Wednesday, January 25, 2006

War, the Constitution and the U.N.

by Joe Miller

In a thread at Catallarchy, Sean Lynch asks readers for euphamisms for what "we call it when one nation-state engages in a legally declared armed conflict with another nation-state". I suggested that we call it "World War II," since that was the last time that the United States actually engaged in a legally-declared armed conflict with another nation-state. I meant the comment to be a joke, but it turns out to have sparked a couple of objections, one from Brian Doss and the other from Tom Anger. Brian is a Catallarch, and writes rather a lot about topics related to just war. I've learned a great deal from his posts. Tom resides at Liberty Corner. He and I collaborated briefly on an article on aggression before we discovered two things: we agree on almost nothing, and academics work at a far slower pace than bloggers. Tom posted his half of the project at Liberty Corner. I have a fisking of his article that I'll post just as soon as I get off my lazy ass and edit it. My half of the project is still in development hell, though if I can convince the University to give me some money, I'll be finishing it up at Swansea this summer. Hey, we can hope.

Anyway, getting back to the topic at hand, in responding to my post, Brian offers the following:

Granted I’m not a lawyer, but from every article I’ve read on the subject of “authorizations of force", the people involved all agree that they are the functional equivalent of a declaration of war.

If it quacks like a duck, walks like a duck, and swims like a duck, most folk call it a duck, but in the case of “authorizations of force” people say “nope, not a duck, because it has a white head instead of a green head, and ducks have green heads like in the Duck Head logo.”

Also, after the United Nations treaty, technically speaking isn’t using the words “declare war” formally illegal?

First a minor point. I don't think that the Charter actually forbids declarations of war. Rather, what the Charter forbids are aggressive wars. Article 51, however, explicitly grants the right of nations to wage defensive wars. A Congressional declaration of war would not, as far as I can tell, actually in and of itself violate the Charter. Otherwise, point taken. An AUMF is, legally identical to a declaration of war. The words are not the same, but the spirit certainly is. The intent behind Article I, Section 8 is that Congress approve sending the nation to war. Whether that is called a "declaration of war" or an "authorization for the use of military force" strikes me as pretty much irrelevant.

Tom then responds to Brian (and indirectly to me as well) with the following:

I think Joe knows that an AUMF is the legal equivalent of a declaration of war. I’m guessing that Joe is trying to make this point:

1. Presidents (e.g., Truman in Korea) have acted without the consent of Congress (even if under cover of the UN), or

2. Congress has illegally authorized the use of force because it hasn’t first received the approval of the UN.

It’s sort of a Catch-22 isn’t it? But let’s ignore point 1 for the moment and ask why (regardless of our “obligation” under the UN Charter) the sovereignty of the U.S. should ever have been placed in the hands of the UN? As I said here:

It seems unlikely that a court (the U.S. Supreme Court, in particular) would find that the constitutional grant of power to declare war, which is so fundamental to America’s sovereignty and to the protection of Americans’ interests, can be ceded by treaty to an international body that cannot be relied upon to protect our sovereignty and our interests.
If push were to come to shove, I expect the Supreme Court would nullify U.S. membership in the UN on the ground that that membership amounts to an unconstitutional cessation of sovereign power.
And Brian again:

The UN Treaty is law in the US (per the constitution), but all law in the US is subordinate to the US Constitution (i.e., where there is conflict between the law and the constitution, the constitution wins). Therefore, if I understand correctly, regardless of the UN treaty the US (legally) retains the right to go to war (meaning my Q to Joe was indeed ultimately rhetorical/moot) since (a) the US did not transfer sovereignty to the UN/throw away the constitution upon signing the treaty, and (b) the constitution explicitly enshrines warmaking capacity within the US Congress.

Now as some of you may know (and the rest of you--my students anyway--will know later in the semester), I have argued about this point in print. And I think that the Catch-22 that Tom presents misses the point of what I have argued there. The short version: The UN Charter is a treaty and as such, according to the Supremacy Clause, is part of the supreme law of the land. The Charter, however, makes waging war in any case other than self-defense illegal, unless the nation in question receives Security Council approval.

Tom's objection here is that that reading of the Charter is unconstitutional. After all, the Constitution continues to be the supreme law of the land. The Supreme Court has consistently ruled that a treaty that requires the violation of some portion of the Constitution is void. Tom's argument, then, is that the Charter conflicts with Congress' explicit power in Article I, Section 8 to declare war.

I think, however, that this reading is too quick. Now if the Charter said that the U.S. must wage war when and only when the Security Council so directs, then I would be first in line to agree with Tom; that clearly would be unconstitutional. But the Charter doesn't require that at all. Rather, what the Charter says is that in any case other than immediate self-defense, the U.S. may declare war only with Security Council approval. The Charter, then, does not usurp Congress' role in declaring war. Rather, the Charter adds an additional requirement. For certain kinds of wars, Congress agrees to declare war only if the Security Council approves. On my reading, Congressional approval to wage war is still a necessary condition for a war's legality. It is not, however, always a sufficient condition for a war to count as legal.

Yes, this is a subtle difference. And yes, many of you might well find it treading close to surrendering U.S. sovereignty to an international body. That's clearly Tom's position. I don't, however, think that it is actually unconstitutional. After all, isn't this just what treaties are supposed to do? Treaties are voluntary agreements to refrain from certain acts that would, in the absence of a treaty, be perfectly within a nation's right to carry out. So, for example, a treaty that bans the production of new nuclear weapons places certain limits on Congress. Specifically, it acts as a limitation on Congress' power to "raise and support armies." An action that Congress would have been free to do is now illegal. Still, it's hard to see why that would be unconstitutional. All treaties limit the power of the state. That is, all treaties take away the right to do certain things that the state otherwise would have had the Constitutional power to do. Tom's reading of the Constitutionality would, I think, simply have the effect of making all treaties unconstitutional. That reading, however, would pretty clearly run counter to the intent of the Framers.

24 Comments:

Anonymous Craig Wilson said...

How subtle the difference, indeed. I tend to agree with you, Joe. What sense does it make if you make an agreement without some compromise? Or a treaty between benevolent states if either state refuses to modify their respective laws, if but to uphold a certain goodwill invoked by the treaty? Very pertinent topic.

3:07 AM  
Blogger Thomas said...

Joe, three points, if I may:

1. You say "what the Charter says is that in any case other than immediate self-defense, the U.S. may declare war only with Security Council approval. The Charter, then, does not usurp Congress' role in declaring war. Rather, the Charter adds an additional requirement." But that requirement (in theory) delimits Congress's authority to declare war, even though that authority isn't delimited in the Constitution. (There's no mention there of "self defense," for example.) The requirement n the UN Charter, therefore, amounts to constitutional amendment by treaty. That's not how the Constitution is supposed to be amended.

2. You then say "After all, isn't this [surrendering authority to the UN] just what treaties are supposed to do? Treaties are voluntary agreements to refrain from certain acts that would, in the absence of a treaty, be perfectly within a nation's right to carry out." That's true in the case of the United States only if you accept the premise that a fundamental tenet of the Constitution can be amended by treaty. A treaty might require the U.S. to refrain from imposing a tarrif on imported sugar, for example, but that's merely an implementation of Congress's constitutional power to regulate international trade; it does not cede Congress's power to regulate international trade. Our membership in the UN, however, amounts to a general concession that the Security Council (not Congress) gets to decide when we are acting in self-defense and when we can go to war when we are not acting in self-defense (as the Security Council sees it). That is not parallel to the example of the trade treaty. Why? Because the provisions of the UN Charter with respect to war do not merely implement Congress's authority to declare war -- rather, they fundamentally modify that authority.

3. Therefore my reading of the Consitution wouldn't "simply...mak[e] all treaties unconstitutional." I have no problem with treaties that implement powers granted to Congress and the president (e.g., the negotiation and ratification of trade treaties). I have a fundamental problem with a treaty (the UN Charter) that circumscribes the power of Congress to declare war. That isn't an implementation of a constitutional power, it's a denial of a constitutional power.

7:17 AM  
Anonymous Mitch Ullman said...

Thomas, I'm not sure I see the difference between a limit of Constitutional powers and an implementation of such powers.

Adding a requirement seems, to me, to have no more impact than the limitation of tariffs that you gave as an example.

I could be reading you wrong, perhaps a better example or explanation is in order here?

11:57 AM  
Anonymous Brian Doss said...

Joe-

When I get home from work I intend to reply, of course over at my own pad ;), but in the meantime, you need to set up some sort of rss feed so that we can put your blog up in the aggregator.

Quick hit, though, is that I think my heirarchy of legal authority still applies and trumps the UN treaty; while not the same as a standard act of congress, it is not the same as a constitutional measure and the old saw of "no parliament binds another" holds true here absent constitutional bounds. A treaty is essentially an act of congress "plus", which means that while it is a bit tougher than simply overriding or repealing a prior act, it does not (and IMO cannot) rise to the level of precluding constitutional sources of authority, which is the authority to declare war wherever and upon whomever; therefore the AUMF/declaration of war by the Congress is both necessary *and* sufficient for legality of that war. It may also be true that some wars abrogate our treaty obligations while others do not, but that, I think, is a separate ball of wax.

4:04 PM  
Blogger Thomas said...

Mitch, I'll try to answer you by using some hypotheticals.

Let's say that the president wants to eliminate a tarrif on imported sugar, for the benefit of American consumers. He could achieve his purpose either by (a) proposing to Congress a unilateral repeal of the tarrif or (b) negotiating a treaty with sugar-producing countries, in which those countries reciprocally eliminate or reduce tarrifs on certain goods they import from the U.S. Congress (the Senate, specifically) is likely to prefer the treaty option because it has greater political appeal. But the treaty option doesn't change Congress's power to regulate international trade. A trade treaty is merely a politically preferable way in which to regulate (or de-regulate) international trade. The Senate, in ratifying the treaty, has not given up its general power to regulate international trade -- it has merely chosen to exercise that power in a particular way.

That's not the case with the UN Charter and Congress's power to declare war. In ratifying the Charter, the Senate essentially surrendered a good chunk of (if not all of) Congress's constitutional authority to declare war. (The president doesn't need Congress's authorization to repel imminent attacks.) Hypothetical example: Suppose that Country X, acting through sleeper cells planted in the U.S., mounts a devastating nuclear attack on several U.S. cities. Even if the U.S. were quickly to identify the source of the attacks, would a retaliatory strike (aimed at sending a message to the leaders of similarly inclined countries) be considered an act of self-defense under Article 51 of the UN Charter? Let's suppose that the Security Council would veto a retaliatory act because it appears to be offensive rather than defensive. (That's not a far-fetched scenario, in my view.) So, even though swift and sure retaliation might deter future attacks from other sources, a "strict constructionist" view of the UN Charter might well rule out such retaliation. (I think that the president would, in fact, act unilaterally and quickly obtain overwhelming if not unanimous support from Congress, but bear with me.) In other words, if the U.S. were to abide by the letter of the UN Charter (as interpreted by the Security Council, not Congress), the president and Congress would be prevented from taking actions that they judge to be in the best interest of Americans. That, it seems to me, vitiates the Framers' intent, which was to place the decision about going to war in the hands of the elected representatives of the people of the United States -- and certainly not in the hands of foreign powers.

To summarize: In the case of international trade, Congress is using a treaty as a way to exercise a constitutional power. In the case of war, a treaty (theoretically) prevents Congress from exercising a constitutional power. That's the difference, as I see it.

10:57 PM  
Blogger Joe Miller said...

Tom,

Hypothetical example: Suppose that Country X, acting through sleeper cells planted in the U.S., mounts a devastating nuclear attack on several U.S. cities. Even if the U.S. were quickly to identify the source of the attacks, would a retaliatory strike (aimed at sending a message to the leaders of similarly inclined countries) be considered an act of self-defense under Article 51 of the UN Charter? Let's suppose that the Security Council would veto a retaliatory act because it appears to be offensive rather than defensive.

I'm not sure that this particular example really works. If country X actually initiated the strike, then it has effectively declared war. So if the retaliation is aimed back at country X, then I fail to see the problem. That is perfectly legitimate self-defense, and not at all dissimilar to the U.S. response to Afghanistan following 9/11. I don't think that there are any legal problems at all with such a move.

If, on the other hand, you are advocating strikes against countries Y and Z because you think that they might someday do something similar to what country X did, then the Security Council would be right to deny authorization. If Congress or the President ordered such a strike anyway, it would be pretty blatantly unjust. I know that we disagree on this, but I think that preemption of the sort that I think you're suggesting here is justified only in the face of pretty significant evidence that some nation actually intends (as opposed to just desires) an attack.

11:34 PM  
Blogger Joe Miller said...

That's true in the case of the United States only if you accept the premise that a fundamental tenet of the Constitution can be amended by treaty.

I'm still just not convinced that the Charter actually does this. The Charter sets limits on Congressional behavior. It is an agreement that Congress will exercise certain of its powers only if certain other conditions are met. Yes, the Charter requires that Congress give up its authority to perform an action that it otherwise might have performed (namely, declaring an aggressive war). But the Charter does not sign over Congress' right to declare war. The U.S. still can go to war only if Congress approves it.

Here's a sort of SF hypothetical example. Suppose that the Senate ratified a treaty agreeing not to put weapons on spacecraft. (Actually, I think that there already is such a treaty, but I'm not positive.) Suppose, moreover, that the treaty stipulated that a nation could arm spacecraft with U.N. authorization.

A fleet of armed spacecraft would, I think, constitute a navy. And the Constitution gives Congress the power to fund a navy. Would such a treaty then be unconstitutional? I don't see why it would. It's simply an agreement that Congress will not act on certain of its powers unless certain external conditions are met.

11:45 PM  
Blogger Thomas said...

Joe, on the hypothetical about sleeper cells, you say:

"I think that preemption of the sort that I think you're suggesting here is justified only in the face of pretty significant evidence that some nation actually intends (as opposed to just desires) an attack."

Yes, but who gets to evaluate the evidence and decide whether the preemption is an act of self-defense? The UN Charter (in theory) takes that power from Congress and gives it to the Security Council. And that's my point.

In your next comment you say:

"The Charter sets limits on Congressional behavior. It is an agreement that Congress will exercise certain of its powers only if certain other conditions are met. Yes, the Charter requires that Congress give up its authority to perform an action that it otherwise might have performed (namely, declaring an aggressive war). But the Charter does not sign over Congress' right to declare war. The U.S. still can go to war only if Congress approves it."

You also give an example that involves the arming of a space fleet, which ends with this:

"It's simply an agreement that Congress will not act on certain of its powers unless certain external conditions are met."

It all comes down to the same question: Who gets to decide whether certain conditions are met -- Congress or an international body over which Congress has no authority? Answer: international body over which Congress has no authority. The U.S. (in theory) can go to war only with the approval of both Congress and the international authority. Again, I submit that that's an unconscionable violation of American sovereignty.

I guess we'll never agree on this point (among others), but I have enjoyed the opportunity to express my views in your forum. Thanks.

Tom

11:14 AM  
Anonymous Brian Doss said...

A day late, hopefully not a dollar short, but my response is up on CTLY, though it is similar to Thomas' critique.

The difference seems to me that you see treaties as over-binding (i.e.i.m.o inappropriately constraining).

In most of these cases you can, like the congress usually does, come up with some semi-plausible connection to what Congress is tasked with doing/authorized to do by the constitution and say a treaty not to do X is a limit on congressional power. True, but I think in a more trivial way than is being asserted. I can enter into an agreement to do Y with you or refrain from Y, but absent a controlling authority if I choose to back out of that agreement, the worst I get is reputational effects. Absent compulsion of specific performance (assuming a controlling agency), again I can dispose of my constraint without existential crisis (payment of a fee, etc).

I suppose that if going to war without Security Council approval was a generally recognized casus belli (sp?), that not only allowed but strongly presumed a duty to declare war on third party countries against the "aggressor", then I would tend to see the treaty as a functional constraint, but then still only from a realpolitik/military POV and not a legal one; and one could argue that such a norm is itself an aggressive act (or, rather, a constraint of that order levied on the US is inherently threatening and may by itself lead to pre-emptive war), though on the other hand that's pretty much the international consensus about first-use of nuclear weapons.

Furthermore, while a space navy example flows from the authorization to create a navy, there still is nothing specific about "you can form a space navy complete with weaponry, etc," while there is a very explicit grant of authority to declare war. Not just that "the congress can maintain a military and come up with rules about how to use it" but explicitly that the US congress can declare war, period. No ifs ands or buts. A treaty trying to gainsay the constitution in that fashion is trumped, which is why I think the congress is and should be relatively unconcerned with "legality" of declaring war/AUMF vs. your space navy example- the latter would seem to require, for the sake of propriety and respect for law, some sort of counter legislation acknowleding the breaking of the treaty, since there is no explicit out in the constitution. The former has said explicit out, and thus (as we see, usually) there is, if anything, a shrug about the UN treaty and no question of illegality in the US context.

(typing all of this into a tiny comment box means I can't easily see what I've written already, so pardon me if it goes astray somewhere...)

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