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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