Does the Law Matter?

L. Reichard White, March 30, 2011

The United States (Government) hasn’t been legally at war since September 12, 1945, when the Japanese forces in Southeast Asia surrendered to Allied Commander Louis Mountbatten in Singapore, ending World War II.

And that includes the current action in Libya.

That’s right, the Korean “War,” the Vietnam “War,” the first Iraq “War,” the second Iraq “War” (euphemistically named Operation Iraqi Freedom), and the Afghanistan “War” aren’t wars. At least not according to the U.S. Constitution — which document explains how wars are supposed to happen. This way:

ARTICLE. I. All legislative Powers herein granted shall be vested in a Congress of the United States… Section. 8. The Congress shall have Power… Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water The United States Constitution

The U.S. President doesn’t do it alone. In fact, as founding father James Madison explained, “...the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

So, how did they get us into these non-wars? Maybe this explains it – – –

“I think it is a fact of modern history that declarations of war are gone. I think they are anachronistic. Clearly the Constitution assigns the declarations of war function to Congress and only to Congress. But declaring war has consequences in a technologically advanced world that nobody wants to face. Instead what you do is you call it a police action, as we did in Korea, or you call it something else, but you do not formally take that giant leap of declaring war.” –Rep. Henry Hyde (R-IL), June 7, 1995

The first “war” after WWII, the Korean “War,” was fought without any explicit Congressional authorization what-so-ever, declared and carried out under the auspices of Mr. Harry S. Truman, mostly on his own recognizance. Similarly, in an early iteration of Rep. Hyde’s dictum, even though North Vietnam officially declared war on the U.S., the U.S. never officially declared war on North Vietnam.

Congress wanted to avoid the “giant leap” of declaring war. As per Rep. Hyde above, they wanted to do it by any other name. But, paradoxically, they wanted to do it in a way so they wouldn’t lose their Constitutionally mandated prerogative — so Congress passed The War Powers Act of 1973. Over President Richard M. Nixon’s veto.

In this act, there are three excuses for the President to send U.S. forces into “harm’s way.” It gives three ways and three ways only to a war — or a non-war as the case may be. Specifically (text directly from the document itself):

Section (c), clause 1. a declaration of war, (the Constitutional way –l.r.white)

Section (c), clause 2. specific statutory authorization (Congress passes a specific law –l.r.white)

Section (c), clause 3. a national emergency created by attack upon the United States, its territories or possessions, or its armed forces

Clearly clause 1. and 2. above don’t apply to the Libya what-ever-it-is. That leaves clause 3.

So, did Libya create a “national emergency” for the U.S. by an “attack upon the United States, its territories or possessions or its armed forces?”

No?

Maybe we should give the power elite even more power. Maybe we should let them go to war more easily. Maybe we should replace the War Powers Act with a more wimpy standard and move back toward Truman and the Korean “War.” Maybe, for example, it would be OK to pursue policies that kill folks in foreign lands, if, say, it would somehow be of “vital national interest to the United States.” Maybe, as former Secretary of State Madeline Albright suggested — backed-up by Bill Clinton’s Ambassador to the U.N. Bill Richardson — it should be OK to kill half-a-million Iraqi kids again as long as it was “an instrument of our [U.S. foreign] policy.

But does this Libyan what-ever-it-is even meet this wimpy “vital national interest” standard? Not according to Mr. Obama’s Secretary of Defense Robert Gates. Here’s what he said on ABC’s This Week, March 27, 2011, when questioned by host Jake Tapper – – –

Jake Tapper: Do you think Libya posed an actual or eminent threat to the United States?

Defense Sec. Robert Gates: No. No. It was not, it was not a vital national interest to the United States.

So, according to Defense Secretary Gates, the Libya what-ever-it-is doesn’t even meet the dummed-down “vital national interest” standard, let alone War Powers Act Clause 3 above.

Here’s what Secretary of State Hillary Clinton had to say about such authorizations when she was a U.S. Senator:

“If the administration believes that any, any, use of force against Iran is necessary, the president must come to congress to seek that authority.” –Sen. Hillary Clinton, Feb 14, 2007

Vice President Joe Biden agrees.

The president has no Constitutional authority to take this nation to war against a country of 70 million people unless we are attacked or unless there is proof that we’re about to be attacked. And if he does, if he does, I would move to impeach him.” –Senator Joe Biden, Chris Matthews’ Hardball

But worse, Mr. Obama himself stated, unequivocally,

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Q&A with Charlie Savage, The Boston Globe, December 20, 2007

So current Sec. of State Hillary Clinton, Vice President Joe Biden — and Mr. Obama himself — specifically say Mr. Obama can’t legally or constitutionally do what he just did, send U.S. troops into battle without congressional approval. In this case, in Libya since it didn’t attack the U.S. and doesn’t even qualify as a “vital national interest.” .

Notice that “saving civilians” — in Libya or anywhere else — isn’t an excuse to go to war. If, that is, you believe that 2,000 pound bombs, Tomahawk missiles and other munitions, many of them containing depleted uranium (DU), which may cause cancer for generations, actually will save civilians lives.

And The War Powers Act doesn’t say it’s OK to send U.S. troops because you have allies either.

So, whatever standards you want to apply, Mr. Obama has broken the law. Even he agrees. As Rep. Dennis Kucinich suggests, then, there’s a problem. What should be he says, a big impeachable problem. That is, if The Law matters, if indeed, as regularly mouthed by pundits and other blithering idiots, we have a government of laws, not of men, then Mr. Obama must be impeached.

So, does the law matter? Or doesn’t it? Can the next U.S. President, following in the footsteps of Hitler, Harry S. Truman, Moussolini, Saddam, George H.W. Bush, Bill Clinton, and Barak Obama, etc. go to “war” whenever he or she pleases? Or will Mr. Obama be impeached?

Anybody want to place a bet?

 




22 Responses to “Does the Law Matter?”

  1. The short answer: There is no accounting under Law for The Ruling Class in the U.S.

    There is also the political & cynically calculated element: When the Executive 'goes it alone' Congress has 'an out' and can underhandedly pin all the blame on the Executive while it continues to fund the war(s) … er, I mean … support the troops.

  2. Ha-ha. Good one Mr. White. "Badges? We don't need no stinking badges!"

  3. "Does the law matter?" America has "law?" Really? Well I could imagine maybe 'theoretically' there might be some "law" somewhere. What American presidents practice and our servile Congress subscribes to would be, the expedient. And when that 'expedient' is dressed all fancy with a UNSecCouncil declaration of "humanitarian intervention" well, what a wondrous war it shall be. Oh yeah.

  4. What you REALLY have to understand here, is there is no accountability for the American political class. They can do whatever they want with impunity. They don't have to worry about morality, public opinion or legality. In a just world Bush, Cheney, Rumsfeld, etc, would all be convicted as war criminals. They are all enjoying a safe and wealthy life. Ditto MacNamara and company from an earlier time. His punishment? A plum job at the world bank. Look at Albright with her "its worth it" comment about 500,000 dead kids. What other country would have its public officials say such a thing without massive outrage? The Washingtonian elite never has to give a single thought to being punished or held in any way accountible for its actions. Until this changes, (if it ever does) it will be more of the same….

  5. Rick, this is so good, that I think it could be used as well with another title. Something like …The history of the illegal wars…. This topic is momentarily at hand because of the Prs engaging the USA & NATO in Libyia without consulting any Body, but your article is so much more than that.

  6. Thanks for this. You have saved me days of research. People all over, are screaming to me to shut up, don't I care about helping people out? That is not the point that I am trying to make. You have not only helped me to make my point. You organized the history of these "wars" , and the blatant disregard of law, much better than I could have.

  7. It's slightly different over here in the UK. We don't have a written constitution, per se (at least not one that's codified): we do things via convention and precedent. And not having a written constitution allows us to interpret what action might be suitable or appropriate at the time, given the context and circumstances of the threat/incident faced, without being shackled to potentially out-of-date or out-moded legislation – in short, we can make up our minds on how to respond as and when it suits us.

    Take both WW1 and 2: the first one we declared war on The Kaiser's Germany because, by treaty, we were duty-bound to protect Belgium in the event of anyone invading her (the UK having created Belgium as a nation state in 1830); and in WW2, our treaty was with Poland – and sure enough Germany invaded her, setting us to war on both occasions.

    It's perhaps worth asking the question, and acknowledging, whether every action in the US has to be sanctioned by your constitution – as since it was written and then signed (let alone its many amendments – an indication that it badly needs bringing up to date), the US has signed many bi-lateral and multi-lateral treaties (e.g. joining NATO) which mean that infringement upon these agreements by a third party/parties can automatically place the US on a war footing.

    Just something to think about.

  8. Did Reagan seek or get Congressional permission before he sent US jets to bomb Libya in 1986, after the attacks on the Berlin disco?

    Did Bush jnr seek it, immediately after 9/11, before announcing [on the still smouldering rubble of the Twin Towers], whilst surrounded by firemen and other emergency workers, “I hear ya – and the people who did this will be hearing from us pretty soon, too!”, before sending B-52s to bomb Afghanistan, and putting troops on the ground?

    Did Bush snr seek it before invading Panama in 1989?

    Did Reagan seek it prior to the invasion of Grenada in 1983?

    Did Bush snr seek it when establishing the Iraqi No-Fly Zones immediately after the First Gulf War (1991/2)?

    And lastly, the President doesn’t require Congressional approval for every NATO mission (as is the case today in Libya) in which US military assets are used – Obama has obviously been the polar opposite to all three above named GOP presidents in thinking long and hard about when and if to issue a US military response – and that in the face of hawk/Fox ‘News’ whining. And he's subsequently reduced the US asset presence within the wider UN-mandated NATO action in Libya.

    Anyone care to comment on any of the above?

  9. Hi Mr. Tierney,

    Unlike the British, we Americans, having confronted the business end of government head-on in the First American Revolution, knew, as George Washington pointed out, "Government is not eloquence, it is not reason; It is force. And like fire, makes a dangerous servant and a fearful master." So, the founders wisely tried to bind this dangerous servant with rules. Clearly, that didn’t work, but at least we can point it out when our leaders break the law, which you apparently can’t.

    As far as "updating" the constitution, the founders included a way to do that. I’m just not sure who it is who wants to change laws as basic as "Thou shalt not lightly murder men, women, and children in foreign lands." Or for that matter, freedom of religion and the press, the right of a speedy trial by a jury of your peers, safety from unreasonable searches and seizures, etc. most of which you might recognize from British Common Law, originating with the Magna Carta.

    As for WWI, many of your modern historians agree that it was not only the most devastating war your country was ever involved in but also a grave political error that it ever happened in the first place. And, of course, without WWI, Hitler would never have come to power and WWII wouldn’t have happened. Perhaps a few rules on going to war might serve you well?

  10. Yes, indeed, Mr. Tierney, I’ll comment.

    Not only were many of the "interventions" you mention strictly unconstitutional by U.S. Law, all but, possibly, Bush Jr.’s attack on Afghanistan were also blatant violations of international law. And they were also what most folks would consider immoral, not to mention counter-productive.

    All presidents violating the Constitution they swore to protect should be tried for treason, and those who violated international law, George W. Bush, for example, should be tried as war criminals — which is in process to some degree. This includes Reagan for Grenada, but, unfortunately, he’s dead, and Bush senior for Panama. It’s not yet too late for him.

    It’s time "we the people" put an end to these frivolous wars. The way to do that is to hold the leaders who declare them responsible for their actions. Like Pinochet nearly was in your country for depredations against his own people. Maybe G.W. Bush will be the object lesson. Perhaps Mr. Obama.

    And let’s not forget things like Mr. Clinton’s attack on the fertilizer plant in Algeria either. AND the NATO (nearly completely U.S.) bombing attack on Serbia.

    So, what are the British people going to do about Tony Blair, clearly complicit with Mr. G.W. Bush in lying our countries into killing hundreds of thousands of innocent men, women and children in Iraq?

  11. Dear Mr Obama. Can you please explain how it is ok to kill, maim and traumatize thousands of innocent civilians, and get away with it, yet a woman goes to jail for 10 years for getting a dollars change from her son to buy a small bag of cannibas. And please explain why most of your folk don't see a problem with this. Even scream for more blood.

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  14. Very happy to see your article, I very much to like and agree with your point of view.

  15. Hi Mr. Tierney,

    Unlike the British, we Americans, having confronted the business end of government head-on in the First American Revolution, knew, as George Washington pointed out, “Government is not eloquence, it is not reason; It is force. And like fire, makes a dangerous servant and a fearful master.” So, the founders wisely tried to bind this dangerous servant with rules. Clearly, that didn't work, but at least we can point it out when our leaders break the law, which you apparently can't.

    As far as “updating&amp” the constitution, the founders included a way to do that. I'm just not sure who it is who wants to change laws as basic as "Thou shalt not lightly murder men, women, and children in foreign lands." Or for that matter, freedom of religion and the press, the right of a speedy trial by a jury of your peers, safety from unreasonable searches and seizures, etc. most of which you might recognize from British Common Law, originating with the Magna Carta.

    As for WWI, many of your modern historians agree that it was not only the most devastating war your country was ever involved in but also a grave political error that it ever happened in the first place. And, of course, without WWI, Hitler would never have come to power and WWII wouldn't have happened. Perhaps a few rules on going to war might serve you well?

  16. Yes, indeed, Mr. Tierney, I'll comment.
    Not only were many of the "interventions" you mention strictly unconstitutional by U.S. Law, all but, possibly, Bush Jr.'s attack on Afghanistan were also blatant violations of international law. And they were also what most folks would consider immoral, not to mention counter-productive.
    All presidents violating the Constitution they swore to protect should be tried for treason, and those who violated international law, George W. Bush, for example, should be tried as war criminals — which is in process to some degree. This includes Reagan for Grenada, but, unfortunately, he's dead, and Bush senior for Panama. It's not yet too late for him.
    It's time "we the people" put an end to these frivolous wars. The way to do that is to hold the leaders who declare them responsible for their actions. Like Pinochet nearly was in your country for depredations against his own people. Maybe G.W. Bush will be the object lesson. Perhaps Mr. Obama.

    And let's not forget things like Mr. Clinton's attack on the fertilizer plant in Algeria either. AND the NATO (nearly completely U.S.) bombing attack on Serbia.
    So, what are the British people going to do about Tony Blair, clearly complicit with Mr. G.W. Bush in lying our countries into killing hundreds of thousands of innocent men, women and children in Iraq?

  17. I think you'll find that we've hauled Tony Blair, and his successor, Gordon Brown, in front of (now) three parliamentary committees to answer for their time in office, vis-à-vis the 2003 Iraq War – and this in complete contrast to the US, where no one from the GW Bush administration has ever so much troubled by justifying their actions regarding same, and probably never will be.

  18. As as revisionist screeds go, that's quote impressive.

  19. A good start, Mr. Tierney, a good start!

  20. I'm glad you like it, Mr. Tierney — and as far as "revisionist,"

    1. What exactly does it revise?

    2. Why shouldn't whatever it revises be corrected?

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