I thought that it was well past time that we took a look at this sucker: HR 4655, The Iraqi Liberation Act of 1998. This is either an inconvenient spike in the wheel for the BDS sufferers, or else an irrelevant side issue that doesn’t say what the warmongers claim it says, depending on who you ask.
It all depends on what you concentrate on: the passage that states that it “should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime”, or the method by which said efforts are to be carried out (which generally speaking pretty explicitly do not include military action, except for a few specific authorizations). Generally speaking, this law has been overshadowed by the Congressional authorization* of force in 2002 – and all of the ramifications thereof – but it’s handy to remember that, rhetoric to the contrary, removing Hussein has been a bipartisan concept for quite a while.
Moe
*Oh, and for the record, the phrase “as he determines to be necessary and appropriate…” puts one half of the nails in the coffin of the This Invasion Was Illegal Meme, and the fact that the UNSC cannot condemn gum-chewing with a binding resolution without our (and the other four veto powers’) express permission provides the other half. I’m sure it must be annoying to some, but that’s the way it goes. I get annoyed when I see it dragged into every single political conversation, germane or no: do you see me complaining?
Well, OK, I guess I just did. Clean slate, then.
Oh, and for the record, the phrase “as he determines to be necessary and appropriate…” puts one half of the nails in the coffin of the This Invasion Was Illegal Meme
No, it doesn’t. It doesn’t even address it. If Congress passes a resolution that establishes a policy of collective reprisal against civilians, does that mean it is no longer a violation of the Fourth Geneva Convention simply because Congress has authorized it?
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. – Constitution of the United States of America, Article VI
When the President of the United States acts in violation of the UN Charter or the Geneva Conventions, he’s not just indicating a disdain for international law–he’s acting unconstitutionally.
Irrelevant in this particular case, Catsy: we engaged in this particular war to support existing UNSC resolutions. If we acted incorrectly, I’m sure that the UNSC will correct us. What, they can’t?
Funny, that.
I repeat: not even a resolution condemning gum-chewing. Or our interpretation of events.
Irrelevant in this particular case, Catsy: we engaged in this particular war to support existing UNSC resolutions.
I’m surprised to hear that from you. Does it not strike you as… well… a bit of an /obvious/ contradiction to claim that we defied the UN in order to enforce UN resolutions?
S/RES 1441 does not authorize military action. It /threatens/ it–but this is not at all the same thing as establishing a trigger for action in the face of noncompliance. If 1441 had authorized military action against Iraq, there would have been no pressure for the UN to return for a second resolution authorizing precisely that. But there was–and it is telling that the US /refused/ to take the matter before the SC.
If we acted incorrectly, I’m sure that the UNSC will correct us. What, they can’t?
No more than they can correct Israel or Turkey for their reams of violations.
Come on, Moe, you’re more honest than this–do you seriously think the US would not have vetoed any UNSC resolution condemning the Iraq War, /even if a supermajority voted for it/? It wouldn’t be the first time–the only permanent council member to use its veto power to protect its interests from criticism more often than the US was the Soviet Union during the 40s and 50s.
“I’m surprised to hear that from you.”
Likewise. I am a Righty, after all: our issues with the day to day aspects of the United Nations are fairly notorious.
“Does it not strike you as… well… a bit of an /obvious/ contradiction to claim that we defied the UN in order to enforce UN resolutions?”
Considering that I don’t consider the UN to generally even live up to its own good intentions without a good kick to the ass? Not particularly.
(snip)
“Come on, Moe, you’re more honest than this–do you seriously think the US would not have vetoed any UNSC resolution condemning the Iraq War, /even if a supermajority voted for it/?”
Well, yeah, of course we’d veto. That’s why we and the other four veto powers have the blessed things, after all. Look, let’s save some time: the UN got something right with their first reaction to the Kuwaiti invasion, but everybody basically screwed the pooch since then, starting with that idiot Bush I and his stupid incitement to revolution that he had no intention of supporting. Good resolutions were passed, but nobody was enforcing them until now.
And I have no problem with making sure that this particular deed of ours goes unpunished. 🙂
I’m not one of those people who really cares about whether the invasion was illegal or not. I look at the question of whether to invade pragmatically: will it (and the opportunity cost associated with it) make America safer, on balance? My Jeffrey Record-esque views as to the answer are well known here.
With that out of the way, I wonder if the 1998 Clinton thing wasn’t so much an expression of Clinton policy as it was a way to cover his right flank.
Catsy,
Resolution 1441 reaffirms the authorization provided in Resolution 678 for member states to take “any necessary means” to enforce all subsequent resolutions pertaining to Iraq. UNSC repeal of that provision of 678 on would be needed to result in the “illegality” – and not likely to happen as long as the US and the UK have veto power.
“With that out of the way, I wonder if the 1998 Clinton thing wasn’t so much an expression of Clinton policy as it was a way to cover his right flank.”
Possibly. Not that he should have had to. I generally sympathize with Clinton over the (inherited) mess that he was in re Iraq; the no-fly zones were probably about the only useful thing that he could have realistically been allowed to do under the circumstances.
Not that he was completely innocent on this, either.
You know, sometimes in my dreamier states I wonder if all of these international problems wouldn’t go away if the hard right and left in each country just stopped being so crazy.
Take the India/Pakistan situation, for instance.
I can imagine the meeting between Vajpayee and Musharraf proceeding along these lines:
Vajpayee
Dude, sorry about those assassination attempts. Those rightwing fundamentalists sure are crazy, huh?
Musharraf
Yeah, but they really go nuts about this whole Kashmir thing.
Vajpayee
I know, so does my hard right. I’m really sorry about that whole thing with the temple.
Musharraf
Yeah, that was a bitch. So, back to Kashmir–if I don’t keep turning a blind eye to the nutjobs in ISI, they’ll kill me! I know my private security force has a mole.
Vajpayee
Well, I’d give you some conscessions or something, by my right wing would throw up a vote of no confidence in no time!
Musharraf
OK, let’s think of some symbolic maneuvers that satisfy everybody and nobody at the same time.
Vajpayee
It’s a deal!
Catsy, you keep coming back to that bit about treaties in the Constitution. Unfortunately, it isn’t quite that simple, although I’m not a lawyer, and don’t have the sort of grounding in Constitutional issues that von or Katherine might have. I have, however, read some folks discussing the subject here, by Donald Sensing, and here, by the Constitution Society, and here, by George Detweiler.
Essentially, they all refer to what you’re putting forth as the “Dulles doctrine”, as put forth originally by John Foster Dulles, but which seems to have been contradicted by the Supreme Court in Reid v. Covert, saying among other things that…
All the cites I gave discuss at some length the views of the Founders on the question, and they all seem pretty clear that treaties may not be used to fundamentally alter the powers granted by the Constitution, and among those is the power to make war. To quote Alexander Hamilton, “The only constitutional exception to the power of making treaties is, that it shall not change the Constitution…. On natural principles, a treaty, which should manifestly betray or sacrifice primary interests of the state, would be null.”
Chief Justice John Story, writing in the 19th century, wrote that
It seems pretty clear to me that at least the section of the UN Charter that pertains to the power to make war should be considered null and void, at least as far as the US is concerned. There are, of course, political issues surrounding the subject (as we’ve all seen), but that has nothing to do with it being constitutional — just unpopular.
If you’d like to try to get the Congressional authorization of force overturned on Constitutional grounds… well, good luck, but I think you’re about as likely to succeed as those people who try to get the income tax repealed.
Moe, the fact is that according to the UN Charter, only the Security Council can authorize war. It is not up to any individual member of the UNSC to decide unilaterally that “Oh, that country is breaking UN Resolutions – I’ll invade it!” That is, the US is breaking the law when it invaded Iraq under the claim that it was doing so to “enforce UN resolutions”, just as Syria would be breaking the law if it got together a “coalition of the willing” and invaded the Occupied Territories to remove the illegal Israeli settlements and tear down the “security fence”.
Now, you may feel that as the Israeli settlements are illegal and that Israel is in defiance of UN resolutions and therefore Syria in fact ought to be mustering forces to invade the Occupied Territories. That is certainly your argument here.
But for myself, while I agree that Israel’s continued defiance of the UN and longterm breach of the Geneva Conventions ought to be remedied, I do not feel the solution is for one country to invade, no matter how much illicit support that country could drum up in a “coalition of the willing”: just as I didn’t feel that was the right solution in Iraq.
But this is the argument you’re making: that Syria is entitled to invade Israel.
Not a straw man, Moe. You are arguing that if a country is in defiance of UN resolutions (as Israel is) and if the UNSC is not enforcing those resolutions (as it is not) then an individual member of the UNSC (as Syria is) is entitled to get together a “coalition of the willing” and invade to enforce those resolutions.
Section VII versus Section VI resolutions, Jes.
And don’t put words in my mouth.
You make an excellent point about the /moral/ comparison of Syria & Coalition vs. US & Coalition, Jes, but I have to agree with Moe here. None of the resolutions against Israel authorize the use of force–that only happens with clear and explicit authorization under Section VII.
By contrast, several of the GW1-era resolutions /do/ authorize the use of force under Section VII. Where Moe and our President get it wrong is in assuming that when 1441 “recalls” the “expired” resolutions authorizing force it is in fact re-authorizing same. This is incorrect. This was not the intention of the Security Council–and if you question that, then ask yourselves why the SC would require the US to return for another vote to authorize force /if force were already authorized/.
If you’d like to try to get the Congressional authorization of force overturned on Constitutional grounds… well, good luck, but I think you’re about as likely to succeed as those people who try to get the income tax repealed.
You make a compelling argument for the constitutionality of the Iraq War. I may have to revise my position. What concerns me is that–if taken to to their logical conclusion–these rulings would effectively nullify the requirement of the US to abide by /any/ treaty whatsoever as long as Congress passes a law or resolution which contradicts them.
First of all, doesn’t this give Congress an uncomfortable degree of power to effectively abrogate treaties which a past president has signed and a past Congress has ratified?
Second of all, what can we project the consequences on international law to be when the most powerful country in the world can decide to disregard it when it sees fit? I really don’t think a lot of people have thought through the consequences of the precedent we are setting: that our obligation to abide by treaties and conventions of international law to which we have agreed stops when we decide it is in no longer in our interest. This precedent is a recipe for chaos in the world.
First of all, doesn’t this give Congress an uncomfortable degree of power to effectively abrogate treaties which a past president has signed and a past Congress has ratified?
Yup. Congress can also go back and remake laws as it sees fit (within the bounds of the constitution, of course). The fact that they don’t do so, and that they see value in keeping to established laws and precedents, speaks to their collective wisdom, and to the wisdom of the Founders in designing our system.
It also gives the people of the US an ability to abrogate treaties by passing Constitutional amendments, although that’s much harder to do.
Second of all, what can we project the consequences on international law to be when the most powerful country in the world can decide to disregard it when it sees fit? I really don’t think a lot of people have thought through the consequences of the precedent we are setting: that our obligation to abide by treaties and conventions of international law to which we have agreed stops when we decide it is in no longer in our interest. This precedent is a recipe for chaos in the world.
Welcome to the wonderful world of sovereignty, brought to you by the fine people behind the Treaty of Westphalia (among others, of course). We have established openly that the US will always retain an ultimate veto over anything involving us. Everyone who studies us should be aware of that fact, and should be guided in their decisions regarding us by it. If matters of state are to be conducted, they must do so in a way that convinces the chosen representatives of the US that the best interests of the US are being served… that is, if you want the US to sign on to those matters.
If there is a broader principle that needs to be served, convince us that it is in our interest to do so. Obtain our consent. Seek our advice. Heed our counsel. It is the job of the government of the US to serve the interests of its citizens, so don’t be surprised if it obstructs you in any efforts that aren’t serving those best interests.
“We the people, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
The whole point of having individual nations is that groups of people get to make sure that their own interests are served. That sometimes makes “international law” difficult to create or to enforce, especially because much of it is pushed by one group or another with its own agenda, and these groups don’t understand (or agree with) what motivates other groups.
If you want to make it impossible for the US to abrogate treaties, get a Constitutional amendment passed — they got one passed for Prohibition, after all. Just be prepared for the kind of backlash that happened after that was passed, and recognize that the people might just change it back if they don’t like the results.
It seems pretty clear to me that at least the section of the UN Charter that pertains to the power to make war should be considered null and void, at least as far as the US is concerned.
IMHO, Michael N., this isn’t exactly accurate. It’s an area where scholars probably can (and certainly do disagree), but my understanding of the general constitutional framework is that treaties, if ratified appropriately, are co-equal with the Constitution so long as they deal with foreign affairs. (For instance, a treaty solely purporting to abrogate the First Amendment wouldn’t stand.)
Essentially, one argument is that the US can’t break its word to another nation based on the Constitution, so long as the matter involved doesn’t affect the individual rights of US citizens. (There’s some pragmatic reasons why this might be good public policy.) I’m dimly recalling a case concerning the migration of birds/pollution/somesuch that deals with the issue, but its been far too long.
Note that the foregoing is all IIRC/IIUC, and there’s almost certainly another side to it that I’m mis/not remembering.
Well, I wanted a legal-oriented person to look at this, so I thank you for doing so, von. 🙂
It seems to me, though, that a treaty that removes a power from Congress, no matter if it has to do with foreign affairs or not, is essentially overriding or amending the Constitution, and there’s a process for that which is significantly more difficult than just ratifying a treaty. I’ve run across several people quoting James Madison saying,
or Alexander Hamilton saying,
There’s also my earlier quote from Chief Justice Story that seems pertinent. A lot of this ties into things like the International Criminal Court and the Kyoto Protocol, so I wish I did know the definitive answers.
Unfortunately, I can’t afford to retain counsel to research the matter properly, so I’ll just have to make do. 🙂