Absolutely this war is illegal without a UNSC resolution authorizing force. Do you support a unilateral (illegal) war?

The lawyers can make two cases, that I've heard. Hope I'm describing them correctly.

1)The 1991 ceasefire was conditional on Saddam disarming within 90 days. He hasn't, so the ceasefire could be considered void.

2)1441 provides the legal basis, even if another resolution isn't passed.

Anyway, Clinton went ahead in Bosnia and Kosovo without UN approval, so the precedent is already well set. And some people who had no such concern about violating international law in those cases have suddenly found it now that a Republican is President. Hmm.

Bush considers himself above the law just as Hitler did. I don't just mean he's arrogant either. I mean that his position is that in war time it is not appropriate for there to be any judicial or legislative review or limit on the president. And America is permanently at war now.

He is above the law.

If you look at how Bush handled the various terrorist detainee cases the argument was that the president's decision could not be challenged by the courts, not even in principle. He provided no evidence of any statements made to the court but instead merely stated that it was out of the courts hands.

You can argue the toss over resolution 1441 but Bush has clearly stated he will go to war quite regardless of what the UN does. So if France passes a resolution saying in so many words that the US cannot attack Iraq, Bush would feel free to ignore it.

Again Bush specifically stated that he didn't need Congressional permission for this war either.

In both cases his position is crystal clear -- while he might get some hired gun who cares about law to argue that his actions are legal, and while he might ask for permission, Bush simply finds it irrelevent except as a PR exercise. His stated position is that he is above the law.

Again you can see it's all just a PR exercise in that what he does doesn't reflect the authorisation he is given or asks for. Congress passed a resolution enable a war on Iraq only if Bush proved a link to 9-11. Bush simply ignores that constraint. The congressional resolution served its PR purpose. The details are irrelevent. Again the UN resolution Bush is asking for does not authorise war even if it was passed. This is irrelevent to Bush. It's just a PR stunt.

Bush didn't feel the need to obey the law in unsigning treaties for the Senate. He didn't feel the need to obey the law over the Geneva convention rights of POWs, the Nuclear Non-Proliferation treatuy or recently it seems, the Chemical Weapons ban. The list goes on and on. I'm sure everyone has their favourite examples. Mine would be that the president has decided he has the legal right to assassinate anyone (US citizens on US soil included) on the planet.

This is totalitarianism.

The question is NOT whether warbloggers feel any specific action by Bush is illegal. We're way beyond that. The question is whether they sign on to his idea that a war time president never has to obey ANY law even in theory.

I'm surprised you ask such a question, Sean-Paul. You ought to know that accession the UN Treaty did not bind any nation to act only under UN auspices.

Er....and now that I just read the Mark Kleiman piece you linked to, I have to say, it's a pretty sloppy piece of work. I'm sure you can find better.

What was sloppy about it Tacitus?

If invading Iraq would be a constitutional violation wouldn't the same have been true of Bush's attack on Afghanistan; Clinton's attacks on Afghanistand and the Sudan and deployments in Haiti, Bosnia, Kosovo, and Somalia; Bush's invasion of Panama, Reagan's attack on Libya, invasion of Grenada, and deployment in Lebanon; Kennedy's and Johnson's deployments in Vietnam; and Eisenhower's deployment in Lebanon?

Until this presidency, I don't recall anyone suggesting that military action is unconstitutional unless approved by the Security Council.

Where do I start?

1) "Invasion of Iraq without Security Council authorization" is not "a clear violation of the UN Charter."

2) The fraudulent Niger-Iraq connection "evidence" was already reported in the UK press as the work of a con man who duped Italian officials.

3) He gripes about the Afghan opium crop, which I find absurd.

4) He repeats the long-since discredited story that "the Bush Administration budget proposed exactly zero for Afghanistani reconstruction."

5) He thinks "Afghanistani" is a word.

6) He seems unaware that the Iraqi reconstruction effort will apparently be "the largest government reconstruction effort since Americans helped to rebuild Germany and Japan after World War II."

All in all, just very ill-informed.

"Until this presidency, I don't recall anyone suggesting that military action is unconstitutional unless approved by the Security Council."

Maybe people don't care for the unelected fraud. Not only that but the purpose of this war is to "democratize" the middle east. This isn't lobbing a few bombs into the Sudan they are planning a full scale assault on a nation and then planning to move into Syria and other countries, big freaking difference if you ask me.

1. Actually, it is but given the plethora of times that this has been overlooked in other cases it seems like it doesn't hold much weight.

2. It was still fake right? It was still presented as valid proof that Saddam was trying to purchase nuclear materials right?

3. The poppy crop is a failing, IMO, of this administration. This shouldn't be allowed to happen on our watch.

4. I have seen some of these "long-since discrediting" opinions that you talk about but they didn't convince me.

5. It will be a big deal to re-build Iraq after the pummeling they will get from our bombs and have gotten from our bombs. Who will pay for it? And why does it matter that it will be a big project?

"You ought to know that accession the UN Treaty did not bind any nation to act only under UN auspices."

That's false.

"Invasion of Iraq without Security Council authorization" is not "a clear violation of the UN Charter."

It is.

My comments on Sean-Paul's question are far too long to post here, I have blogged them here.

As to point number three in the linked article, if we don't allow them to grow the poppy how in the world is the US government going to have anything worth seizing to show they are winning the war on drugs? OK, yes, that was very sarcastic, but I couldn't resist.

I'm happy to wait for you to produce your evidence for those assertions, DavidByron.

On the other hand, why wait?

Les, point by point once more:

1) Read the UN Charter. There are provisos for war without specific UN action. There is also nothing dictating no action outside of UN auspices. Ergo....

2) Yes, you're right, but I was bringing up, as you requested, a point demonstrating Kleiman's lack of info.

3) We simply disagree about this. I'm against the "drug war," and I think that some economic activity is better than none.

4) Well, if actual items in the budget don't convince you, I'm not sure what would....

5) Again, my point was to demonstrate Kleiman's failing, as per your request, not get into relative merits of reconstruction plans.

I recall this question being thrashed around by Glenn Reynolds and Eugene Volokh, both professors of law at Univ. of Tenn. and UCLA, respectively. Volokh had more to say, I think, since he is specifically a professor of constitutional law.

As I remember, it went something like this:

a. The Constitution itself is the supreme law of the land, and it cannot be changed except by the established procedures for amendment.

b. Ipso facto, no act of Congress, including ratification of treaties, can usurp or modigy the provisions of the Constitution.

c. The Constitution clearly and unambiguously grants war authorization to the Congress, and war making to the executive. There is nothing in the text of the Constitution that grants such powers to the treaty-making power of either branch.

d. Thus, no treaty can supplant the clear Constitutional grant of war exclusively to the US government.

Before the liberals of the country protest, they need to think through the implications of the claim that a treaty supercedes the Constitution. It would potentially put every one of our domestic civil rights in jeopardy.

Points for Donald and Tacitus:
1) Without looking at the Charter... a pundit suggested that the UN can "delegate" actions to "UN-type" organizations. The example was NATO in Bosnia. So if NATO could go to war in Iraq, that would fit this model. This actually directly addresses Sean-Paul's post, which we've rather lost sight of.
2) A strict reading of the Constitution supports the argument that the war has to come back to Congress for a vote. It doesn't say they can sign away their authority there either.
3) I think Kleiman cited lack of aid to Afhanistan in support of his doubts over Bush's promises regarding Iraq. Bush made similar promises for Afghanistan, I think. Now I'm not up on this controversy, but it seems to me that budgeting $0.00 for Afghanistan, and then having money in the budget for it, are not mutually incompatible. You might do that when you get called on it. I doubt the story was made up out of thin air.
4) I'm all for the free market, and the war on drugs has its absurdities (and horrors), but are you really supporting the world heroin trade as a sign of economic growth? How do you feel about the world child pornography trade?

Surely you're not positing a moral equality between drug consumption and child pornography?

I'm not a lawyer. Don't take this as legal advice.

Under the Constitution, as interpreted by the Supreme Court of the US, treaties and statutes have the same force of law. (They are indeed impotent to amend the Constitution.) Therefore, the treaty or statute latest in time applies. The treaty or statute latest in time here is the Congressional authorization of force passed in October 2002. Some scholars debate whether such a Congressional authorization could be consitutionally sound, but the Supreme Court has never found one to be unsound.

The Congressional authorization is later in time than the UN Charter, ratified several decades ago. Regardless of what the UN does, Bush is authorized by US law to use force against Iraq. International law may be another matter.

The UN Charter is a treaty ratified under US law. Under Article 2(4) of the UN Charter, use of force is limited. Should no new resolution be passed, it is fuzzy whether force may be used against Iraq. This is because the US, the UK, Australia, and the other allies will claim that they are acting, with some evidence, in self-defense. Furthermore, the Bush Doctrine could (and I stress the word could) be evolving into a new precedent in international law for the justification of force. Such a precedent would be ripe as we now live in an age where non-state actors such as terrorist groups can wage war on the same stage that formerly was monopolized by states.

In summary, the imminent invasion of Iraq is not a significant moment in the law of the United States. It may very well be a significant moment for international law, however.

I'm not a lawyer. Do not take this as legal advice.

US Supreme Court, Reid v. Covert, 354 U.S. 1 (1957):

"This court has regularly and uniformly recognized the supremacy of the constitution over a treaty."

"No agreement with a foreign nation can confer power on Congress or any other branch of government, which is free from the restraints of the constitution."

I'll blog on this topic Tuesday 3/11.

Tacitus,
Please understand I am not critisizing you. I am just trying to understand the situation better and I want to hear both sides of the story. I repect your opinion so I asked you why you thought that was about Mark's comments. I don't want this to be an argument I just want to learn both sides of the debate. It is true that all too often we bloggers do get just one side of the story.
Thanks for your input.

I am against the drug war myself but I can't fail to see the irony of this situation in Afghanistan. Here is the party that loves the drug war and the newly "free" Afghanistan of their making becoming the world's largest dope dealer.

Ironic? Yeah, it is that.

Sean-Paul
While it may be true that our Constitution gives Bush the right to declare this war according to Andrew Hagen. (although I wonder about this because this type of war is "pre-emptive" and I don't know if the FF's allowed for that.)

In the International community it will still be considered an act of aggressive warfare and this is the same sort of sticky wicket that Hitler,and his co-conspiritors found themselves answering charges to in Nueremburg.

Not suprisingly the answers of the war mongers here display a contempt for the law. What other attitude can these latter-day nazis have?

Donald,
"Thus, no treaty can supplant the clear Constitutional grant of war exclusively to the US government"

But Congress never said to Bush "Go ahead and declare a war and just ignore any and all treaty obligations while you're at it."

To suggest that a license for a specific war means that you can ignore any laws concerning war is ridiculous. In fact it makes a mockery of any legislation concerning any war because if you are correct no legislation of any kind concerning war could ever have any application to any war. That's ridiculous.

Unless Congress very specifically passed a law reversing the treaty obligations of the UN charter ("unsigning") which they certainly have not and would not, then Bush is subject to all previous laws about wars in prosecuting any war.

The pure idiocy of this suggestion shows a complete contempt for the very concept of law.

Bush has not been given any authority to ignore the law including the UN Charter. Therefore if he breaks the charter he breaks the law and is a war criminal under US law as well as international law.

Andrew,
"The Congressional authorization is later in time than the UN Charter, ratified several decades ago. Regardless of what the UN does, Bush is authorized by US law to use force against Iraq."

I suggest you read the congressional resolution again then. It is not a carte blanche. It demands that Bush prove a link between 9-11 and Saddam before any attack for example. There are many conditions and limitations on the president's powers. They are called laws. Only one limitation was lifted by the congressional resolution (the required authorisation of congress).

To argue that asking the president to go to war means he can ignore all laws in prosecuting that war is as stupid as saying if congress asks the president to raise a tax that the president can --- say --- commit murder in prosecuting that tax. "Oh gee why can't the president murder folks - congress told him to!".

Idiotic argument.

Les,
"While it may be true that our Constitution gives Bush the right to declare this war according to Andrew Hagen"

That's NOT what he said. He said congress had that power. That is true, but congress did NOT and would not tell Bush to ignore the UN Charter so the fact that they have that theoretical right is utterly irrelevent.

Tacitus, least worth a reply,
"Read the UN Charter. There are provisos for war without specific UN action."

There are NOT.

Agonist you shouldn't believe such obvious bullshit as this,

"Under the Constitution, as interpreted by the Supreme Court of the US, treaties and statutes have the same force of law. (They are indeed impotent to amend the Constitution.) Therefore, the treaty or statute latest in time applies."

If that was true you could never have more than one law in existance because the next law would knock it out. On the contrary successive laws are presumed to be compatible with older laws -- unless they are really obviously supposed to be replacing or negating the older law (in these cases Congress usually specifically says that's what it is doing). If two laws appear to contradict (and congress didn't specifically indicate one abrogated the other) a court will proceed on the assumption that they are compatible with each other. To do otherwise would be to treat laws as an insane mismatch of arbitrary ramblings. I can't beleive I even have to say this.

I cannot beleive how idiotic this "argument" is. A real sign of how desparate the warmongers are? Or perhaps an indication that they simply don't understand the very concept of law?

I can hardly believe anyone took this BS seriously for two seconds. Agonist, Les -- you are slipping.

I'm not a lawyer. Don't take this as legal advice.

David Byron, you wrote:

"While it may be true that our Constitution gives Bush the right to declare this war according to Andrew Hagen."

That's not what I said. Then you made a different assertion, to which I now respond.

I am perfectly aware that the Congressional authorization of force has conditions attached. You may read a copy of the resolution on my web site. In my nonlawyerly opinion, the Congressional authorization does not require what you said it requires, however.

The passing of the Joint Congressional Resolution does in no way relieve the US of its treaty obligations, including those under the UN Charter. My point was that the passing of the Joint Congressional Resolution clears the path, to the extent that all necessary conditions are satisfied, for military force under US law.

Article 51 of the UN Charter authorizes member nations to use force against other nations under a limited set of circumstances, such as in self-defense, without Security Council approval. There is a longstanding legal argument over how broad this exception is. This was the exception that President Reagan cited in the 1986 attack on Libya. Many international lawyers argue that the exception is not broad and does not allow action such as the 1986 Libya action. Many others argue that it does allow for such. This is an issue that I do not take any position on at this time.

Finally, I would like to state my wish that the peace movement were as devoted to Iraq strictly obeying international law as it is devoted to the United States strictly obeying both international law and its own.

I have no desire to continue this discussion. Thus, this will be my final word here in this thread.

I'm not a lawyer. Don't take this as legal advice.

There are NOT.

Article 51, kid.

And I might add that the UN Charter does not purport to be a holistic framework for state to state relations.

David B
You are correct I just re-read what I posted and realized my error when I saw your comment below it. I will add that when Congress voted to give the Pretzeldent the power to start a war I believe it was un-Constitutional for them to do so.

Les,
I don't think that congress acted unconstitutionally. But that's another story.

Andrew,
you don't seem to be able to check out a quote from even within this thread of comments so I am not suprised that you can't read the UN charter.

"My point was that the passing of the Joint Congressional Resolution clears the path, to the extent that all necessary conditions are satisfied, for military force under US law"

It does not because the UN charter is US law.
What you said is simply a lie. The UN charter isn't even the only treaty that limits war of course, but it is the main one.

"Article 51 of the UN Charter authorizes member nations to use force against other nations under a limited set of circumstances, such as in self-defense"

That's also false Andrew. The article sets out no circumstances except self-defence and in addition sets more criteria besides self-defence which must also be met. It specifically says an armed attack must occur. No armed attack by Iraq against the US has occured has it Mr "I'm not a lawyer"?

"I have no desire to continue this discussion."

I'll just bet you haven't.

"There is a longstanding legal argument..."

Bullshit. Find me a credible international law expert that says America can use article 51 against Iraq.

Here's the article's complete text. You'll note that it lays even more criteria beyond those I have mentioned such that even if Saddam was proved to be behind 9-11 (Bush's wet dream scenario) it would still not be legal for America to attack at this time.

"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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

Tacitus: Glad to see you stick to being a cheer-leader.

I have no opinion whether the war will be illegal under American law, though I think America is an inferior democracy for delegating the decision about declaring war to the government. This should be debated and decided in Congress.

Under international law, the war is illegal. There is really no need for much discussion about this point. It's obvious. But I do give some reasons on my blog:

http://k.lenz.name/LB/archives/cat_illegal_war.html

The article sets out no circumstances except self-defence and in addition sets more criteria besides self-defence which must also be met.

Anything about violating ceasefires?

Under international law, the war is illegal

Who enforces the so called "international law"?

No there is nothing about ceasefires Stan. What's the matter? Couldn't you handle the big words? I have not seen a case made by anyone that this war would be legal under either international or US law -- which of course includes the relvent international laws since they are treaties America has signed.

The UN charter is crystal clear. Starting a war is illegal. Period. There are no exceptions. There's no "pre-emptive" rules. There are no funny rules about ceasefires either. War is criminal.

Let's have some of the geniuses who support the nazis, point out where in the UN charter it says America can attack Iraq.

The UN charter is crystal clear. Starting a war is illegal. Period. There are no exceptions.

Sorry, but it's UN's failure to enforce these laws that made them irrelevant.

Let's have some of the geniuses who support the nazis, point out where in the UN charter it says America can attack Iraq.

Who supports the nazis?

So you agree Bush is a war criminal Stan? And you and your pals are the new nazis? You agree you are breaking the law? Is that what you just said?

I begin to wonder if you really understand the words you write sometimes. That first sentence of yours doesn't make any sense. To me it sounds like a cliché that you are parroting out of context. You have no idea what it means even in context, but you know it is negative about the UN so you throw it out in defiance of the statement I made about Bush's war being criminal.

Maybe you should just have asked if I wanted any freedom fries with my order?

Were you really trying to make a cogent reply? If so the closest that I can figure is that you meant to say (1) that I was correct to say that the war is criminal and (2) that you defy the law and think it is unreasonable.

But if that is true then on what basis do you claim that Saddam's invasion of Kuwait was bad? If right makes right then the Kuwaitis were surely in the wrong.

I guess it's just too easy to poke fun at your incapacity to make sense. Does anyone else want to try and raise an argument that Bush is not pursuing a criminal war?

So you agree Bush is a war criminal Stan? And you and your pals are the new nazis? You agree you are breaking the law? Is that what you just said?

Is that what I just said? You are foaming at the mouth already.

That first sentence of yours doesn't make any sense.

It's not my fault that you have a room temperature IQ. I said Sorry, but it's UN's failure to enforce these laws that made them irrelevant.

According to the dictionary law means:

1. A rule of conduct or procedure established by custom, agreement, or authority.

I hate to break it to you, David, but Germany said that they won't be a part of this war even if the UN approves it!France said that they won't support the war against Iraq no matter what!. Hence no regard for UN or its resolutions. Keep in mind that both France and Germany voted for the resolution 1441! They are making the UN irrelevant!

Another definition from the same source:

The body of rules and principles governing the affairs of a community and enforced by a political authority; a legal system: international law.

Seems like "enforced" is a component of the definition.

But if that is true then on what basis do you claim that Saddam's invasion of Kuwait was bad?

If you want to argue from that point, then why don't you follow it through... If right makes right then the Kuwaitis were surely in the wrong... , then right makes right and now Iraqis are in the wrong.
Perhaps if I was able to drop my IQ ~50-70 points, me and you would have a nice conversation.

Does anyone else want to try and raise an argument that Bush is not pursuing a criminal war?

While you are at it, please remind fellow bloggers that you are a communist. Then try to remind them of the last time a communist endorsed anything that America did.
Thanks.

Stan why didn't you answer my question, you little surrender monkey you! C'mon Stan, don't turn yellow on me. If you agree Bush is a war criminal then have the stones to say so.

If you agree Bush is a war criminal then have the stones to say so.

Huh? When did I ever agree to that?
Are you glad the US won the Cold War?

What Cold War?
You mean the excuse for American imperialism before "the war on drugs" and the more recent "war on terrorism"?

You seem to be trying to change the topic oh cheese-eating one.

You mean the excuse for American imperialism before "the war on drugs" and the more recent "war on terrorism"?

BINGO!

You seem to be trying to change the topic oh cheese-eating one.

No. I am making the same point I was all along. I wouldn't expect a communist to say anything positive about the US when it comes to anything.

I've said something positive about America before Stan. Even on this blog. Now let's hear you say something positive about Communism please.

David, sure thing. Communism might only make some sense *theoretically*. Like if you assume that all people have the same ambitions, same dedication, same integrity. All the people will be hard working, and ofcourse the gov't will be for the people. In reality that is just not true. People are *different*.
My great grand father was killed by Stalin in 1938. My grandfather was a card carrying commie right up to when we left USSR. As I said before, when he came here and saw how people live (working people) he saw that he was duped for all those years.