New Laws Are Needed to Prevent Illegal Wars of Aggression
April 17, 2018
David Swanson / David Swanson.org & World Beyond War & The American Civil Liberties Union
The ACLU has called Trump's attack on Syria "illegal." A violation of constitutional law barring hostile use of force without congressional authorization "and international law forbidding unilateral use of force except in self-defense." In Britain and the US, people are calling for restraints on the willful resort to military violence. How about reviving the Ludlow Amendment? This proposal -- requiring a vote by the public before any branch of government could launch a war -- was blocked by President Franklin Roosevelt.
Corbyn v Corker: UK Wants Representation, US Royalty
David Swanson / David Swanson.org & World Beyond War
(April 16, 2018) -- Five years ago, the British Parliament said no to an attack on Syria that its prime minister wanted to join the US president in launching. That action, combined with public pressure, was instrumental in getting the US Congress to make clear that it would say no as well, were it absolutely forced to -- you know -- admit it existed and do anything at all. And that was key to preventing the attack.
So, when Britain's prime minister this week joined the US president in launching a war despite various members of Parliament and Congress warning against it, one might have thought that Prime Minister May was landing herself in deeper legal trouble than President Trump. Not at all.
The ban on war found in the United Nations Charter and the Kellogg-Briand Pact applies exactly equally to all nations except the five biggest weapons dealers and war makers on earth, and effectively not at all to any of those five because thay have veto power over anything the UN or its dependencies -- including courts -- attempt to do.
But Britain's violation of international law in abetting the 2003 attack on Iraq has been central to proposals supported by Opposition Leader Jeremy Corbyn to prosecute former Prime Minister Tony Blair. And the existence of such laws has been widely admitted and discussed in the UK over the years.
When the existence of such laws made it into half a sentence from the ACLU this week, in contrast, it was something of a rarity. No Congress Members to my knowledge have mentioned the UN Charter or the Kellogg-Briand Pact or the fact that war is illegal no matter who launches it.
In the United States, the conversation is dominated by the fact that the US Constitution gives Congress, and not the president, the power to make war. But I've never found any US resident who's told me that if the US were bombed by a foreign nation, he or she would give a rat's campaign contribution whether the attack was ordered by an executive or a legislature.
And the notion that the laws that ban war are overridden by the fact that the ancient (if sacred) Constitution mentions war is rendered ridiculous by the fact that the same sentence that gives Congress war power also gives it the power to hire pirates -- which Congress has admitted for well over a century has been banned, even as hiring proxies in Syria and elsewhere is treated as completely acceptable.
This state of discourse in the United States convinces the public that only Congress has the legal authority to stop a war. And Congress, of course, makes that claim while refusing to ever act on it, to ever cut off funding or begin impeachment or simply forbid a war.
In fact, Senator Corker is proposing to formally put the whole charade out of its misery by declaring that presidents can do what they have done anyway since 1941, namely whatever the hell they want -- and the Constitution be damned.
A limited side-discourse is concerned that the president probably has a memo from the Office of Legal Counsel pretending to explain why each new war or escalation is legal, and he's keeping it secret. My concern with this is that any concern with it seems to suggest that it matters. No memo can legalize a crime, and we should stop playing into the pretense that it might.
Meanwhile, over in London, a legitimate peace advocate in Corbyn, in the very land that invented impeachment, is not moving to impeach the prime minister any more than are members of Congress who days ago said that bombing Syria would be impeachable. Instead he's proposing to create a war powers act, a law requiring a vote of Parliament prior to any war.
If that'll stop a war, I'm for it. That the US Constitution hasn't worked, and that the US War Powers Act of 1973 hasn't worked, doesn't mean a British War Powers Act can't. If it even works 1% of the time that's all to the good. But should we give no consideration to the long-term impact of normalizing crimes by worrying over who gets to authorize them?
Should we not, as long as we're proposing such things, give equal consideration to a Ludlow Amendment (the proposal stopped by President Franklin Roosevelt that would have required a vote by the public before any branch of government launched a war)?
Regardless of all my concerns, I'll take Corbyn's more democratic proposal over Corker's royalist one any day.
Can law become a tool to restrain formalized governmental mass murder? It hardly seems that lawlessness is the answer. But how relevant is the entire field? How does it look from the point of view of those on the receiving end of the wars and of the treaties? This topic will be explored at a global conference in Toronto this September that I encourage people to attend.
David Swanson is an author, activist, journalist, and radio host. He is director of WorldBeyondWar.org and campaign coordinator for RootsAction.org. Swanson's books include War Is A Lie. He blogs at DavidSwanson.org and WarIsACrime.org. He hosts Talk Nation Radio. He is a 2015, 2016, 2017 Nobel Peace Prize Nominee. Follow him on Twitter: @davidcnswanson and FaceBook.
ACLU: Trump's Airstrikes on Syria Are
Illegal Without Congressional Authorization
NEW YORK (April 13, 2018) -- President Trump announced tonight that he had launched missile strikes against Syria.
Hina Shamsi, director of the American Civil Liberties Union's National Security Project, had this reaction:
"This military action is illegal. In the face of constitutional law barring hostile use of force without congressional authorization, and international law forbidding unilateral use of force except in self-defense, President Trump has unilaterally launched strikes against a country that has not attacked us -- and without any authorization from Congress. Doing so violates some of the most important legal constraints on the use of force."
More on the need for congressional permission follows:
US Strikes in Syria Are an Illegal Response to Atrocity
Hina Shamsi /Director, ACLU National Security Project
(April 7, 2017) -- No one disputes that Bashar al-Assad's use of chemical weapons on Syrian civilians is illegal, immoral, and unacceptable. But Assad's illegality does not excuse illegality in response.
In the face of constitutional law barring hostile use of force without congressional authorization, and international law forbidding unilateral use of force except in self-defense, President Trump has unilaterally launched strikes against a country that has not attacked us, and without any authorization from Congress. Doing so violates some of the most important legal constraints on the use of force.
In order to ensure that war powers are exercised with wisdom, restraint, and popular approval, our Constitution assigns to Congress its most important and fundamental responsibility: to "declare War" by specifying enemies, defining clear objectives, and setting limits that keep the executive's power as commander in chief within bounds.
This fundamental principle of separation of powers lies at the core of the Constitution and is the foundation of our democratic form of government. That is why, although the ACLU does not take positions on whether military force should be used, we have been steadfast in insisting, from the Vietnam War through the wars in Iraq and strikes in Libya and Syria by the Obama administration, that the decision to use military force requires Congress' specific, advance authorization.
Yet last night, after the US government used military force against the Syrian government for the first time since the civil war broke out in 2011, the Trump administration claimed, "No authorization from Congress is necessary."
It pointed to "several factors, including promoting regional stability, discouraging the use of chemical weapons, and protecting a civilian population from humanitarian atrocities."
Those arguments do not provide justification for the president to do an end run around the Constitution. As an initial matter, the hypocrisy of this rationale is galling. President Trump is invoking the Syrian government's killing of helpless men, women, and children -- beautiful babies, as he says -- when his own Muslim travel ban would exclude those very people from the refuge of the United States.
According to reports, the Trump administration claims that its justification for strikes in Syria is similar to that used by the Obama administration in justifying strikes in Libya in 2011. But invoking the Obama administration's wrongful precedent -- which we and many others criticized as illegal at the time -- does not justify still more lawlessness.
Absent a sudden attack on the United States that requires a president to take immediate action to repel the attack, no president has the power under the Constitution to decide unilaterally to take the United States into war. Unilateral military action was unlawful when President Obama did it, and it's unlawful now.
Demand a Special Prosecutor on Russia
The Trump administration's strikes also contravene the UN Charter, which is a binding treaty obligation for the United States, and helps preserve international peace and security. Article 2(4) of the UN Charter prohibits the use of force in the territory of another state unless authorized by the Security Council or in self-defense in response to a sudden attack. Neither condition was met before yesterday's strike.
These requirements exist for critically important reasons, as history shows. Our nation has a very long and painful history of civil liberties and human rights being jeopardized and violated during war.
Under the Bush administration, claims of broad war authority were cited as legal justification for wrongs ranging from torture to indefinite detention without charge or trial to dragnet surveillance. More recently, the Obama administration's claims of war authority were also used to justify keeping Guantanamo open and killing thousands of people in drone strikes in countries in which and with which the United States is not at war.
President Trump has already claimed some of these powers to launch an unprecedented number of strikes in other countries already devastated by war -- Yemen and Somalia -- resulting in a sharp increase in civilian deaths and suffering.
For all these reasons, we call on Congress to act swiftly and do its job by taking up the monumental question of whether President Trump may continue to use military force in Syria. To do otherwise would be an abdication by Congress of the war powers reserved for it under Article I of the Constitution.
And because these monumental decisions must be informed by meaningful public debate, we are also filing a Freedom of Information Act request with the Trump administration seeking its full domestic and international law justification for the strikes in Syria.
President Trump has unilaterally undertaken an act of war. If we are to be a country of laws, we must demand his legal justifications and our representatives in Congress need to ensure that his actions are properly debated and constrained.
Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.