution was enacted, scholars of constitutional and international law have been trying to square the Constitution with international treaties, and debating which should prevail. From Squaring the Constitution with international treaties > [@](#): > > At times, the courts have been called upon to weigh in on the debate. In the famous Sunakawa Incident, Tokyo District Court Judge Akio Date declared as unconstitutional the Japan-U.S. Security Treaty, which provided for the stationing of U.S. forces in Japan, ruled that U.S. forces, which constituted war potential, violated the war-renunciation clause of Article 9, and found defendants who had been arrested for trespassing on Tachikawa Air Base not guilty. > > … > > Prosecutors conceded that Article 81 gives the Supreme Court the power to review the constitutionality of any law, but argued that treaties are not mentioned in this article, and thus are not subject to judicial review. The verdict was appealed directly to the Supreme Court, which overturned the lower court decision in December 1959, declaring that the Security Treaty was highly political, and thus unsuitable to judicial review unless its unconstitutionality is blatant. > > … > These diametrically opposing verdicts share the common assumption that Japan should not sign treaties which clearly violate the Constitution because judicial review would become moot if treaties were always given precedence. Blah blah blah… I’m not going to even pretend to understand half of this. Not only that, I found something on the order of 10 other web sites with MORE bullshit on this. I figure that we will need one of the legal beagle to decifer all this stuff…all I know is, its not as cut and dry as you are trying to make it out DtC. Personally I’d give up on this tack, and go with the international angle…but thats just me. -XT ---
**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, 4:38am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/85 "2003-12-02T04:38:41Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > We’re not that far apart, **John**. I think that if a treaty could be found in conflict with the US Constitution it might conceivably be struck down but I think it would have to be done by the SCOTUS, not by the POTUS. Determination of constitutionality is done by the judicial branch, after all. A treaty could be repealed by Congress (just like an amendment could be) without necessitating any Constitutional review but neither of those things happened here. Yes, it sounds like we’re pretty much on the same page. Of course, the President can’t declare a treaty to be unconstitutional. And the SCotUS could, but would only do so if the treaty were challenged-- it doesn’t just act on it’s own. Not to nit-pick this to death, but Congress can’t repeal an amendment-- if you mean an amendment to the Constitution-- in the way it can repeal a treaty. But I’m sure you know that. **XT** : Not sure I’d rely on Japanese case law to determine what the US would or should do. In fact, I’m actually sure I wouldn’t. ---
**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, 4:43am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/86 "2003-12-02T04:43:41Z")
Didn’t Congress repeal prohibition? That was an amendment. ---
**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, 4:45am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/87 "2003-12-02T04:45:30Z")
Actually, strictly speaking, I guess Congress doesn’t make or repeal amendments by itself, it still requires ratification by the states. So I see what you mean. Never mind. ---
**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, 4:49am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/88 "2003-12-02T04:49:36Z")
You’re right, **XT**. It _is_ pretty murky. I would still contend that it was at least irresponsible for the POTUS and for Congress (including all those spineless Democrats) to disregard the UN Charter and I would still contend that it violated _international_ law (such as it is). ---
**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, 7:14am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/89 "2003-12-02T07:14:05Z")
No. No question about it, It’s a candy mint. No other conclusion is possible. ---
**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, 3:46pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/90 "2003-12-02T15:46:21Z")
You are probably right John, DtC. As is obvious, IANA Lawyer, nor do I play one on TV. The cite I brought up…well, I had hoped it would help, as it showed Japans interperetation of how our Constitution would effect international treaties. However, on reflection…I have no idea. I’ll withdraw it and myself from the discussion…this stuff is frankly over my head. 🙂 My parting shot will be that, in my own mind, I think that the actions the US took were not legal in the strick sense of international law. However, they weren’t illegal either…they were kind of in the limbo land that seems to inhabit international/constitutional law. More and more I’ve come to realize that going into Iraq was simply a stupid thing to do. Whether it was legal or not, it was STUPID to do. I was never too keen on it in the first place, but for various reasons I won’t get into again, I now think it was absolutely stupid for us to commit so much force and money (not to mention lives) there when it wasn’t necessary. Reguards…thanks for a great discussion, XT ---
**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\ **Post date:** [December 2, 2003, 3:51pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/91 "2003-12-02T15:51:29Z")
> [@](#): > > \*Originally posted by John Mace \* > \*\*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? > \*\* The problem is that that is really quite irrelevant to the case in point. The treaties at issue are active US law. ---
**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\ **Post date:** [December 2, 2003, 3:56pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/92 "2003-12-02T15:56:30Z")
> [@](#): > > \*Originally posted by Ravenman \* > \*\*I disagree. This is a much more vague area, but here’s my take on it. > > As actual lawyers who know much more about this than I do have explained to me, if there is a conflict between laws or between treaties and laws, there are several legal devices used to determine which should be considered authoritative. > > As I understand it, the first test is that to the maximum extent practicable, laws and treaties shall be viewed so as not to conflict with each other. If this proves impossible, we move on to other legal principles. (Keep in mind that we are now looking at this as a matter of US constitutional law, as opposed to international law.) > > Next, the specific is judged to trump the general. (I’m told this is the Charming Betsy principle – I love that name.) In this case, the UN Charter – a ratified treaty which is the supreme law of the land, as has been noted, makes a general statements as to the “rights” of the United States to engage in self defense and war. However, Congress comes along and passes a specific statute saying that in the case of Iraq, military action is justified. The specific (use of force resolution) trumps the general (UN Charter). > > The other test is the later in time principle: whichever law is enacted or treaty ratified most recently is viewed to be authoritative. > > So, for the purposes of the war power of Congress, the Legislative Branch was well within its authority to authorize a war. \*\* Sorry, but you overlooked a bunch of other factors in this case. The UN charter also obliges members to abide by its statutes. As such, passing a law which ‘supercedes’ the ban on violence is a violation in itself of the UN charter. Lastly, if the newer law is authoritative, it invalidates the older. Which would mean that by passing the law, Congress repealed the UN charter. There is no way for Congress to pass a statute that constitutes a breach of the UN charter and still conform with the UN charter, NOT JUST on the issue the law is passed on. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 2, 2003, 4:53pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/93 "2003-12-02T16:53:45Z")
The UN Charter says nothing about the constitutional processes by which a state may authorize the use of military force. It speaks only to the _application_ of military force by a state. Although this is not exactly cut-and-dried, one could read the UN Charter as being strictly hands-off as far as domestic matters are concerned – witness Article 2, Clause 7: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state…” The constitutionality of a use of force resolution is clearly a matter of domestic law. Reading the general thrust of the Charter, I can’t see how general prohibition on the _actions_ of a state could be read to prohibit a country’s legislature from exercising the sovereignty clearly given to it by its own constitution (to pass a use of force resolution or any other legislative action). If you can point me to something in the UN Charter which forbids a state’s legislature from passing certain types of legislation, let me know. But in my reading, the UN Charter only concerns itself with the actual _application_ of military force by a state, not the domestic constitutional processes by which a country may move toward that end. In short, I just don’t think that the UN Charter is an attempt to amend the US Constitution. Rather, it is a code by which the United States has bound itself in its conduct of international relations (and which, as I have stated before, it has failed to uphold with respect to Iraq). ---
**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\ **Post date:** [December 2, 2003, 7:38pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/94 "2003-12-02T19:38:09Z")
> [@](#): > > \*Originally posted by Ravenman \* > \*\*The UN Charter says nothing about the constitutional processes by which a state may authorize the use of military force. It speaks only to the _application_ of military force by a state. > > Although this is not exactly cut-and-dried, one could read the UN Charter as being strictly hands-off as far as domestic matters are concerned – witness Article 2, Clause 7: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state…” \*\* That talks about the UN intervening. It doesn’t talk about the member state voluntarily (by ratifying the charter) restricting the freedom of action of their legislature. The fact that the UN will not intervene until such decision is actually carried out is a measure of respect for the individual sovereignty. That sovereignty, however, ends at the member nation’s borders. > [@](#): > > \*\* > If you can point me to something in the UN Charter which forbids a state’s legislature from passing certain types of legislation, let me know. But in my reading, the UN Charter only concerns itself with the actual _application_ of military force by a state, not the domestic constitutional processes by which a country may move toward that end.\*\* Article 2 lists the principles of the UN. Among them are: > [@](#): > > All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. > > All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. > > All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 2, 2003, 8:49pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/95 "2003-12-02T20:49:25Z")
…all of which says nothing about a prohibition the legislature of a state from investing certain powers in its chief executive. ---
**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, 9:15pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/96 "2003-12-02T21:15:46Z")
The Chief Executive still has no authority to violate the UN Charter no matter what his domestic powers are. That’s like saying that Saddam Hussein had the legal authority within Iraq to invade Kuwait, therefore the invasion of Kuwait was legal. The US _as a nation_ is still bound by an international treaty under international law. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 2, 2003, 9:39pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/97 "2003-12-02T21:39:17Z")
\*\*DtC[b/] - That is exactly my point! Just because an invasion is contrary to international law, it does not necessarily follow that domestic laws were broken in the process. Recap: Bush was (stupidly) given the authority to go to war by legal means by US laws, and the US launched an invasion contrary to both treaty law and customary international law. ---
**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\ **Post date:** [December 2, 2003, 10:11pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/98 "2003-12-02T22:11:07Z")
> [@](#): > > \*Originally posted by Ravenman \* > \*\*…all of which says nothing about a prohibition the legislature of a state from investing certain powers in its chief executive. \*\* Once more: “All Members …, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.” ---
**Author:** ![New\_Iskander](https://avatars.discourse-cdn.com/v4/letter/n/db5fbb/32.png) [@New\_Iskander](https://boards.straightdope.com/u/New_Iskander)\ **Post date:** [December 2, 2003, 10:12pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/99 "2003-12-02T22:12:57Z")
> [@](#): > > \*Originally posted by Airman Doors, USAF \* > **…my take on the whole situation is that while unpopular with many people, this war was as legitimate as any other that we have fought… It’s all nice and legal as far as I can tell.** Certainly as legitimate as WWI, Vietnam, Grenada, Panama, Somalia and Kosovo (vague distant danger given as justification). Certainly less legitimate than WWII (direct attack on US). Probably more legitimate than wars with Mexico and Spain (land grabs). To call someone’s actions “legal” or not doesn’t require a court verdict. When a car runs a red light, anyone can say it’s “illegal”, anyone knows that selling drugs is “illegal”, etc. The right of any citizen to stand up and accuse anybody of doing something “illegal” has to be held sacred. So if some esteemable left-leaning people here insist on calling Iraq invasion “illegal”, let 'em. Now, as far as their _justification_, US Constitution certainly wasn’t violated, so there is no basis to the charge there; UN chapter wasn’t followed, so one can say that Iraq invasion was “illegal” in that respect. Incidentally, isn’t it ironic how lefties suddenly emphasize “the principle of legality” to condemn the war (and righties emphasize “good intentions” to support it)? Apparently, if only France, Germany, Russia and China voted for invasion, everything would be “legal”. A question to esteemable left-leaning people here: if Bush (the Satan) would secure agreement with Shroeder (sold-out Socialist), Chirac (right-wing crook), Putin (KGB) and Chinese (Maoists), would that make Iraq invasion perfectly legitimate? ---
**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, 11:25pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/100 "2003-12-02T23:25:16Z")
Nope. But it would have made it legal. [Previous page](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168.md?page=4) [Next page](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168.md?page=6)