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Speech presented to the Colorado state chapter of the Federalist Society.


On October 16, 2002, President Bush signed into law House Joint Resolution 114, now P.L. 107-243, authorizing him to use "the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." The actual authorizing language was preceded by a number of "Whereas clause" findings with respect to Iraq’s invasion of Kuwait in 1990, weapons of mass destruction and missile programs, Iraqi assistance to international terrorism, violations of Security Council resolutions, a 1993 attempt to assassinate the former president George Bush Sr., and many other things.


The Iraq authorization was passed in a moderately partisan atmosphere. In the House all but six Republicans voted for it, while Democrats voted in the negative by a 3 to 2 majority. In the Senate, one Republican voted No while Democrats voted in support of the authorization 29 to 21.


While there was some discussion that Congress should have enacted a declaration of war pursuant to Article I, Section 8, Clause 11 of the Constitution, rather than an authorization to use force – about which there is no specific constitutional language – few would doubt that enactment of the resolution meets the Constitutional requirement that Congress, not the President, commit the country to war. Similar suggestions of a war declaration were expressed by some in Congress after 9/11, but the result then also was a use-of-force authorization. It has been suggested by some that whatever the language of our Constitution, since no state has declared war against any other state since World War II – that is, under the United Nations system – declarations of war proper are no longer a part of the customary law of nations and have no more currency than Congress’s power to issue "Letters of Marque and Reprisal," found in Clause 11 with the war power.

In addition, the authorizing language in the Iraq resolution specifies that "Congress declares that this

section is intended to constitute specific statutory authorization within" the relevant section of theWar Powers Resolution of 1973 (P.L. 93-148). The War Powers resolution, in its primary operative provision, requires the president to terminate unauthorized military actions within 60 days. Of course, the Executive Branch has never accepted the constitutionality of the War Powers Resolution, even while taking care not to violate it.

 

Shortly after enactment of the Iraq authorization, on November 8, the Security Council unanimously approved Resolution 1441 warning Iraq of "serious consequences" should it not comply with all relevant resolutions, most of which pertain to development of weapons of mass destruction and ballistic missiles.



Thus, with respect to the applicable formalities, it is generally agreed that the Iraq war will be one properly authorized, both with respect to domestic law under the U.S. Constitution and (assuming its constitutionality) the War Powers Resolution, and internationally under the Charter of the United Nations, which of course in binding on the United States as a treaty.

Over the past few months, in both the Congressional debate and diplomatically in much of the rest of the world, the Iraq question focussed largely on the question of how, and by whom, the war would be authorized. Americans talked primarily about the role of Congress, the rest of the world on the Security Council. But domestically, with respect to Congressional power, it was evident early on that there is absolutely no consensus as to what today constitutes compliance with Constitutional imperatives. Congressional authorization? Declaration of war? Consultations between the President and Congressional leaders? Presidential notification of intent? Nothing? Nobody, at least in Washington, seems to know.

While it is clear to that the Founding Fathers saw giving the war-making authority to the Legislative Branch as a hallmark of republican government’s distinction from monarchical – most notably in Hamilton’s Federalist No. 69 -- we have long since entered a period of de facto Executive absolutism. It now appears the only restraints on the President are political considerations (i.e., the war may prove unsuccessful, unpopular, or both) and Congress’s ability to cut off funds. But even with regard to that latter restraint, denial of funds is virtually impossible while U.S. forces are engaged in hostilities; the most important recent exception was the 1993 cutoff of money for the Somalia deployment, on which West Virginia’s powerful Democratic Senator Robert Byrd pulled the plug after the Mogadishu disaster depicted in the film "Black Hawk Down". Viewing Congress’s role in political, not legal, terms, presumably Congressional support (which President Bush did in fact receive for Iraq) will be seen as a substantiation of popular support, even if the Constitutional requirement is moot; the possibility that ordinary citizens might not be as supportive of the effort as are the political class – who are subject to influences the common citizen is not – cannot be effectively quantified (how, by polls?).

With regard to the Security Council, this also seems – from the perspective of Washington, anyway – to be less of a formal requirement than of assuring other states will not cause problems. President George Bush Senior had a Security Council authorization for the first Gulf War prior to going to Congress, and made it clear to Congress that he found this sufficient – if Congress wanted to give him their authorization as well, fine (they in fact did) but he didn’t need it. The legal theory was that since he had been authorized to use force pursuant to the U.N. Charter, Congress had, by advice and consent to the Charter, authorized actions consistent with it. By contrast, President Clinton launched the Kosovo war without Congressional or Security Council authority on the claimed basis of the North Atlantic Treaty (NAT), despite the fact that the NAT authorizes use of force only the defense of the territory of member states. Indeed, a specific resolution of authorization for the 1999 war against Serbia was voted on by the Congress and defeated by a 213-213 vote in the House. (The vote on the Kosovo war was quite partisan, with Republican Senators voting against the president by better than two-to-one, and House Republicans by more than nine-to-one.) Still, even the affirmative defeat of an authorization had no impact on the President’s claim of authority to wage war.

The current president has reversed his father’s approach by securing the Congressional vote first (even while also claiming he not precluded from acting without authorization), and then presenting the Security Council with the prospect that he does not need a resolution from that body, though he would prefer to have it. Of course, as far as the United Nations is concerned, if a state is genuinely threatened with imminent attack, the U.N. Charter itself gives that state and its allies specific authority to defend itself (or themselves) until the Security Council can cause the attacking state to desist. (Article 51: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.")


In short, the question of authorization has long since ceased to be a matter of constitutional authority so much as a gauge of support for the president’s policy, so let’s examine that briefly in the matter at hand. Few would doubt that the United States will be successful in the immediate task of occupying Iraq and toppling Saddam Hussein’s regime. The question really is, will that effort be "successful" in the sense of averting evils, both in Iraq and internationally, as grave or graver than those we assert in justifying the war in the first place. Some proponents of the war believe it will lead to a moral and political revolution in the Arab and Muslim worlds toward democracy and modernism, about which more below. However, precedents in the Muslim world, notably Afghanistan, are hardly encouraging. Also, the prospect of destroying one of the Arab world’s foremost secular states – brutal autocracy though it is – and one that is not without its favorable comparisons in the region – for example, the fact that Christians enjoy a far better condition in Iraq than they do in such favorites of U.S. policy as Saudi Arabia and Egypt – seems somewhat at odds with a policy supposedly directed against radical Islamic terror.

Even aside the precedent of Afghanistan, there is a divergence between the Administration’s course on Iraq – which presumes initiation of traditional state-to-state hostilities – and the fact that the primary consequences of the war may relate to non-state actors such as al-Qaeda. That is, not only may the war on Iraq be a major boost for Islamic militants worldwide, the focus on Iraq points to the extent to which the Administration’s entire "coalition against terrorism" is directed against a list of "rogue states" that preceded 9/11 as opposed to targeting the global jihad movement. In fact, the major bases for that movement are not in the rogue states (with the partial exception of Iran), but in countries regarded by Washington as allies in the "coalition against terrorism," namely Saudi Arabia, Egypt, and Pakistan – all close, longtime friends of the United States. Meanwhile, other states, with the partial exception of Israel, are asked by Washington to show restraint against terror that is clearly connected with Islamic radicalism, and in some cases with al-Qaeda. For example, repeated raids against India (especially the December 2001 massacre at the parliament building in New Delhi) have generated far more American officials’ calls for Indian forbearance toward Pakistan than condemnation of the attack itself, coupled with calls for a negotiated solution to the Kashmir issue. Similarly, the attacks on Russian civilians in a Moscow theatre by Chechen and Arab Wahhabists in October 2002, and a later suicide terror strike on the Russian administration in Grozny were perfunctorily denounced by Washington amid renewed calls for a negotiated solution in Chechnya – even as the United States was stepping up pressure for Russia to cooperate on a military solution in Iraq.

As to the conduct of the Iraq war, without going into too much detail here, the fact that the war power is almost entirely a political rather than constitutional exercise, has an important consequence in that an Iraq war, like others in the post-Vietman era, may not be sustainable in the face of significant casualties. (I define "significant" as noticeably above the ambient loss of personnel due to accidental causes in operations in a non-hostile environment.) That consequence was illustrated by the rapid pullout after the Marine barracks bombing in Beirut under President Reagan and the termination of the Somalia mission under President Clinton. Thus, we see the development of the "no U.S. casualties" policy followed in Haiti, Bosnia, and Kosovo. While following September 11 the American people probably were ready to accept significant casualties to overthrow the Taliban and shut down al-Qaeda’s base in Afghanistan, it is unclear if they will do so for the purpose of rebuilding Afghanistan (as a "multi-ethnic, gender-sensitive democracy," as stated as the goal of pending legislation, H.R 3994 in the 107th Congress). The result is that force protection has become a primary mission goal in Afghanistan, as it is in the continuing Bosnia and Kosovo deployments, and no doubt will be in occupied Iraq. During operations to topple the current regime and occupy Iraq, it can be expected that the vast preponderance of American force will be applied in the form of air power, notably delivery of "smart bombs" from 15,000 feet (i.e., above the range of hostile fire). Despite the most humane of intentions, this unfortunately will likely mean a significant level of civilian "collateral damage," with attendant consequences both moral and political.

Having noted the specific thinking in Washington on the manner in which the Iraq decision is being made, it should be clear that the goals of U.S. action against Saddam Hussein and his regime project far beyond Iraq’s borders. Some reports have described the larger objective as one no less ambitious than redrawing the political map of the Middle East, and by extension, global energy policy. Supporters of Washington’s policy, both within and outside the Bush Administration, put forth the idea that the removal of Hussein and installation of a U.S.-backed government in Baghdad could trigger democratic change in neighboring Iran and put pressure for reform on the Saudi monarchy. A post-Saddam Iraq is seen by some as a "pivot" that would make Syria — also on the U.S. list of terrorist-sponsoring states — a next focus of U.S. action in the Middle East. With Iraq under U.S. occupation, Syria would find itself surrounded by U.S. allies in Israel, Turkey, and Iraq; Iran would be similarly ringed by Iraq, Pakistan, and Afghanistan – so the thinking goes. The regimes in Tehran and Damascus would be next to go in a kind of reverse domino theory, possibly resembling the "rolling" de-communization of the Soviet bloc in the late 1980s and early 1990s.

Moreover, American control of Iraqi oil fields – the proven reserves of which are the only ones that rival those of Saudi Arabia -- would lessen U.S. reliance on oil from the Saudis and other Persian Gulf monarchies; it would also keep Russia’s newfound energy prowess in check by placing an American hand on the spigot that determines world prices. As a former CIA director has put it, Washington and its soon-to-be-installed friends in Baghdad may decide to return phone calls from Moscow and Paris when it comes to post-war energy interests depending on how much reason we have to be grateful for French and Russian support – or resentful of their opposition. Recently, suggestions have been floated that increased Iraqi production – now less than 3 million barrels a day, as opposed to the 7 or 8 million a day Saudi Arabia and Russia produce and Iraq is capable of – would be used to offset the cost of an occupation, estimated to range from $12 billion to $48 billion a year, plus about $50 billion for the war itself.

Such offsets might apply only until a democratic successor regime is installed, but questions have been raised as to how "democratic" the successor regime will be or should be, or whether some sort of pro-Western authoritarian order would be preferable. Still, even assuming anything like democracy were the intended goal, Iraq has no history of democratic rule, has suffered through 35 years under a police state, and its population is made up of ethnic groups that might not be able to cooperate enough to form a government or even retain a unified state without foreign occupation or a new authoritarianism. After years of brutal suppression by Ba’athist socialism, we may be surprised to find surfacing in Iraq a significant degree of pro-Western sentiment – which there may be – but also anti-Western radicalism, both pro-Iranian Shia and pro-al-Qaeda Wahhabist; it is significant that Ansar al Islam -- the only known pro-al-Qaeda group operating in Iraq -- is found not in areas controlled by Saddam Hussein but in the northern Kurdish area protected from him by American and British air power.

Prospects for the democratic future of Iraq might receive a cautionary note from current efforts in Afghanistan. For example, in October 2002 the U.S. Commission for International Religious Freedom – itself part if the U.S. government – issued a report on the failure of the U.S.-supported government to enforce any recognized standard of tolerance and human rights, even in a country under occupation. "The Commission," said the report, "is alarmed by mounting evidence that Afghanistan is being reconstructed – without significant U.S. opposition – as a state with oppressive crimes and punishments derived from an extreme interpretation of Shariah, as well as a religious law-enforcement apparatus and police. Already a number of developments justify an urgent focus by the United States on human rights issues. Among them: . . . Statements by the Chief Justice that amputations and other abusive corporal punishments under Shariah would continue. Proposed reforms, such as private, versus public, trials and amputations do not transform such cruel and inhuman punishments into acts that meet international standards. The Chief Justice’s other statements have affirmed that non-Muslims who refuse to convert or to obey Islam should be executed, along with non-Muslims who do not cease to propagate their faith or leave the country."

It is to be expected that if Saddam Hussein survives the war, he and other top members of his regime will face a reckoning before some sort of criminal tribunal. One possibility will be trial by an Iraqi successor government to be put in place, but creating a new legal code and court system from scratch will not be an easy task. Another would be simply placing the defendants before military tribunals by the occupying authority, which would most closely resemble the Nuremberg precedent as well as the post-9/11 tribunals for al-Qaeda detainees. Finally, the 1998 Iraq Liberation Act, signed into law by President Clinton as P.L.105-338, urges the president "to call upon the United Nations to establish an international criminal tribunal for the purpose of indicting, prosecuting, and imprisoning Saddam Hussein and other Iraqi officials who are responsible for crimes against humanity, genocide, and other criminal violations of international law." This is paralleled by repeated resolutions in both Houses urging the creation of an international tribunal for Iraq on the basis of existing ad hoc U.N. war crimes tribunals for Rwanda and Yugoslavia.

Both the Rwanda and Yugoslav tribunals were created by the Security Council with strong U.S. backing, and Congress has repeatedly appropriated funds for both tribunals.

The Security Council’s authority to created any judicial or quasi-judicial body is not obvious. The resolutions creating the existing tribunals cited, without further elaboration, Chapter VII of the U.N. Charter, which pertains to the Security Council’s taking steps to deal with breaches of international peace.

American support for the two existing tribunals has had one further consequence, which may have repercussions in Iraq. In one of his last major acts before leaving office, President Clinton signed the Rome Statute creating yet another body, the International Criminal Court (ICC). In his signing statement, he specified that American "leadership in the effort to establish the International Criminal Tribunals for the Former Yugoslavia and Rwanda" was part of a "tradition of moral leadership" justifying his committing the United States to the ICC.

That action gave impetus to anti-ICC sentiment already building in Congress, largely based on concerns that a standing international criminal tribunal would claim jurisdiction over American military personnel engaged in operations abroad. While the Rome Statute defined the ICC’s mission as dealing solely with war crimes and crimes against humanity, only the ICC itself (from which there is no appeal to a higher authority) will have the right to define what actions fall under those headings. Based the Yugoslavia and Rwanda tribunals, whose rules of procedure were the model for the ICC, defendants will have none of the due process rights afforded by the U.S. Constitution, such as trial by jury, confrontation of witnesses or a speedy and public trial. The likelihood that the ICC, like other U.N. panels, would include justices from countries not generally regarded as exemplary on human rights and the rule of law also was disquieting. And unlike some other international panels, the ICC would accord the United States no special status such as a veto or a weighted vote.

Even though the Rome Statute dealt exclusively with war crimes, there is nothing to prevent a future expansion of the matters subject to the ICC’s jurisdiction, which it claims over all adults in all countries, even those that are not parties to the Statute. For example, even today our friends in the European Union join domestic critics in branding the death penalty in the U.S. "discriminatory" and "inhumane." Who can guarantee that in the future an American governor might not face indictment by the ICC for "crimes against humanity" for signing a death warrant? It should be remembered that today’s defendants in the Rwanda and Yugoslav tribunals are on trial not for attacks on another country but for offenses occurring entirely within their own countries.

Finally, the ICC is a major step forward for what is sometimes called the concept of global governance at the expense of state sovereignty, in that it is the first instance of a U.N. entity’s being given direct jurisdiction over human individuals as opposed to settling disputes between states. This importance has been stated explicitly by supporters of the ICC and of its precursor institutions, such the chief prosecutor for ad hoc tribunals for Rwanda and Yugoslavia, who expressed this concern over building American hostility to the ICC:

"[I]t seems that national sovereignty is still a strong factor — it has not changed. Narrow state interests still dominate, and collective action is a problem. Clearly, the International Tribunals for the former Yugoslavia and Rwanda should be the starting point, not the high point, of the move for justice against dictators and war criminals. . . . As we look at the statutes of the proposed International Criminal Court, I am concerned that states, in their own narrow interests, are beginning to recoil from the idea of international justice."

Whether or not one agrees with the prosecutor’s perception of the "narrowness" of states’ placing their sovereignty above the "idea of international justice," at least as far as the United States is concerned, the "recoiling" from the ICC reached its culmination last year. In May 2002, the Bush Administration sent a letter to Kofi Annan informing him "that the United States does not intend to become a party to the treaty [i.e., the Rome Statute]. Accordingly, the United States has no legal obligations arising from" the Clinton signature. Less than two month after this notification -- the closest thing under international law to "unsigning" a treaty -- with the Rome Statute having acquired the requisite number of ratifying countries, the ICC came into existence.

Moreover, in August 2002, President Bush signed into law the American Servicemembers’ Protection Act (as part of P.L. 107-206, Supplemental Appropriations). The Act prohibits any American official authority – federal or state – from cooperating with ICC, and it authorizes the president to take action, including the use of military force, to liberate any servicemember held by the ICC. In addition, one of the findings (which has no legal effect) in effect brands the Court as an illegitimate body and inconsistent with the principle of the sovereign equality of states recognized in Article 2 of the U.N. Charter: "It is a fundamental principle of international law that a treaty is binding upon its parties only and that it does not create obligations for nonparties without their consent to be bound. The United States is not a party to the Rome Statute and will not be bound by any of its terms. The United States will not recognize the jurisdiction of the International Criminal Court over United States nationals."

The storm of protest from most of the rest world – not least from our European allies, whose cooperation we have been courting on Iraq – was predictable: here is the United States, taking the lead on establishing tribunals for foreigners, but insisting that its own citizens be exempt from the same international standards it imposes on others. Whatever option is chosen for prosecutions in post-Saddam Iraq, we can expect that that not entirely inaccurate observation will be a major part of the debate.