The debate over what should be done about the risk that Iran might be developing nuclear weapons is likely to continue regardless of the specific outcome of recent negotiations. That a possible future failure of these negotiations could lead to war is dubiously legal, under both national as well as international law. Certainly, Iran's refusal to abide by Security Council Resolutions to cease uranium enrichment is not a matter to be taken lightly. Its conduct demonstrates a callous disregard for international order and the UN Charter itself. However, upturning national and international law to address Iran's misconduct must remain off the table.
The most important contribution to international order and national governance made by the United States remains the rule of law. Our country was founded on a secular Constitution, and from that document our legitimacy arises. Reference to God does not even exist in that exalted instrument. This is different from Iran or Israel, both of which have leading political figures asserting divine origins for state authority; Iran has more formally institutionalized this narrative. As Americans we must analyze any use of force which would constitute an act of war through the lenses of domestic and international law. No one could possibly argue that bombing a sovereign nation is not an act of war.
Article I of the Constitution declares that the president must have a permission slip from the Congress to start a war. But permissions slips do not stop there. Article VI of the Constitution makes treaties the Supreme Law of the Land. The UN Charter is such a treaty. Not only our word and our honor require adhering to its terms, but the very basis of our system of government, the rule of law itself, requires adherence to its terms.
Nothing can so erode confidence in the proper use of power by the strongest nation in the world than failure to adhere to the rules that we have agreed should be binding on all States.
The United Nations Charter was drafted largely under American leadership and by Americans. As a treaty it is was duly ratified by the Senate. Under the Charter's terms, force is only authorized under Article 42, pursuant to a Security Council authorization, or Article 51, confirming the inherent right of self-defense of all States. Under international law, the pre-emptive use of force can be justified if there is an imminent threat causing a need for action that is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.
The case for the use of force against Iran has not been made by any nation in the Security Council, nor has the case been made that it poses a threat that is imminent, leaving no alternative means to address it.
Our founding fathers knew that because people make mistakes, checks on power are necessary. The complexities arising from our system of checks and balances are intentionally legally mandated. They are not optional. We should be very alarmed that these restraints on action are being ignored in the current public debate. Not one candidate for president, for example, has even mentioned this fact in the debates. These restraints were not honored fully by the Bush administration in prosecuting a war in Iraq, and we are suffering deeply from this mistake.
John Adams repeated that "jealousies and rivalries have been my theme, and checks and balances as their antidotes, till I am ashamed to repeat the words." The Federalist essays written to flesh out the logic of the Constitution are a masterpiece of political insight on the dangers of unchecked quests for power and emotionally-driven policies. Its authors remind us that our human frail condition renders us "remote from the happy empire of perfect wisdom and perfect virtue." Such warnings of the abuse of unbounded power informed great thinkers as far back as Aristotle and Cicero, and those who directly influenced the creation of America, such as Locke and Montesquieu, and they must inform us today as well.
When only military analysts govern policy the potential for abuse of power is high. Bring in the lawyers. We ignore the wisdom of our founding fathers at our peril.
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Title: SANCTIONS ARE A CRUEL AND UNUSUAL PUNISHMENT
Link: http://deyanbrashich.com/home/2012/4/10/sanctions-are-a-cruel-and-unusual-punishment.html
Excerpt: Iran hell bent on joining the nuclear club of nations is forging ahead with its nuclear program. Additional economic sanctions have been imposed on the Islamic Republic of Iran. Iran has just been dealt the death card.
The United Nations Security Council lead by its permanent members, China, France, Russia, the United Kingdom and the United States, with other countries blindly compliant, has declared economic sanctions as the best and only diplomatic alternative to war. That is a lie. It is not a viable alternative. Economic sanctions are the callous, cowardly mass murder of a civilian population.
“Economic sanctions” is when a bunch of countries gang up on another run by a crackpot, a Khadafy, a Hussein or, in Iran’s case Mahmoud Abimadinejad, seeking to coerce an innocent population to depose the son of a bitch. It is an ineffective weapon that wreaks death and human misery. It seldom achieves its objective and often just lets us take a hypocritical high moral ground, a feel good fig leaf, ignoring war crimes committed in the name of the collective good.
War power arguments based on Article 1, Section 8 need to be balanced (and checked) against Article 2, Section 2.
Congress has the power to declare war. It can also call forth the militia to suppress insurrections and invasions, but these powers aren't explicitly linked by any other constitutional verbiage. Neither are letters of marque or reprisals, which if issued are going to lead to some very war like acts.
The President is Commander and Chief, of the Army and Navy, and of the Militia, when called into actual Service of the United States. His power of command is not explicitly linked to a Declaration of War either.
A DOW isn't really connected to anything specific, it's simply a declaration by Congress: "Hey, World, we are formally at war with so and so." Such declarations can be useful, they express political support and intent, and they warn neutrals and civilians to duck and cover.
The Constitution divides military authority between Congressional and Executive branches. The literal structure is a bit of a late 18th, early 19th century muddle and a recipe for heated discussion. I suspect that was the original intent.
The laws which rule this land are more and more being seen as unjust and manipulable. The jails are filled with people whose initial crime was petty, but who became subject to the monitoring and restraint of the extended prison system once they were absorbed into the system's data base. With terrorism, this process is increasing. Soon we will have drones flying overhead monitoring most citizens
Faced with this, and with no outcry about injustice even from those who loudly claim that their animosity to government is based on love for liberty, how can we expect anything different? How can we expect anyone to take the law seriously when so many of those who claim to uphold it care more about power than about justice?
And yet, still, law is all we have to establish some degree of coherence. When the hearts of men lose their way, the map of law means little; but perhaps good men need to keep reminding us all that there is a way to do what is right....Perhaps that is what Mr. Granoff is doing.
http://query.nytimes.com/gst/fullpage.html?res=9E06E6D91731F934A15752C1A9639C8B63&pagewanted=all
Is it any wonder that the whole thing is happening all over again?
Article I requires the President to obtain a declaration of war or more recently its AUMF equivalent in order to start a war.
On the other hand, both the President and Congress can suspend or void treaties unilaterally and have done so repeatedly in the past. The President need not and often should not seek UN permission to go to war. If the Congress gives the President the authority to go to war with Iran, the President should not put the interests of the United States behind Russian and Chinese vetoes on the Security Council.
"The United Nations Charter was drafted largely under American leadership and by Americans. As a treaty it is was duly ratified by the Senate."
How do you get around these two facts?
We must abandon all thought of getting our way through war.
We must come to realize that as the last superpower left we have a responsibility to act in the opposite way that we have.
Instead of pontificating our might we must learn to sit still and stay quiet.
We must become the last country on earth that you want to cross but we can only do that by withdrawing our name from the list of those who are willing to go to war.
If the US ever goes to war again it must be done in such a horrific manner that the world begs us never to do it again.
Then we will once again be the power, we will once again be allowed to grow our country and let our citizens expand their livelihoods.
We must be the silent character sitting in the shadows, our strength unmatched and our love of liberty and law unparallelled. We cannot be the one everyone comes to in times of trouble if we are part of that trouble. Yes we have nuclear weapons but we cannot ever use them again. Yes we have the most powerful army in the world but we dare not unleash it under less than the most hazardous of situations.
The United States has to now do something we never saw a need for before.
We must start being the country we tell everyone we are.
War is the result when civil options have failed.