We should ask ourselves the simple question..legal or not...if not legal
it is criminal..if it is criminal then punishable....

Declaring and Waging War: The U.S. Constitution
by Jacob G. Hornberger, April 2002

Excuse me for asking an indelicate question in the midst of war, but
where does President Bush derive the power to send the United States
into war against another nation? The question becomes increasingly
important given that the president has indicated that once the Afghan
War has been brought to a conclusion, he intends to use U.S. military
forces to attack other sovereign nations.

It is important to keep in mind that our system of government was
designed to be unlike any other in history. First, the federal
government was brought into existence by the people through our
Constitution. Second, the Constitution is the supreme law of the land
that controls the actions of our public officials in all three branches
of the federal government. Third, the powers of the federal government
and its officials are not general but instead are limited to those
enumerated in the Constitution.

Fourth, the government is divided into three branches, each with its own
enumerated powers, and one branch cannot exercise the powers of another
branch. Fifth, the Constitution expressly constrains democratic,
majority rule. Sixth, public officials are not legally permitted to
ignore any constitutional constraint on their power but must instead
seek a constitutional amendment from the people to eliminate the
constraint.

Why did the Founders implement such a weak, divided government? One big
reason: they clearly understood that historically the greatest threat to
the freedom and well-being of a people comes not from foreign enemies
but instead from their own government officials, even democratically
elected ones. And they understood that that threat to the citizenry was
always greatest during war.

Consider the words of James Madison, the father of our Constitution: “Of
all the enemies to public liberty war is, perhaps, the most to be
dreaded, because it comprises and develops the germ of every other. War
is the parent of armies; from these proceed debts and taxes; and armies,
and debts, and taxes are the known instruments for bringing the many
under the domination of the few.”

What does our Constitution say about war? Our Founders divided war into
two separate powers: Congress was given the power to declare war and the
president was given the power to wage war. What that means is that under
our system of government, the president cannot legally wage war against
another nation in the absence of a declaration of war against that
nation from Congress.

Again, reflect on the words of Madison: “The Constitution expressly and
exclusively vests in the Legislature the power of declaring a state of
war [and] the power of raising armies. A delegation of such powers [to
the president] would have struck, not only at the fabric of our
Constitution, but at the foundation of all well organized and well
checked governments. The separation of the power of declaring war from
that of conducting it, is wisely contrived to exclude the danger of its
being declared for the sake of its being conducted.”

Therefore, under our system of government although the president is
personally convinced that war against a certain nation is just and
morally right, he is nevertheless prohibited by our supreme law of the
land from waging it unless he first secures a declaration of war from
Congress. That was precisely why presidents Wilson and Roosevelt, who
both believed that U.S. intervention in World Wars I and II was right
and just, nevertheless had to wait for a congressional declaration of
war before entering the conflict. And the fact that later presidents
have violated the declaration-of-war requirement does not operate as a
grant of power for other presidents to do the same.

What about the congressional resolution that granted President Bush the
power to wage war against unnamed nations and organizations that the
president determines were linked to the September 11 attacks? Doesn’t
that constitute a congressional declaration of war? No, it is instead a
congressional grant to the president of Caesar-like powers to wage war,
a grant that the Constitution does not authorize Congress to make.

Therefore, when a U.S. president wages what might otherwise be
considered a just war, if he has failed to secure a congressional
declaration of war, he is waging an illegal war — illegal from the
standpoint of our own legal and governmental system. And when the
American people support any such war, no matter how just and right they
believe it is, they are standing not only against their own principles
and heritage, not only against their own system of government and laws,
but also against the only barrier standing between them and the tyranny
of their own government — the Constitution.

Well, the legality of the Iraq war is unquestionable. The original war
was us protecting Kuwait- and violence against an attacker to protect
the victim is not only acceptable, but a moral necessity. Of course,
it's better if a peaceful solution were possible- war is the last
acceptable course of action. But it trumps doing nothing and allowing
innocent people to suffer.


And the current war is a result of the old one. We had a treaty- Iraq
would allow UN inspectors essentially unlimited access. Iraq would not
build or maintain a military over a certain size. Iraq would not seek to
acquire or manufacture WMD's. Iraq would not produce chemical weapons
(even those not of WMD status). Iraq would not produce long-range or
first strike missiles. Iraq would stop committing crimes against
humanity. And a few other points were included- plus it was in that
legality language we all love so well.

If Iraq violated ANY of these conditions, the UN would have cause to go
to war.


Guess what- Iraq violated almost all of them. (Not the WMD thing, which
is the only viable anti-iraq argument). But they did all of the others.
And any one of those was cause enough to go back to war. Clinton should
have been the President to fight the Iraq war. But, of course, he was
too busy boinking the ugliest women in Washington DC to care.

should the US have a standing army, navy, air force?

should we have a coast guard?

why should we or shouldnt we?

if we should then what purpose do they serve?

if we shouldnt then everything is moot.

because most of you believe in give a hug and not a slug and the world
will be a better place. You can not sit back and state over and over
again that the US is the root of all that is bad in this world. There
are just bad people out there who wish us harm. there are weak minded
people out there who listen to what those bad people say and believe
with all their hearts that the lies are real. you dont have to go even
outside our own borders to find people like this. I give you Jonestown,
the branch dividians, heavens gate, hell even charlie manson. if you
want to go utside the borders you can have your sadaam's your tojo's and
hitler's mix them in with some freakin castro, papadocs, drug lords of
somolia. point being bad people exhist.
instead of fighting evil in this world you would rather fight against
those who wish to rid the world of this evil. Im agnostic so to me i
could care less about the religious aspects of it all, but for all you
love mongers out there who think that if you pray for them hard enough
they will convert i would ask, why is it you would pray for the evil,
and not for your own.
to much hypocrisy in the world to keep harvesting it here in the us all
the time, spread the hate to where it belongs already. you dont like
americans, and i mean all americans, and would rather have us all
non-diversified then i say your killing the very foundations of this
great country. remember that there are more opinions outthere than your
own, and we are all blessed to have are own. doesnt mean im wrong in
mine or you are wrong in yours, just means that we do not agree on the
topic and can still part company as civilized freakin humans. of course
tolerance is great to have as well, but it seems that it only applies to
those who dont agree with you needing to have it and not yourself.


doc

the intent of this thread is simple...the legality of war...it is
spelled out in the constitution..standing armies as outlined in it are
for protecting our shores...
and the right to bear arms as citizens also well defined...so it
remains...
if we are to ignore our own set of laws as outlined..and continue to
invade
other sovereign countries at will ...then doesnt that make us a rogue
state..
no better than any other in the world ...I think it is an important
consideration
because it defines us as a culture..

And if you are referring to me as a love monger you can stop there...I
do not vote
democratic...would not define myself as liberal...I'm a vet..USMC 70 -
73 Sgt....
I believe we have the right to our weapons...so if you are directing
that at me it
just doesnt fit...I support the troops...but believe the war is illegal
and designed
for failure to weaken us as a country...

If Bush is right...and the constitution is nothing but an old piece of
paper...then
god help us...the nazi's did the same thing in Germany years
ago...

Uh... did you mean "designed for failure".... or was that a mistype of
"destined"? There's a very, very extreme difference of interpretation
between the two. And it needs to be clarified before we move on.

From what I have seen, and I've seen a lot, the war is legal. In the
recent past a group of liberals have advanced the notion that it is not
legal but only for their own political objectives, which are primarily
to defeat any republican ideals, destroy the credibility of any
Republican initiatives, and attack Bush personally.

Given the background you claim Davinci, I'm a little surprised to see
you raising this particular question. Not to make an issue of your
reasoning though I'll address the question with my own perception.

First, as was stated earlier, the Gulf war one was not only legal it was
ultra-legal. Every country in the Security Council of the United Nations
supported it along with many other countries. An enormous consensus was
built up before the war was commenced.

The second war was an outcropping of the first. Iraq broke many of the
conditions which were specified in the ending of that phase. Those
agreements were made in the hopes of not having to go forward into
Baghdad. Apparently the hope was there but the reality was not. There
was a no-fly zone that he couldn't stay out of. There was continued
persecution of his own people, including some who had gone over to
support the coalition, with the understanding that they would be better
off.

Once again The United Nations was brought into the question and once
again the security council gave approval for the moving forward of the
troops. There was an ongoing question of weapons of mass destruction.
People love to say they weren't found, but others love to say they were
moved out of the country. Nobody is saying that some may remain hidden,
but that is also true.

One of the biggest questions raised about the purchase of nuclear
material in Nigeria was essentially raised by a liberal activist
(Valerie Plane's husband on a mission). What that fellow ever found in
Nigeria nobody will ever know, only what he reported. Whether he was
competent to find anything in the first place was never questioned, but
personally I wonder why.

Anybody can say anything. The truth does not always come out. One thing
that seems clear to me though is that Hussein could have been a little
more forthcoming in dealing with the inspectors. I had the continual
feeling that he and his country were always on the dodge for one thing
or another, and in the meantime shooting at coalition planes and such.
Perhaps if he had been a little more candid in his discussions and a
little more cooperative the whole thing would have been settled years
earlier. But he always went to the brink. Never would bend to
accommodate the international community. That might be admirable in some
circles, but it shower considerable stupidity in my opinion. He brought
it on himself and his country with his action.

Generally I agree with Poet on almost all of this except the WMD. I hold
the opinion that not finding WMD does not mean they did not exist. Most
likely plenty was shipped to Syria or even Iran along with huge hoards
of money nobody ever asked about. I have noticed that conventional
weapons are in no short supply in Iraq, but my guess is that the
coalition forces did what they could to find and destroy or confiscate
them. Clearly they did not find all of them, nor even a small portion of
them from the way things look now. If they couldn't find the
conventional weapons, why would you think they should be any better at
finding needles in haystacks which were specifically hidden.

Does the President have the power and authority to take us to war? Well
they talk about that in the media every week. Haven't you heard any of
the talk? Do you think the media would be saying he has the power but
Congress holds the purse strings if that weren't the case? Like Atty Gen
Gonzalez, Bush is a target, people like to attack his reputation and his
authority. Anyway, whatever the media says, he has the authority, he had
it then and we knew it when we elected him. When we elect a Democrat he
will have the right to use the oyster defense, where all the players run
out in the field and lay on their backs and see if they can catch
footballs that are thrown indiscriminately into the air. (I learned that
tactic from Warren Moon as quarterback for the Houston Oilers a while
back).

I think there is a large group who would prefer that the president did
not have the power. More than that, there is a large group of people who
would prefer the United States could never use the military without
approval of the United Nations. But since the United Nations is largely
corrupt, and since the other large countries even in the security
council have their own global agendas, there would be no hope for
Justice for our country without some autonomy. So while it is nice to
have the approval of the UN when war is imminent, it is not necessary.

I think the president should be reserved with the use of the military.
But if the congress had to give a majority opinion in order to authorize
war we would be overrun in our graves before a hand was raised to defend
us.

Some authority has to be somewhere for quick action to respond when it
is needed.

Now if you are proposing that no war is legal unless it is supported by
the entire world, well, if everyone in the world agreed then there would
be no reason to go to war. Would there?

One thing to keep in mind in foreign policy. Countries who work together
and make an effort to get along peacefully and to have fair trade, and
do not attack their own people or neighbors or threaten them, generally
get along with the United States and have no problems in that regard.
They grow their countries and prosper. They participate in a global
market. When a country runs counter to all the norms of civilized
society and is a threat to their neighbors,,, well Confucius once said
"A man does not need a reason to be wary of a poisonous snake." Maybe
without so many fangs the viper might learn to live in society.

The United States is certainly making a good attempt to get along in the
world.

I'm afraid that looks like too much rambling, a lot of type,
So I come down on the side of legal, if its legal than its not
punishable.

Let me pose this question for you in turn. Do you suggest that Iran and
Syria are following legal actions in supporting insurgents and in the
arming of Hesbollah? If it is not legal than would you consider it
punishable? Next time I'll ask you who has the right to punish them if
your answers are no and yes.

Oh- I'm not saying there WERE no WMDs. Or that they weren't trying to
make them (it's quite reasonable they never had the chance to finish the
projects). I wouldn't put WMDs out of Saddam's insanity. He'd have
gotten them if he could- and he'd have used them if he had the chance.

I'm just saying it's the one, and only, viable argument anyone might
have against the war in Iraq is in us not finding those weapons.


Of course, that's like saying your urine is the only water to drink in
the desert.

the main point of this thread is if this war is legal under our
constituion..which it is
not ....there has never been a declaration of war by the congress...so
in essence we are
in violation of our own laws and this administration..as well as Clinton
(in the balkans)
are operating out of the law in regards to waging war...
now we are entering a time where the pres is putting in place action
against
Iran...are there discussions about declaring war?..no.....was there
about Iraq...no
afganistan?...nope...
by ignoring this in the process...we..the american people have been
taken out of
the discussion...because if there were debates about declaring war in
the congress
at least the option would be there for us to talk to our congress people
before they make
a vote...
So we dont have a country of law anymore.we have a pseudo dictatorship
that does what it
wants ....scary thought dont you think?....

___________

and yes I did put by "design" in there because I feel it is by
design...to bring about the
destruction of this country...just my personal feelings.....Sorry..wont
play the conspiracy game...
the material is out there for anyone...

War is never legal.

Thou shalt not commit murder!

However it is sometimes an unfortunate side effect of 'civilization'.

Both wars are quite legal.
The Iraq war began with the invasion of Kuwait by Iraq, and through UN
obligation, the US military engaged the Iraq military. This obligation
is the equivelant of a treat, and had been accepted long prior to the
Iraq war. The "second" Iraq war was not really a second war, as the
first war never ended. It was a cease-fire based on specific
requirements, that the UN laid out for Saddam and the Iraq goverment.
Saddam and the Iraq goverment did not meet those requirement and thus
the cease-fire ended.

As for Afghanastan, the goverment at the time, the Taliban, had provided
shelter for the persons believed to have carried out the attacks on the
World Trade Centers. Congress authorized the President to take military
action, which he did.

The real question should be does the constitution require a
Congressional Declaration of War in order for the President to command
the military into a combat situation?

The Constitution does not specifically deny Congress the right to
authorize President to use the military. Additional the Constitution
does not specifically deny the President from activating the military
without the consent of Congress.

The Korean War and Vietnam war are instances where no Declaration of War
was issued, but the acting Presidents at the time engaged the enemy with
our military.

This sets a legal precedent that would appear to give Congress and the
President to do so again.

You make a good point that war has not been declared. Interesting that
the country does not declare war when it goes to war. Was the war in
Vietnam a declared war? I don't remember that detail. Still the Pres
has power to use the forces. It is common knowledge even if some people
do not like it. Changing that would be a tough battle.

Once again I ask, Do you suggest that Iran and Syria are taking legal
actions in supporting, training and supplying insurgents in Iraq and
Lebanon? If it is not legal than would you consider it punishable?

Oh. It's "legal" in that it isn't technically criminal.

However, it could arguably be considered an act of war against America.
Of course, it's up to our country to deal with how they react.


There's no (reasonable) person who could blame us for assaulting
Iran/etc. for their support of insurgents and terrorists. But it would
be "tactically unsound" to do so. As a matter of fact, it would be
SUICIDALLY stupid to start at least two more wars in our present
condition. Maybe three or four- depending on who else we piss off.

I must plead ignorance in some of these political issues. Only in the
last 10 years or so have I become 'active' in the persuit of knowledge
in this ares. So I will ask you well versed people.

The United Nations - if the UN declares that sanctions were broken and
that the only way to gain contol of the problem is by force, than are we
not bound to send this force? Is it actually considered war if we are
simply following through with what we've agreed to do, being a partner
of the UN?

As far as this latest conflict, I'm not quite sure it is a war. Like
everything else the news media does, they do it with sensationalism. So
they use the word WAR. Maybe they get the word from the governments own
press releases when they contantly referred to "a war on terrorism". If
Congress issued a blanket policy that the Pres. could wage "war" against
terrorism of his own accord, then, I think I have to agree that this is
NOT a contitutionally sanctions war. The purpose of a "declaration" was
to indicate who we would be fighting and why. To substitue a blanket
policy base on a word "terroism" seems not only unconstitutional, but
appears to be a possible big money maker to those who hold any Federal
political office.

So am I getting the jest of this or have I confused the issues?
Please advise.

Well Philospher that is a very good question.

Since a precedent has been set in the international arena many times.

By the former Soviet Union in central america and other places.
By the United States of America in places such as Afganistan during the
war the former Soviet Union waged there(did we not supply the freedom
fighters with weapons)

How then can you attack other countries for doing what we have done. It
is likley that every government on this earth has at one time or another
aided with weapons, advisors and economic assistance covertly in a place
of strife.

Philosopher,
The Vietnam War as well as the Korean War were classified as Police
Actions as an official declaration of war by Congress was not issued.


It seems people keep talking about what is Constitutional and what is
not. They try to say the Founders would be [Insert your term hear]. The
fact of the matter is the Founders left the Constitution fairly vague
for a reason, so that future generations could create laws to handle the
situations of the time.

The Federalist Papers are a good insight into what the Founding Fathers
intended, however most schools do not teach about the Federalist Papers.
These are the views and motives behind the Articles of the Constitution.

Unfortunately over the years, many believe the Constitution is open to
interpretation, it is not. The foundation laid down by the Constitution
are concrete. What is open to interpretation is if laws that are passed
are in violation of the Constitution.

Please remember the Constitution does not grant any "Rights". It
preserves a balance to protect basic liberties and to prevent a single
entity from changing the foundation in a single administrative term.

Hi, everyone,

Legally, there are two issues. The first is the legality or illegality
of our invasion and occupation of Iraq based upon the internbal laws and
Consitution of the US.

The second is the legality or illegality of the invasion and occupation
under international law. The US fully subscribes to international law,
and so we are subject to its requirements.

The Constitutional requirement that Congress declare war is in effect,
even if this requirement seems to increasingly ingored by successive
administrations and Congresses. No, there was no declaration of war in
the case of Viet Nam. Kennedy and Johnson depended on the lack of will
in Congress to assert and assume its war-making powers. We have
continued to suffer from the ill effects of this abrogation of
responsibility and checks and balances. The Executive Branch -- the
President and his appointees -- have found it increasingly easy to go to
war on flimsier and flimiser grounds. And the American people have gone
along with it, blindly. It is a big loss for the American people and
the rule of law and the Constitution.

One of the reasons the American people have gone along with this is that
our Presidents have seen how to get away with it: assert that there is
no time for deliberation, demonize the 'enemy', and assert that the
operation will be an easy one, really just a matter of a police action.
Of course in conflict after conflict none of these assertions prove to
be the case, but by the time the American people have figured it out, it
is too late. At that point, anyone who raises the questions that should
have been raised in the first place is accused of not being 'patriotic'
and not 'supporting our troops.' The rhetoric was first trotted out by
Johnson and Nixon, and now it its echoed by the Bush people and Bush
himself. And still the American people go along with it. We can't leave
'until we have finished the job' is the current refrain.

Second international law. It is illegal for any country to go to war
EXCEPT is self-defense, self defence against an ACTUAL and significant
threat, like, an invasion.

The Bush adminsitration adopted a novel doctrine: 'preemptive'
self-defense. Developed by Abe Sofaer at the Hoover Institute, this
doctrine essentially argued that it was OK to violate international law
and strike others even in the absence of an ACTUAL threat. It was
sufficient that it be "imminent'. This is the same argument that the
Israelis made when they attacked Egypt, Jordan and Syria in 1967, when
Israel seized the rest of Palestine and established their now 40-year
old occupation of the West Bank and Gaza. The Israeli doctrine was
roundly condemned by the society of nations and internaional legal
experts around the world.

Bush adopted this 'preemptive' doctrine, and thus broke international
law. The problem with the doctrine is one of proof: if an aggressor
simply has to say that it believes it is under 'imminent' threat to
justify attacking another country, than the international rule of law,
under which all countries are protected from international bullies,
falls apart.

Yes, the Gulf War I was legal -- BECAUSE Kuwait, in legitimate
self-defense, asked the world to help throw the invader, Saddam Hussein
out. Wisely, and in full compliance with international law, Bush Sr
having accomplished that legal objective, then held back US troops from
doing anything further.

In case anyone wonders, I was and am a supporter of Bush sr and the
first Gulf war. But the second one was an entirely different matter.
There was no threat to the US (though the administration and Bush jr
lied persuasively about that), and thus the US could not invoke the
legal doctrine of slef-defence. Instead, relying on what we now know
were a host of bald lies about Iraq, Bush jr adopted the flimsy doctrine
of 'imminent' threat and preemptive attack. There is no doubt that this
is wholly illegal under international law, and the world has been
steadfast in rejecting the 'preemptive' doctrine, except for Israel, and
for a short while the UK.

In conclusion, the American people may have abandoned their rights to
Congress controlling the legality of war, but the world has not
abandoned its right to be protected under the laws of self-defense from
the oppression of rogue countries, whoever they may be. The present war
against Iraq is illegal, and no self-justification will change that.

I take no pleasure from reaching these conclusions, but I do know quite
a bit about international law, and believe that ultimately in is in our
own interests to support the rule of law; it protects everyone,
including Americans.

Thanks for putting the question foreard, daVinci, and for keeping us
focused on it!

Oceans

Thank you Oceans, as always you have provided us with an interesting and
well researched read. I don't like politics, but from you I can learn a
lot.

Thanks, Invisible!

It is odd, isn't? I love studying conflicts, law, political science,
history, psychology, systems dynamics, linguistics, cultural
anthropology, languages, sociology and God knows what else. And I love
field work, getting out there and rubbing shoulders with friends and
foes, and listening to everyone, and then slowly teasing out what has
happened in a complicated situation, and, most important, what is likely
to happen, and then to make recommendations to achieve the best possible
solutions.

I gave a briefing the other day and the person who introduced me asked
me to give him one 'new' thing to say about me. I suggested to him that
in effect and for purpsoes of this audience he could describe me as a
'forensic political scientist.' It got a chuckle from the group....


Oceans

What fascinates me most about your post is that even a total idiot like
I am, can easily understand them. Politics in my eyes are far too
complicated when it comes to long essays like that. You chose simple
words and don't drag a single sentence over a half page, so that when I
finish it I have to start reading it again because I forgot half of it.

Cheers

thanks for me too Oceans...
answers my origional question...


this war is illegal...and the constitution
is dead in the water...