Disarmament vs. Liberation
Jacob Sullum | April 9, 2003, 2:47am
Now that Baghdad has fallen, you have to wonder yet again why the Iraqi regime has not used chemical or biological weapons against U.S. forces. Earlier in the war, the speculation was that Saddam did not want to alienate world opinion and vindicate the Bush administration by using weapons of mass destruction he has long denied having. Instead, the theory went, he was counting on a bloody, drawn-out battle for Baghdad to compel a settlement that would allow him to remain in power. But now he (or whoever is in charge now) has nothing to lose.
Could it be that Iraq never had a siginificant WMD capability? So far the search for evidence of one has turned up nothing but false alarms. A lot of ground remains to be covered, of course, but the administration's decision to play down disarmament as the war's goal seems to anticipate the possibility that nothing much will be found.
If so, will it matter? Even before jubilant Iraqis started pouring into the streets, waving improvised flags and tearing down Saddam's statues, "Operation Iraqi Freedom" had metamorphosed from a pre-emptive act of self-defense into a humanitarian mission to rescue people from a brutal dictator. It's hard not to rejoice that Iraqis are finally free of Saddam, but it is also hard not to worry about the precedent set by their liberation. A policy of using our military to free oppressed people would lead to war with half the world.
James Merritt | April 9, 2003, 11:07am | #
Lazarus: Our founders explicitly said that we should not and that our nation was not intended to get involved with entangling alliances overseas, or with pre-emptive dragon hunts. Those ideals are the subtext for the American system that was created all those years ago, and in fact, the syustem doesn't work well unless in support of those ideals. We keep having to contort it in order to serve other ideals, including the currently fashionable one of exporting freedom at gunpoint to the oppressed peoples of the world. Our originally-envisioned role was to make America a shining beacon that would engage in trade and cultural exchange in friendship with the peoples of all nations, inspiring THEM to adopt our ways through persuasion. Instead, we now go trolling for fights overseas. Whatever the good consequences of those adventures, there will be bad consequences too, but there would be NO consequences if we simply tried to live up to the founding vision of a nation that would perfect itself within and mind its own business in matters of politics and military intervention.
Xrlg: The fact of the matter is that the constitution requires a declaration of war, the congress knows how to declare war, and it did not. The resolution it passed was more suitable for going after pirates, not for the full commitment that wars require. You may say this is "pseudo-constitutionalist" reasoning, a mere matter of syntax, or a canard, but it is nothing of the kind, and your glib dismissals can't make it so. The Congress cannot cede its warmaking authority to the President. Because they tried to do it, and because the President ran with the ball they tossed him, the congress reps and senators deserve to be defeated in 2004 and any election afterward, as does the President. Indeed, he deserves impeachment. The best excuse for making war on Iraq so far, by far, was to topple the brutal dictator Saddam Hussein and liberate the Iraqi people. That is, however, insufficient as a reason for America to go to war. Had there been a real debate in Congress, centered around the proposal of passing a formal declaration of war, I believe the bankruptcy of war rationales would have been determined, and no declaration would have been made. We'll never know now, but in fact, the requirement for a congressional declaration of war was an attempt to force a formal debate with the participation of the people, lobbying their representatives, insofar as the urgency of the situation permitted. We had plenty of time to think THIS one over. Congress and the President bungled it, and I can only hope they pay in the elections of 2004.
James Merritt | April 10, 2003, 1:31am | #
Xrlg says, "The Constitution states that Congress has the power to declare war. It says zero, zip, nada as to what form that declaration should take."
True, but I also spoke in my earlier posting about the importance of observing the traditions and proprieties of due process as established throughout the decades and centuries. The Congress has declared war before, and has an established protocol for doing that. You can see the latest manifestation of a proper declaration of war in the 1941 resolution that put us at war with Japan. There is NO QUESTION that such declarations put us at war. In contrast, where in the resolution that was passed last October is it made clear that we are now (or on some specific date in the future) will be at war? With whom? All of this must be inferred from the language, and whenever you require people to infer things, you open the door wide to improvisation, mis-interpretation, and a host of syntactic and semantic problems that cause confusion. The average guy expects that a declaration of war will, at very least, declare that we are at war with someone in particular, regardless of the details that follow. If you're going to force people to read the document and walk away saying, "hmmm ... that looks like we'll be going to war with Iraq," as they scratch their heads, you haven't done your job. There should be no doubt. If you are going to say that the October resolution is a declaration of War just because members of Congress now assert it is, even though they didn't bother to say so explicitly in the text itself, then you are leading us away from the principle of clarity and straightforwardness that was established in and by the Constitution itself. Is that what you really want to do?
Who would disagree that a state of War is our most serious military situation, requiring a national commitment far and beyond that necessary for an operation to go after pirates or the like? Both war and piracy reprisal were authorized separately in the Constitution. Most of what we have done militarily, since WWII, has, in effect, been authorized by treaty obligations or the piracy reprisal function, and so Congress has been able to rationalize its avoidance of a real declaration of war, even when (as with Vietnam) the level of national commitment required was exactly that of a state of war. Those earlier bending (breaking?!) of the rules of warmaking were wrong, and we made a lot of noise about cleaning up our act after each one. Finally, a situation comes along that is PRECISELY what the constitution and the people who wrote it would consider a straight-up war, and we abandon previous war declaration forms, which the Congress itself had established. Since previous declarations of War were clear, and the resolution which you claim serves as as a declaration is ambiguous, bearing more relationship to recent resolutions for recent adventures that were explicitly NOT called "war," it is reasonable to challenge the resolution's legitimacy as a declaration of war. Why does xrlg deny the reasonableness? It's a hell of a lot more reasonable than bombing a residential district in downtown Baghdad. And that's the point, isn't it? We observe the protocols and pursue the due process to avoid depriving people -- our own citizens and other people -- of life, liberty, and the pursuit of happiness. Clearly, when the first is lost, the other two really don't matter.
Xrlg says, "only Congress itself would have standing to challenge the supposed violation. This is the main reason why every attempted lawsuit on this tortured theory has been thrown out of court."
Yes, most of the challenges to mischevious and illegal military adventurism seem to have been rejected on the grounds that the people bringing the suit didn't have standing -- the actual facts and merits of the cases weren't even considered. This is why the voters have a role here, needing to fire the congress reps and senators that won't uphold constitutional due process provisions, because if the congress won't police itself, only the voters are competent to do so, at election time. (As a side note, it is interesting how, when due process works for xrlg's side of the argument, xrlg bring it up, but when I challenge something on due process grounds, I'm hauling out old canards and relying on "tortured theories." I think I know the name of that tune.)
Xrlg says, "If you are that sure that you are right and the rest of the world is crazy ..."
That's a cheap spin in an attempt to marginalize me and my argument. Grow up. Who will deny that war, even war that is pursued with care and in service of a just cause, is full of insanity? The people who wrote our constitution knew that first-hand, and did what they could to make it DAMNABLY difficult for the US to make war EXCEPT after severe provocation, for good cause, and after due congressional deliberation involving contact with constituents. It isn't as if I am anywhere near being alone in pointing this out, and raising objections on that basis. We hear a great many in Washington today saying that the debate concerning the war was too skewed and truncated, and that matters which could have been pursued at leisure were hastily arranged. This kind of chatter sounds uncomfortably close to an accusation -- even a confession -- that the clearly intended, difficult, deliberate process was subverted (and, to be fair, not for the first time, and not first with this administration). With something as serious as war -- people on both sides die, remember? -- there should be no doubt about the basics. Congress and the President should bend over backward to make sure of that. The fact that they did not in this case is a scandal.
Xrlg says, "Impeachment is reserved for treason, bribery and other 'high crimes and misdemeanors.' Even if your pseudo-constitutional analysis were correct, all it would show is a constitutional violation, not a crime..."
An actual violation that entails subversion of the spirit of the constitution with the result that people die and billions of dollars are spentunjustifiably sounds like a high crime to me. Let me ask you, if the President held someone incommunicado for years without trial, without warrant, without even charging them of a crime, and it was determined that this was a violation of the detainee's constitutional rights, would not that be a "high crime" or at least a "misdemeanor" that would qualify for impeachment (at least if it came out that the President acted deliberately, with an understanding of the constitutional issues and an attitude of letting the chips fall where they may)? I certianly wouldn't dismiss the claim out of hand. And that's just talking about the oppression of ONE person. So how much worse is making war without proper authorization? A more important question to ask is, WHY didn't the President and the Congress travel the well-worn path to declaring and prosecuting war, when the process was straightforward and well-understood, and when we appeared to have plenty of time to let that process work? Might it perhaps have been because they didn't think they could pass a REAL declaration of war after the congressional debate that would have necessarily preceded such a declaration? If so, what does it say that the White House took the resolution and ran?
The Constitution doesn't say that the Congress or the President are empowered to keep and deploy a standing military however they please, whenever it suits them. It says that they can declare war -- an historically well-understood relationship between nations -- or they can go after pirates and the like. They can maintain a Navy, and can conceivably misuse it, but the obvious purpose of that service was to make war -- declared war -- at sea, and to intercept and engage hostiles away from our national coasts. The President and Congress are not empowered to create a global police force, to dispatch the military for humanitarian welfare missions overseas, or to arbitrarily spank nations we don't like, or whose leaders we wish to replace. Maybe some of those kinds of things are ACCOMPLISHED by piracy reprisals or declared wars. But the primary reasons for military deployment need to be consistent with the constitution and its emphasis on the federal function of national DEFENSE, not arbitrary offense. This is the kind of issue that would be raised during the national debate over a declaration of war -- a debate that some doubt ever took place, and that others are now saying was, at very least, highly truncated and one-sided.
Xrlq | April 10, 2003, 3:35am | #
Keep it up, James, you're digging yourself in deeper and deeper:
"The fact of the matter is that the constitution requires a declaration of war, the congress knows how to declare war, and it did not."
Wrong. The Constitution states that Congress has the power to declare war. It says zero, zip, nada as to what form that declaration should take.
"The resolution it passed was more suitable for going after pirates, not for the full commitment that wars require."
That is your opinion, but it has nothing to do with the Constitution. Even if it did, it would concern a power that is exclusive to Congress, so only Congress itself would have standing to challenge the supposed violation. This is the main reason why every attempted lawsuit on this tortured theory has been thrown out of court.
"You may say this is 'pseudo-constitutionalist' reasoning, a mere matter of syntax, or a canard, but it is nothing of the kind, and your glib dismissals can't make it so."
That is true. It is not my "glib dismissals" that makes it so; it is the fact that your pseudo-constitutionalist canards lack any foundation in the constitution or court precedent that makes it so. What matters is substance, not form, and there is no question that Congress (except maybe John Kerry) knew full well what they were voting to authorize.
"The Congress cannot cede its warmaking authority to the President."
That is your opinion, though it bears noting that the Constitution is silent on that issue. It is not necessary to determine that here, however, as Congress
did authorize the war months in advance.
"Because they tried to do it, and because the President ran with the ball they tossed him, the congress reps and senators deserve to be defeated in 2004 and any election afterward, as does the President."
Here's where you really start to go off the deep end. If you are that sure that you are right and the rest of the world is crazy, well...
"Indeed, he deserves impeachment."
And here is where you finish the job. Impeachment is reserved for treason, bribery and other "high crimes and misdemeanors." Even if your pseudo-constitutional analysis were correct, all it would show is a constitutional violation, not a crime, and certainly not an impeachable one. Shall we also impeach every Congressman who voted for term limits or a line-item veto, both of which were ultimately held unconstitutional?
C.Bergerac | April 10, 2003, 4:10am | #
What did we do to inspire the Romanians to revolt, and ultimately kick Ciaocescu to kindom-come? (Zip, zero, nada, my friend.)
As for Osama Bin Laden -- he's dead.
Saddam Hussein? Dead, too.
But the media has been instructed to report that they are "nowhere to be found." Still "alive" somewhere.
So why do they want to keep them alive?
Bogeymen.
The powerful need bogeymen. They need to be able to holler "boo!" to the uninformed and the uneducated.
Why?
TO MAINTAIN THEIR POWER. That's hard to do without some bogeyman; without some "crisis" looming somewhere.
It's old hat. Caesar did it; Napoleon Did it; Hitler, Marx, Lenin, Stalin, Mao -- they all did it.
Yeah, I know the retort: "You equating the U.S. with those monsters?!"
No, of course not. But it's only a matter of degree. The nefarious schemes are still the same. THE POWERFUL, IN ORDER TO MAINTAIN THEIR POWER, MUST HOLD UP SOME BOGEYMAN BEFORE US. Search current and past history and prove me wrong. Please.
Gary Gunnels | April 10, 2003, 4:16am | #
Lazarus Long,
"We are in a safer and more libertarian world, with a War with a minimum loss of life and liberty" - This is a claim, its not an argument.
"Then you are maintaining that toppling Saddam had no viable affect on liberty. That is a pretty stupid argument, as I can see hundreds of Iraqis running free around the capital, released from prisons, dead secret police, etc."
Actually I am maintaing that I don't know that if such is the case, not if it has had or has not had such. There is a difference, a very clear difference, between the two.
"This wasn't a rule. But it was a useful guide when talking about the operational strategy of the war, of which *neither of us had any clue about*."
I am simply applying your guide to a situation where we also equally have no clue. In other words, I am asking you to be consistent between the various areas where we are clueless.
"I am pretty sure Saddam is toppled however. That doesn't seem to be an uninformed/clueless position. That seems to be a substansive fact -- which means it is completely reasonable to dicuss the conseqences."
I have no issue with discussing the consequences, however I reserve the right to view your certitudes with a grain of salt. The fact that Saddam is out of power doesn't neccessarily lead to all the things that you claim it leads to. These are at best your hopes, they are not necessarily the future reality.
Zev Sero | April 10, 2003, 8:25am | #
Whew! There's no way I can respond to all of that. But here are a few more comments:
Declarations of War: The constitution says that only Congress can declare war; it doesn't say that the President (as CinC) may not engage in hostilities without one. What's more, the Supreme Court has ruled that if someone attacks
the USA, or declares war on it, the President can recognise that a state of war already exists, and can act on it, without any declaration from Congress.
The War Powers Resolution (which is simply Congress's view of the extent of its power - no President has ever accepted it) says the President should, if possible, consult Congress before engaging in hostilities, should in any case inform Congress within 48 hours of having done so, and should not continue hostilities past 90 days without permission from Congress, and should stop hostilities at once if Congress explicitly directs him to do so. The authorisation that Congress gave the President satisfies the War Powers Resolution - the power to declare war certainly includes the lesser power to authorise hostilities short of war.
The most obvious reason why the President didn't ask for a declaration of war is that until the last minute he held out the hope that Hussein would see reason and some sort of arrangement could be worked out, avoiding the need for war. A congressional declaration of war was the last thing anyone wanted; the resolution that was passed gave the President the authority he needed to threaten war, and the ability to use that threat to negotiate peace, if there was one to be had.
Who would win US v USSR in late 1945? I can't say for sure, but I'd bet on the USA, and I definitely think it would have been worth trying. One big point in our favour - for a few years, we had the bomb and they didn't. We'd just shown the world that we were prepared to use it; would Stalin have bet that we wouldn't do it again? And with Stalin gone, we wouldn't have to get involved in saving Western Europe and Greece from Communism.
Washington warned the USA against foreign entanglements when it was a tiny and weak country, eager to play European politics but liable to get burned. You tell a five-year-old not to play with matches, but the same doesn't apply to an adult. Now that we can defeat tyranny, we should do so at least now and again, though we are never *obligated* to do so if it doesn't suit us, or if the risk appears too great.
James Merritt | April 10, 2003, 12:52pm | #
On further reflection, Xrlg, would you stand for a "search OK" or a USA PATRIOT approved "secret" search warrant if it were YOUR house, or would you stubbornly insist on that old canard of a "constitutional" search warrant, properly served? Would you sit idly by and let congress define the legal meaning of religion to exclude yours, or would you rely on that old canard of the first amendment and its command to congress to "make no law"? If you were on trial for your life or for the right to stay in this country, would you accept conviction based on the testimony of secret witnesses, or would you challenge them to face you, in open court, according to that old canard, Amendment 6? Do you accept the idea of retroactive taxation, or do you resist based on the old canard of constitutional prohibition of bills of attainder and ex post facto laws?
Due process, respecting and emulating traditional forms, protocols, and language, is important. Government respect for citizens under constitutional authority is important. When deliberating to end people's lives, whether in criminal sentencing or warmaking situations, attention to all the formalities and technicalities is especially important.
It strikes me that the kind of thought processes that dismiss a call for a formal, constitutionally required declaration of war before war is waged, are similar to the kind of thought processes that can find a way around the requirement for a search warrant, or a way to suspend habeus corpus, or a way to enact an ex post facto law, or a way to engender double jeopardy, or a way to define completely intrastate commerce as "interstate," and on and on.
The roadblocks and formalities are there for a reason. The person who understands the reason respects that and deals with the system as it stands, or at least works to change the system in ways and toward forms that still respect the underlying rationale. The person who doesn't understand the reason, or who disagrees with it, sees only impediments, obstacles to be overcome by any means necessary. In sweeping away the impediment of the bathwater, they frequently dispense with the baby as well, leaving us all a little less protected than we were before. I'm tired of letting people get away with that kind of garbage. Enough!
James Merritt | April 11, 2003, 2:46am | #
I came back to this thread today and read from the bottom up, so if I don't respond to a pithy comment from someone who responded to me in a message from a few days back, sorry. I'll try to get back to the middle of the thread later.
Gary Gunnels says: "James Merrit,
Congratulations on the 'Longest Post' award."
I guess the real question is whether you or anyone found value in it commensurate with its length. To the extent not, I wasted my time and yours. But to the extent so, why worry about the length? On the other hand, speaking of length ...
Rover says, in a post I quote in its brief entirety: "If 'Declaration of War' and an 'Authorization of the use of Force' are the same, then why didn't Congress just make a 'Declaration of War' and avoid even any hint of impropiety?
It's because they aren't the same thing and the Congressmen know it."
My point exactly, which may have been buried in the length of my several posts. Thank you for making it so succinctly, and shining the spotlight on it as you did.
Zev says: "the Supreme Court has ruled that if someone attacks the USA, or declares war on it, the President can recognise that a state of war already exists, and can act on it, without any declaration from Congress." So, where and when did Iraq create this de facto state of war? The important thing is that the PRESIDENT doesn't get to fabricate the state of war from rumour or innuendo. The enemy gets to do that by taking specific, unequivocal acts: attacking us or declaring war against us. The only other body that can create a state of war for the US is the Congress.
Had the 9/11 attackers been representatives of a national government, we would have been at war with them from the moment the planes hit the buildings. But they were, for all intents and purposes, "air pirates" without a country, and we went into Afghanistan as a way of punishing the modern-day form of piracy. The toppling of the Taliban seemed to be an extreme stretch of the "reprisals against piracy" clause. And in that case, we had no formal declaration of war against Afghanistan, either.
Zev also says: "The authorisation that Congress gave the President satisfies the War Powers Resolution - the power to declare war certainly includes the lesser power to authorise hostilities short of war." I really wonder about that. The people who wrote the constitution empowered Congress to deal with specific types of military situations: war, piracy, invasion, rebellion. As a body, they were well-known to distrust the warmaking power of any government, and worked hard to make it difficult for the US government to exercise that power, except in the most dire circumstances. It was clearly not the wish of ANY of the founders, whose writings I ever read, that the US ever find it easy to use military power to get its way around the world, or do anything except defend itself. Because the constitution sets out several specific authorizations of military power, most of which are smaller in scope than war, I think it is also reasonable to interpret this as meaning that the Congress is not empowered to authorize any and all conflicts up to and including war, but rather war or no war, in which the President is charged with ending the war as quickly and efficiently as possible. That is to say, there may be big wars and there may be small wars, but they must all be wars. If a desired (or necessary) conflict doesn't naturally fall under any of the classifications listed in the Constitution, then I don't think you can say that the document empowers Congress to authorize it, or that the writers of the constitution ever intended Congress to have that power. I have tried to think of situations where this interpretation would turn the constitution into a "suicide pact," tying Congress' hands in dire circumstances when military action was indeed necessary, but I can't. On the other hand, I can think of numerous occasions, when such a restriction would have prevented us from unfortunate overseas adventures.
Zev further says: "A congressional declaration of war was the last thing anyone wanted; the resolution that was passed gave the President the authority he needed to threaten war, and the ability to use that threat to negotiate peace, if there was one to be had."
He can threaten war all he wants, but when push came to shove, he needed to seek and get an actual declaration of war between the US and Iraq. The construction of extra-constitutional "alternative military authorizations" just muddies the water and leaves the barn door open for this and future Presidents and Congresses to use the military in all kinds of stupid ways. The abuses of the military power that we have seen in the past are MISTAKES and we need to find ways to prevent future mistakes, not enable more of them based on the past precedent of mistake!
It is interesting that Zev seems to agree that the October authorization was not a real declaration of War, claiming that the latter was "the last thing anything wanted." So what we seem to have is an apparently extra-constitutional power to threaten and prosecute the "equivalent" of war, without ever actually having to acknowledge in plain, formal language, that a war is being discused or waged, because that is the "last thing" that anyone wants. I could understand Bush wanting to do a little Texas-style poker-table bluffing before hostilities began, perhaps to prevent a real war. But I think he needed a declaration of war to actually do what he has done, and that he and the congressmen and senators who went along with him are in material breach of the constitution and their oaths of office. The federal government made it clear in the recent Rosenthal med-mj case that it doesn't accept someone's claim that an inferior government can shield its functionaries from federal prosecution by giving local "permission" to commit a federal crime. The Congress and the President are inferior to the constitution. By the reasoning of the Rosenthal case, the Congress cannot absolve the President of the responsibility for acting unconstitutionally EXCEPT THROUGH ACQUITTAL IN IMPEACHMENT proceedings, a constitutional process. Whether you believe the Congress and President were in the right or wrong about this war, letting it stand as a fait accompli without an impeachment would seem to weaken our constitutional system still further. Even members of the military who are in the right must often be subject to courts martial, to set the record straight, formally clear their names, and respect the system of military justice. In a just world, we would see impeachment in this case as being as necessary as those occasional courts martial. But in the real world, if the Iraq war was not conducted according to the Constitution, then Congress' own complicity would come out at the trial, and heaven knows we can't have that.
Finally, Zev says: "Now that we can defeat tyranny, we should do so at least now and again, though we are never *obligated* to do so if it doesn't suit us, or if the risk appears too great."
If tyranny attacks us, or puts itself in a state of war with us, let's kick its ass. I should think that such things will happen often enough to allow us to flex our muscles for the admiring global public. But let's not roam around the world looking for dragons to slay, even though, as a strong, mature country, we could probably slay a few. Looking for trouble is, indeed, a sign of IMmaturity, both in nations and people. The point of the US government was never to liberate the world. It was, rather, to secure the blessings of liberty to ourselves and our posterity. Zev advocates a dangerous mission creep, suggesting that Washington warned us against entangling alliances as a practical prescription for a fledgling nation, but that he would have advised a stronger country differently. I disagree. I think that Washington gave his advice out of strongly held principles. One of the most popular of his time can be paraphrased as "know your business, and mind it." He knew that people and nations, whether weak or powerful, started down a bad road when they abandoned that wisdom.
Xrlg says: "If you really believe that President Bush would not have been able to obtain what you call a "real" declaration of war, then you are kidding yourself in the extreme."
Maybe so, but when hundreds of thousands, millions of people take to the streets in protest across the country before the war starts, and when many congressmen are saying now that the case for war was NOT made, and certainly not on the floor of the House or Senate, it seems to me that the President might have had a harder time of getting a full declaration than you seem to think. In any case, given the choice of rushing into the war or prosecuting it anyway after the full and serious congressional debate that should have preceded a declaration of war vote, I would choose the latter, on the off chance that the full proceedings would have at least established the actual NECESSITY for the war, enabling many more citizens to support it with clear consciences, albeit heavy hearts, and helping to build the true, sweeping national consensus and dedication that our country has always needed to prosecute war effectively. Here is where attention paid to due process would have reaped important dividends, I expect, whether or not we went to war. By subverting the process, we may do good things, but seem more likely to do bad things (if only by establishing a less rigorous standard that others can use in the future to do bad things).
