As President Obama authorizes US airstrikes in Iraq and future strikes anticipated for Syria, it’s important to first ask whether or not the Constitution is being followed.
The invasion in Iraq and Afghanistan, and drone strikes in multiple other countries has increased terrorism through blowback. Destabilized areas have become a hot bed for violent extremism. Using circular logic, Congress and the Executive Branch all have determined that they should fight the newest terrorist group, the Islamic State (IS), with bombs. The Islamic State was created by US intervention and funneling of weapons to this group to battle other enemies. Then they became a threat to US “interests.” Therefore more intervention is needed, and the war drums keep beating.
The strategy to combat the Islamic State is foggy. After sending in hundreds of advisors to secure the Green Zone, and some random airstrikes in the Kurdistan region, and sending in more advisors, the US government doesn’t seem to have a clear-cut game plan. However, even with the lack of plan what constitutes a war in the constitutional sense?
Rob Natelson wrote:
Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition. A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.” (Barlow, 1772-73). I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”
The Founders choose the Legislative body to declare war, instead of the president. This is not a mere formality, they intentionally limited the declaration of war to Congress for reasons two-fold: they feared a tyrannical executive branch and wanted the voice of the people to judge the reasons for going to war.
The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion. It fought a just offensive war when it responded to an infringement of its rights short of invasion. It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights. Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.
Whether it be a ground troop invasions, special forces night raids, or bombing areas to deny the Islamic State access to certain areas, it is a war. So, to restate, if a war was not a just one, even if it were constitutionally declared by congress, that would be “defective” under the law.
According to Murray Rothbard in “Just War”, “A defensive war did not require a declaration. A just offensive war did require one, although it might be called something other than “declaration of war.” The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting. Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.
Murray Rothbard said, in the history of the United States, only two just wars have been declared.
To be specific, the two just wars in American history were the American Revolution, and the War for Southern Independence…Specifically, the classical international lawyers developed two ideas, which they were broadly successful in getting nations to adopt:
(1) above all, don’t target civilians. If you must fight, let the rulers and their loyal or hired retainers slug it out, but keep civilians on both sides out of it, as much as possible. The growth of democracy, the identification of citizens with the State, conscription, and the idea of a “nation in arms,” all whittled away this excellent tenet of international law.
(2) Preserve the rights of neutral states and nations.”
Rothbard Continued in his piece,
“In the modern corruption of international law that has prevailed since 1914, “neutrality” has been treated as somehow deeply immoral. Nowadays, if countries A and B get into a fight, it becomes every nation’s moral obligation to figure out, quickly, which country is the “bad guy,” and then if, say, A is condemned as the bad guy, to rush in and pummel A in defense of the alleged good guy B.
The modern-day perception of war changed with Woodrow Wilson,
In modern international law, where “bad-guy” nations must be identified quickly and then fought by all, there are two rationales for such world-wide action, both developed by Woodrow Wilson, whose foreign policy and vision of international affairs has been adopted by every President since. The first is “collective security against aggression.” The notion is that every war, no matter what, must have one “aggressor” and one or more “victims,” so that naming the aggressor becomes a prelude to a defense of “heroic little” victims.
The second Wilsonian excuse for perpetual war, particularly relevant to the “Civil War,” is even more Utopian: the idea that it is the moral obligation of America and of all other nations to impose “democracy” and “human rights” throughout the globe. In short, in a world where “democracy” is generally meaningless, and “human rights” of any genuine sort virtually non-existent, that we are obligated to take up the sword and wage a perpetual war to force Utopia on the entire world by guns, tanks, and bombs.
The executive branch does not legitimately have the constitutional power to pick bad guys and aggress, nor does it have a moral obligation to try to squelch unrest in other countries. The power to declare an aggressive war resides in the congress. The founders never intended that power to reside in the hands of a single person. In fact, they feared it. Congress was meant to deliberate and debate before rashly sending American into battle.
The first step to following the Constitution is to stop accepting the excuses for unjust wars. If we cannot break through this first hurdle, we may never go back to constitutional reasons for declaring and launching wars.
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