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War on Truth  From Warriors to Resisters
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The War on Truth

From Warriors to Resisters

Army of None

Iraq: the Logic of Withdrawal

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"If Congress accepts anything like Bush's proposed language, it will not only break with the UN Charter but also cede its right to declare war under Article 1."

by David Keppel:

If Congress accepts anything like Bush's proposed language, it will not only break with the UN Charter but also cede its right to declare war under Article I. I'm not sure how many realize that (or at any rate are prepared to acknowledge it). Superficially, the resolution resembles the 1990 resolution giving Bush Senior authority; actually, the 2002 resolution is radically different. In 1990, the authorization was tied to a clear criterion (Iraq's occupation of Kuwait); today, there are multiple, subjective criteria. Even if Congress removes issues such as property from 1990 and sticks to the weapons, that will of course be subject to manipulation by Bush. Congress will in effect be agreeing that the President, not the Legislative, has the right to go to war. (Please see the attached follow up letter to Ken Myers. [reprinted below])

If Congress wants to retain its Constitutional prerogative, it must do one of two things: vote now on a declaration of war, or vote on a resolution shorn of authority to use force. Hawks will say that the latter is too weak. But even a Senator who wasn't now willing to take an anti-war stand could point out that Iraq surely knows that if it hindered inspections, Congress could reconvene after the November elections to vote on a declaration of war. So far we are speaking only of the American balance of powers. In addition, the UN Charter requires explicit Security Council authorization. As Bruce Ackerman points out (see URL below) Congress must respect that or the US would effectively renounce the Charter. None of these procedural steps guarantees our success, of course. But they give us time -- and force members of Congress to face what they are doing. I think the Constitutional argument might carry some traditional conservatives (as against radical rightists) such as Lugar, Hagel, et al. They might agree that the substantive and legal issues are so important that Congress must follow a two step process, with the decisive stage after the elections.

It would be hard to overstate this administration's anti-democratic ambitions, both nationally and globally. The new national security document, for example, is an astonishing announcement that henceforth we will tolerate no rival. The Iraq war -- a disastrous mistake in its own right -- is all the more ominous in this context. I think that a few weeks will bring that home to other members of the Security Council, particularly the French and the Chinese. So again, we need time.


The Legality of Using Force

By BRUCE ACKERMAN (Printed in the New York Times on September 21, 2002)

As Congress confronts the prospect of war, it should consider some constitutional fundamentals. The Bush administration would have us believe that international law contains only ambiguous or advisory requirements. In fact, the United Nations Charter was ratified as a treaty by the Senate after World War II, and the Constitution explicitly makes all treaties "the supreme law of the land."

The president has no power to pick and choose among the laws that bind him — unless Congress tells him otherwise. This is what makes the precise terms of any Congressional authorization for war against Iraq so important. According to judicial precedents, treaties like the United Nations Charter can be trumped only by subsequent legislation. The Charter would lose its status as governing domestic law if Congress explicitly authorizes the president to make war in violation of its terms.

A narrowly written Congressional authorization for action against Iraq, however, would not violate the United Nations Charter and would not change the legal status quo. Under such an approach, Congress can make it clear that the country is ready to use force against Iraq, but only if this is consistent with Charter requirements.

The resolution that Mr. Bush submitted to Congress Thursday takes a much broader tack. It would allow him to use force without regard to the legal limitations imposed by the United Nations Charter.

This effort to gain greater authority contrasts sharply with the approach taken by the president's father. In the run-up to the Persian Gulf war, George H.W. Bush first obtained a United Nations Security Council resolution permitting the use of force against Iraq. Only then did he seek and receive authorization for war from Congress. This is by far the better procedure, allowing Congress to make the final judgment after it becomes clear that no peaceful resolution of the conflict is possible.

In contrast, the president's proposal lets him "use all means that he determines to be appropriate, including force" — even if he fails to gain further Security Council authorization. This goes far beyond anything allowed by the Charter, which restricts the unilateral use of force to self-defense against "armed attack." The president's resolution does not mention this crucial limitation. Instead, it converts self-defense into a broad doctrine that can justify unilateral pre-emptive strikes.
This represents a sharp break with past American practice. Even during the Cuban missile crisis, President Kennedy recognized the stringent limitations the Charter places on the right of self-defense. When intercepting Soviet ships carrying missiles to Cuba, he was careful to invoke the authority granted by the Charter to regional peacekeeping institutions. When America has invoked self-defense in the past, it was in response to clear threats by hostile nations to its soil or to its citizens.

The president's resolution does not assert that Saddam Hussein was involved in the Sept. 11 attacks, but claims an "inherent right" to act in self-defense against risks that do not pose a direct and immediate threat of armed attack. This is nothing less than the repudiation of the United Nations Charter's effort to restrict unilateral uses of force to extreme cases, and to make collective, multinational security measures the norm.

This is not the time for Congress to eliminate these long-standing restrictions on unilateralism. Its war resolution should permit the use of military force only after authorization by the Security Council. If the president concludes that the Security Council has reached an impasse that makes it impossible to deal with the Iraqi threat, he should then return to Congress to make his case for throwing off the restraints imposed by the United Nations Charter.
Only then should we consider the need to abandon legal restrictions that have guided America for two generations.
Bruce Ackerman is a professor of law and political science at Yale.

American Historians Speak Out 

'Consulting' Congress On Iraq Is Not Enough

Joyce Appleby is Professor of History Emerita and Ellen Carol DuBois is Professor of History at the University of California in Los Angeles (UCLA).

The nation stands on the verge of war with Iraq and American historians are speaking out. Consultation with Congress is not enough. A congressional resolution authorizing military action falls short. We believe the Constitution is clear: Congress must debate and vote on whether to declare war on Iraq.

Over 1,200 historians have signed our petition to that effect. We believe the president is flouting the Constitution, which explicitly gives to Congress, not the president, the power to declare war.

"We ask our senators and representatives to do this," the petition reads in part, "because Congress has not asserted its authority to declare war for over half a century, leaving the president solely in control of war powers to the detriment of our democracy and in clear violation of the Constitution." At noon today, Sept. 17, Constitution Day, we are delivering our petition to Congress.

Historians who have signed the petition include: Sanford Levinson of the University of Texas, Jack Rakove of Stanford University, David Beito of the University of Alabama, David DeLeon of Howard University, Melani McAlister of George Washington University, David Levering Lewis of Rutgers University; and Teresa Meade of Union College. Read the complete text of the petion and the full list of signers at

The Constitution is not a document to be selectively observed. Its provisions support each other. The balancing of powers was the device the Founding Fathers hit upon to prevent the tyranny of concentrated power. In writing Article I, Section 8, they balanced the president's power as commander-in-chief against the authority of the people's representatives to determine whether or not to commit the nation to war. There is no ambiguity of original intent here.

After weeks of resistance, the president finally said he would consult Congress and seek a resolution authorizing the use of military force. The announcement quieted many critics and media commentators, but it should not have. It is a deceptive distraction. A resolution might be only a vaguely worded affirmation of the dangers of Saddam Hussein's weapons of mass destruction. By contrast, a vote on a declaration of war would involve Congress in a sober assessment of the costs, risks, and wisdom of a preemptive strike at Iraq.

Inadequate as mere consultation is, President Bush has undercut even its limited value by telling audiences he doesn't expect any debate on Capital Hill to alter his position. This imperious response does not sound like a man who once swore to uphold the Constitution.

A preemptive attack on Iraq is not like invading Grenada or Panama. The stakes are much higher, the risks far more serious for the nation and the world. That's why Congress must debate whether or not to declare war and then take a vote. A resolution that is less than a declaration of war might satisfy those people who think Congress should have a say in the matter, but it would not satisfy the Constitution. Either Saddam Hussein has pursued a path that requires us to wage war against him, or he has not. Article 1, Section 8 of the Constitution is not about police actions or interventions -- it is about war.
Congress must debate whether to declare war and then take a vote.

The last time a president asked Congress to declare war was on December 8, 1941, the day after the Japanese sneak attack on Pearl Harbor. Presidents since then have preferred the flexibility of undeclared wars, proxy wars, covert wars, and United Nations action -- a trend that has eroded congressional authority. While the clandestine nature of Cold War operations helps explain this, it in no way justifies a further expansion of executive power at the expense of the legislative branch.
Who remembers America's past ways of conducting foreign policy? Historians do. We cultivate the memory of our nation's principles and practices. In this spirit, over 1,200 American historians have turned to an old tradition -- petitioning Congress for redress of grievances. We hope to call members of Congress back to their duty and contribute to a rejuvenation of civic culture in this, the oldest democracy on Earth.

We stand at a historical crossroads -- the nation will either return to its constitutional provision for making war or continue the baleful practices of the Cold War and its for-us-or-against-us mentality, its imperial presidency, and the suppression of dissent. At the very time that people around the world are restive under despotic governments, we should show them how democracy works.

Whatever position individual Americans may take on a preemptive attack on Iraq -- for, against, or undecided -- they should urge their Congressional representatives to muster the facts and arguments and bring them to bear in open debate: Should we or should we not declare war on Iraq?

If we must consider the untested doctrine of preemptive war, let us rely on the well-tested Constitution to guide our decision. That course alone can give legitimacy to the initiative.

Mr. Kenneth Myers
Legislative Assistant for Foreign Policy
Senator Richard G. Lugar
306 Hart Senate Office Building
Washington, DC 20510

Dear Mr. Myers:

Thank you very much for speaking with me over the phone yesterday afternoon. The two thousand Indiana citizens associated with this MoveOn initiative on Iraq appreciate the opportunity to communicate with Senator Lugar. I hope that we can stay in touch.
May I follow up on a few points that arose during our conversation?

“The situation – at least Constitutionally – is similar to 1990-1.” I believe that it is radically different. In 1990, Iraq had invaded Kuwait. The Security Council issued an ultimatum in August and, following Iraq’s failure to comply with it, authorized force in November. Congress passed a resolution in support of the ultimatum. The key point is that there was a clear criterion: would Iraq withdraw? Historians might debate lost possibilities to negotiate withdrawal, but at least the result was unambiguous: Iraq was still in Kuwait.

Today, however, we are considering a preemptive attack on Iraq. Nominally the Bush Administration claims its purpose is to enforce Security Council resolutions. But Iraq’s possible violations do not involve a large incontrovertible fact such as occupation of Kuwait. Contrary to the President’s claims, the war-making authority in Resolution 678 expired when Iraq was expelled from Kuwait. Though Iraq may well be in violation of resolutions on issues such as the repression of its civilian population and the return of Kuwaiti property, these are not valid grounds for war. The President accuses Iraq of harboring terrorist organizations, but so do sixty-five nations, and, in the opinion of most experts, Iraq’s links to Al Qaida are notably weak. The point is that the President has sent Congress a resolution that guarantees he will be able to find a reason to go to war. Rather than enforcing an ultimatum, Congress would simply be surrendering its war-making authority. That is why the appropriate Constitutional instrument is a vote on a declaration of war.
Even the question of weapons of mass destruction, in Resolution 687, requires time and judgment. United Nations weapons inspectors are returning. It is possible, as you say, that they will miss something. But is this possibility a valid ground for attack – either legally or prudently? Secretary Rumsfeld claims the right to act in the absence of evidence; every tradition in western law suggests otherwise. You point out that our confidence in inspections will grow the longer the inspectors have to work. Yet the Bush Administration has no intention of waiting.

If Congress – like the overwhelming majority of the international community – wanted to see whether the inspectors meet Iraqi cooperation, it should pass a resolution without war-making authority. Iraq still would have every incentive to cooperate: if it hindered legitimate inspections, the Security Council and Congress could take appropriate action.

If our purpose is truly to curb weapons of mass destruction, we should ensure that inspections are limited to hunting weapons. (This is why Rolf Ekeus's statement, which I cited, is relevant – whatever Mr. Ekeus may also have said about Iraq. It is why we should welcome the initiative of an “honest broker,” such as Canada, to monitor the inspection process.)

We should not imagine we are going to war in order to enforce Security Council resolutions. They are at most the pretext. If we were serious about Resolution 687, for example, we would seek to make good on its commitment to make the Middle East a zone free from weapons of mass destruction and to achieve a balanced and comprehensive control of armaments in the region.

“You don’t favor establishing a balance of terror, as we had with the Soviets?” Of course not. Nor is it likely: Iraq is infinitely weaker than the USSR. The point, however, is that the Bush Administration claims that even though weapons of mass destruction are proliferating to a growing number of countries, Iraq is a unique threat. Vice President Cheney and others cite Iraq’s use of chemical weapons on the Kurds in 1988. Yet at the time, the United States was giving Iraq covert help in battlefield planning. In 1990, when Iraq invaded Kuwait, US Ambassador Gillispie had made ambiguous comments to the Iraqi government that implied the United States would not be overly concerned. These were not failures of Iraq to heed deterrence; they were failures of the US to tell the Iraqis what was unacceptable. The difference is important, because it belies the Administration’s claim that preemptive war is necessary. If we could contain the USSR, we can certainly contain Iraq.

Senator Lugar understands that curbing weapons of mass destruction is a complex task requiring a comprehensive approach. Yet the Bush Administration has renounced, scuttled, or threatened virtually every significant arms control agreement, including the Verification Protocol to the Biological Weapons Convention, the Comprehensive Test Ban Treaty, the Nuclear Non-Proliferation Treaty, and the Outer Space Treaty. In its Nuclear Posture Review, the Administration undermines our commitment not to use nuclear weapons against non-nuclear states. These administration policies virtually guarantee continued proliferation. Attacking Iraq may only accelerate that, as others seek to rush past the post and acquire weapons of mass destruction in the hope actual possession would protect them from US attack (after all, we are not attacking China, or even North Korea).Senator Lugar has repeatedly called for a realistic discussion of the risks and costs of war. That discussion has vanished thanks to the simplistic terms of the debate and the misuse of patriotism shortly before an election. Yesterday, for example, you dismissed the risk that nuclear weapons might be used during the coming war. Yet Brent Scowcroft among others takes it seriously, should Iraq use chemical or biological weapons against Israel. What will be the effect on the Middle East of US occupation of Iraq? The optimism of writers at The Weekly Standard should itself be a warning. If we attack Iraq before making progress on the Israeli-Palestinian dispute, won’t we strengthen extremists on both sides and possibly lead to expulsion of the Palestinians from the West Bank into Jordan? Are not the chaos of war and the humiliation of US occupation of an Arab state likely to foment terrorism throughout the Muslim world? Will we not legitimate preemptive attack, only to see others use it in dangerous ways (India on Pakistan, for example)? The Senate would make a tragic mistake if it neglected these questions so that it could pass a resolution before it recesses for elections.

We urge Senator Lugar to reject any resolution authorizing the use of force against Iraq, and we urge him to work for a truly just and comprehensive policy to promote peace and the elimination of weapons of mass destruction.

With thanks and best wishes,

David Keppel