American Politics

[hym 358]

From the perspective of international law, that may be the case. From the perspective of US law, no it was not illegal. As far as the US is concerned, the US Constitution supersedes international law.

Only if the law is in conflict with the constitution. Otherwise, they have equal standing. The thing is that this has never gone to court.

Not quite. International treaty is among "the highest laws in the land" but it is not equal to the Constitution.

Furthermore, the SCOTUS invalidated any governmental individual or organizational from entering into an international agreement that alters the authority granted by the Constitution. In other words, the Senate cannot ratify a treaty that places restrictions on Congressional authority to declare war.

[krbe 193]

Not quite. International treaty is among "the highest laws in the land" but it is not equal to the Constitution.

Furthermore, the SCOTUS invalidated any governmental individual or organizational from entering into an international agreement that alters the authority granted by the Constitution. In other words, the Senate cannot ratify a treaty that places restrictions on Congressional authority to declare war.

 

 

If they are self-executing, a presumption depending on whichever way the wind is blowing when a treaty is taken to court.

 

This double approach is idiotic, of course, but has served to keep the US from observing its obligation under treaties believed to be self-executing (but later held not to). That being said, there is an ocean of difference between observing consular rights for singular criminals, and curtailing basic state rights. The right to go to war is one of these.

 

As the US is a member of the P5, it doesn't really matter. Same reason why any American calls for the Russians to observe "international law" on the small matter of Ukraine is so utterly meaningless it's a surprise Mr Kerry hasn't assigned that part of the job to an intern.

[A Nonny Moose 8,262]

Was there even a declaration of war with respect to Iraq?  I certainly don't remember one. 

 

For that matter, has anyone declared war since 1941 when the United States declared war on Japan and Germany declared war on the U.S.?  I think this kind of diplomatic nicety has gone by the board.

 

For one country to declare war on another, both countries have to be internationally recognized.  Otherwise, what you have is a "police action" like the so-called Korean War (better described as the Korean Conflict), which is still only in a truce.  Mostly, what we have now is civil wars and/or insurgencies. 

 

Note how carefully the Russians have not declared war on the Ukraine and vice versa.  Theoretically, once war is declared a whole raft of rules kick in.

 

Oh, and declaring war on ideas and conditions doesn't make a war.  It makes a stupid public relations goof.

[LexusInfernus 908]

Not quite. International treaty is among "the highest laws in the land" but it is not equal to the Constitution.

Furthermore, the SCOTUS invalidated any governmental individual or organizational from entering into an international agreement that alters the authority granted by the Constitution. In other words, the Senate cannot ratify a treaty that places restrictions on Congressional authority to declare war.

 

True, but it remains to be seen whether the UN charter really places any meaningful restrictions on congress's authority. So far these cases have never made it to the Supreme Court (the Iraq case was thrown out) and for the most part the US has always observed UN rules when waging a war. 

 

I doubt anyone will ever take this far enough to court though. The implications of the SCOTUS declaring the US's signature of the UN charter as unconstitutional would be so wide and far reaching that I don't think anyone really wants to risk it. 

[hym 358]

Any treaty that removes the authority of Congress to declare war would meaningfully restrict Congressional authority.

[A Nonny Moose 8,262]

Any treaty that removes the authority of Congress to declare war would meaningfully restrict Congressional authority.

In general, and considering the makeup of that body, not a bad idea. 

 

Should the SCOTUS have the temerity to invalidate the United States signature on the U.N. Charter, what you get is the League of Nations, all over again.  A powerless body with no teeth, as the security council would be effectively disbanded.

 

Congressional and other U.S. authorities stop at the U.S. borders (including the sea boundaries).  If anyone thinks differently, they are living in some kind of dream world.

 

People are designated under the U.S. constitution to draft and conclude international treaties and agreements the same as any other sovereign state by long standing diplomatic custom.  Hindsight cannot change this except for the worse, so what on earth are we arguing about here?  Are we saying that the U.S. word is no good?  That they can be retroactive nay-sayers?  This is nonsense.

[LexusInfernus 908]

Any treaty that removes the authority of Congress to declare war would meaningfully restrict Congressional authority.

No but there are two ways a court can interpret what restriction means. Does it mean that the treaty literally removes that power from congress and places it with the president or some other body. or does the treaty restrict when and under what conditions congress can declare war. The UN charter only says that countries cannot declare war unless the UNSC creates a resolution that authorizes force or in a case of (collective) self defense. It does not force countries however, to declare war when such a resolution is created, nor does it touch upon the authority of congress to declare war.

 

If however, the courts say that a treaty defining the circumstances of when a war or armed force is allowed is also deemed a restriction on congressional authority, the US has a serious problem, because it instantly rules all treaty based alliances void. US membership of NATO would be deemed unconstitutional thanks to NATO article 5. I think courts know this, and I think there is a good chance that they reason that the spirit of the constitution is not that the US cannot enter any treaty based alliances because of this narrow interpretation of the constitution.

 

Alas, we will not know how the court reasons unless this ever actually gets to the Supreme Court. And until then, the US is part of the UN and the UN charter applies to it as if it were the supreme law of the land. Hence, the US broke the law when it invaded Iraq without an UNSC mandate.  

[krbe 193]

No but there are two ways a court can interpret what restriction means. Does it mean that the treaty literally removes that power from congress and places it with the president or some other body. or does the treaty restrict when and under what conditions congress can declare war. The UN charter only says that countries cannot declare war unless the UNSC creates a resolution that authorizes force or in a case of (collective) self defense.

Declearing war is in the United States a power reserved for Congress, through art. 1( (11). Hence, an international treaty removing the power of Congress to declear war would be invalid. A treaty limiting the same power of Congress would, in order to be valid, have to be (i) self-executing, or (ii) supported by implementing legislation.

Self-executing treaties are deemed such if there is supporting evidence that the government of the United States meant it to be self-executing, and if the treaty is framed as such, and if the treaty interferes with Congress' law-making powers.

A treaty - say the charter of the United Nations - is unlikely to have been meant as self-executing by the President or Congress; and it interferes with the exclusive law-making powers vested in Congress. Even if the declearation itself were to be understood as not part of this power (merely being a statement that a state of war is in effect), the legislations supporting a war - emergency measures, seizure and detaining of hostile aliens, sanctions, trading with the enemy measures - would be well within the law-making powers of Congress.

It follows that if Congress so desire that one of its defining powers should be curtailed, it must be curtailed by the same body.

It does not force countries however, to declare war when such a resolution is created, nor does it touch upon the authority of congress to declare war.

For the reasons outlined above, you are entirely correct. For the arguments you are putting forth, you are entirely incorrect. See UNC ch. VII again.

If however, the courts say that a treaty defining the circumstances of when a war or armed force is allowed is also deemed a restriction on congressional authority, the US has a serious problem, because it instantly rules all treaty based alliances void. US membership of NATO would be deemed unconstitutional thanks to NATO article 5.

In itself, quite naturally. Hardly a surprise, is it? It won't be to any of the NATO members either. All treaties hinges on the good will of the parties to it. Despite our differences, the rest of NATO must have faith in America fulfilling its obligation - and America in the rest of NATO fulfilling theirs.

Treaties are solely concerned with states as international actors. They do not consider everything hidden underneath the "national" layer. Whatever national parliaments and courts decide does not alter a state's international obligations; and, unless a treaty is self-executing, courts are not to be concerned with whatever happens at the international layer (unless implementing legislation has been put in place).

I think courts know this, and I think there is a good chance that they reason that the spirit of the constitution is not that the US cannot enter any treaty based alliances because of this narrow interpretation of the constitution.

What courts know, is that the United States is a sovereign country, run according to the American constitution. If that constiution reserves the power to decleare war to Congress, it is unlikely that that Congress would mean that this power should be regulated internationally, and that unless they legislate their powers away, they will not rule on that. Furthermore, they know that this is a political issue, not a legal one (as there is no legislation to consider), and would likely be very careful in trying to make any. Their job is to interpret legislation at hand, not create one where it doesn't exist.

And until then, the US is part of the UN and the UN charter applies to it as if it were the supreme law of the land. Hence, the US broke the law when it invaded Iraq without an UNSC mandate.

No, the UNC is not the Supreme Law of the Land. It is not self-executing. Simple as that. Hence, the US did not violate domestic law when authorising the use of armed force against the sovereign nation of Iraq.

And just so it is completely clear: In the United States, any subsequent act contrary to a (self-executing) treaty or implementing legislation supersedes this treaty as per the lex posterior principle. What do you think an enabling act contrary to a treaty placing restrictions on congressial powers would be seen as?[/sd]

[hym 358]

 

Any treaty that removes the authority of Congress to declare war would meaningfully restrict Congressional authority.

No but there are two ways a court can interpret what restriction means. Does it mean that the treaty literally removes that power from congress and places it with the president or some other body. or does the treaty restrict when and under what conditions congress can declare war. The UN charter only says that countries cannot declare war unless the UNSC creates a resolution that authorizes force or in a case of (collective) self defense. It does not force countries however, to declare war when such a resolution is created, nor does it touch upon the authority of congress to declare war.

 

If however, the courts say that a treaty defining the circumstances of when a war or armed force is allowed is also deemed a restriction on congressional authority, the US has a serious problem, because it instantly rules all treaty based alliances void. US membership of NATO would be deemed unconstitutional thanks to NATO article 5. I think courts know this, and I think there is a good chance that they reason that the spirit of the constitution is not that the US cannot enter any treaty based alliances because of this narrow interpretation of the constitution.

 

Alas, we will not know how the court reasons unless this ever actually gets to the Supreme Court. And until then, the US is part of the UN and the UN charter applies to it as if it were the supreme law of the land. Hence, the US broke the law when it invaded Iraq without an UNSC mandate.  

 

 

Let's look at this from a different viewpoint.  As I said earlier, "supreme law of the land" does not means "equal with Constitution."  Federal law is also the "supreme law of the land" but it is very clearly not on the same level as the Constitution.  The Constitution can invalidate federal law, but the reverse is not true.  The SCOTUS has effectively declared that there are tiers of authority inside "supreme law of the land" and the Constitution alone sits in the highest tier.  (The Supreme Court has invalidated prior treaties and US international agreements for violating the Constitution.)  As far as US law is concerned, any treaty that the US signs exists somewhere beneath the Constitution.

 

The Constitution gives Congress the authority to declare war.  Practically speaking, this means that Congress, and only Congress, has the authority to decide if the US undertakes war with another nation, and over the years, the Congress has engaged in various activities to further strengthen the position that Congress, and Congress alone, has the legal power to authorize war.  Congress has the authority to self-impose restrictions on how it will exercise its authority, but it does not have the right to surrender that authority.

 

Let's recap:  The highest law of the United States recognizes only one court as America's high court, and that court does not recognize the authority of any treaty to supersede the Constitution.  The Constitution gives Congress exclusive authority to authorize war, and the Supreme Court has ruled that Congress does not have the ability to give away its authority.  In other words, Congress cannot give someone else the authority to tell Congress that it can't declare war.

 

Congress has the authority to authorize war regardless of whether it has the consent of the UN Security Council.  The Constitution gives it this right, and the only court opinion that matters does not recognize the authority of the international community to declare such action illegal.

[Duke87 1,070]

 

Nope. The war in Iraq was authorized by congress and thus was not in violation of the US constitution or any US laws. It wasn't authorized by the UN, but that is irrelevant because UN resolutions have no legal force according to US law and therefore violating one is not a crime.

 

So, again, completely political.

Nope, it was illegal. You need the Security Council's approval before you can start a war, clear and simple. And thats in the charter, which the US has signed.

 

What the UN charter says is irrelevant as to whether Bush should have been impeached. Congress can only enforce laws of the US against the president by impeachment, they have no authority to enforce "international law". Since no laws of the US were violated there were no grounds for impeachment.

 

Meanwhile, if the UN wants to drag George Bush into the ICC in Den Haag to put him on trial for war crimes, they would have that authority... in theory. In reality, of course, the UN is a coalition of nations, not a supreme authority over them. So they can only enforce something against a member state if enough other member states put their support behind it. They won't dare try and take any action against the US since the US is too powerful and too influential to go after like that. This means the US government is free to do as they wish with impunity and they know it.

 

I don't particularly agree (in retrospect) with the decision to invade Iraq either, but the idea that doing so was somehow "illegal" is absurd and is just silly rhetoric. There are far more logical and arguments to make against invading Iraq than slinging mud around saying it was illegal and the president was a war criminal. Come on now.

 

 

Was there even a declaration of war with respect to Iraq?  I certainly don't remember one.

 

No, but there was an authorization to use military force.

 

A "declaration of war" was not made since what transpired was not technically a war. For it to have been a war it would have to have been fought against an opposing army. The vast majority of it was fought against insurgents and non-government militias. Which may seem like semantics but in the legal world you can only declare war on a country, not on factions within a country that have no sovereignty.

 

You are not likely to see any more declarations of war coming from anyone anytime soon since the modern would has gotten more complex than that. We are not fighting nations, we are fighting ideas which are without borders.

[LexusInfernus 908]

Meanwhile, if the UN wants to drag George Bush into the ICC in Den Haag to put him on trial for war crimes, they would have that authority... in theory. In reality, of course, the UN is a coalition of nations, not a supreme authority over them. So they can only enforce something against a member state if enough other member states put their support behind it. They won't dare try and take any action against the US since the US is too powerful and too influential to go after like that. This means the US government is free to do as they wish with impunity and they know it.

 

I don't particularly agree (in retrospect) with the decision to invade Iraq either, but the idea that doing so was somehow "illegal" is absurd and is just silly rhetoric. There are far more logical and arguments to make against invading Iraq than slinging mud around saying it was illegal and the president was a war criminal. Come on now.

Sadly they don't. The US recognizes the authority of the ICC over any US nationals. And even then, any treaties with any international court that the US signs are not self executing, so as long as congress didn't make a law implementing the courts authority the ICC can only bark but not bite. 

 

The thing is, if you don't accept what the US did as illegal under international law (even if its legal under US law) you have no authority left to accuse other countries when they do something illegal you don't like. We saw it when Russia annexed Crimea. They pretty much told the West to shut up due to Iraq. And technically, they were completely right. If America's invasion of Iraq was legal under international law, as you claim, then so was Russia's invasion of Ukrainian territory. 

[krbe 193]

[in reality, of course, the UN is a coalition of nations, not a supreme authority over them. So they can only enforce something against a member state if enough other member states put their support behind it. They won't dare try and take any action against the US since the US is too powerful and too influential to go after like that. This means the US government is free to do as they wish with impunity and they know it.

As long as the US stays more powerful than Sudan, Bush is in the clear. And even in the Sudan case, Mr Bashir has been free to do most of his work throughout Africa and the Muslim world.

French, British, Russian, Chinese and Russian nationals will not under any circumstances be surrendered to the ICC unless their executives so wish. However, the court is unlikely to after state parties, as it obviously depends on their good will for its existence. While many see the ICC as "important" as it is a permanent tribunal for the prosecution of war crimes, it is a bit useless. It is too closely connected with past and current state parties, and too far removed from the conflicts.

No, but there was an authorization to use military force.

 

A "declaration of war" was not made since what transpired was not technically a war. For it to have been a war it would have to have been fought against an opposing army. The vast majority of it was fought against insurgents and non-government militias. Which may seem like semantics but in the legal world you can only declare war on a country, not on factions within a country that have no sovereignty.

 

You are not likely to see any more declarations of war coming from anyone anytime soon since the modern would has gotten more complex than that. We are not fighting nations, we are fighting ideas which are without borders.

DO you Americans really have a definition of war? Because international law doesn't. There are armed conflicts of different sorts, and the original armed conflict ("war") is the one between nations. Which the Iraq War most assuredly was. Unless you somehow choose to define Iraq away as a nationstate and it's army as an army.

And no, you can't fight ideas, and you can't wage war - armed conflict - against them. You can fight a man with a gun and his country or group, and you can kill him take over the territory he held, but you can't conquer an idea and occupy an ideology.

[A Nonny Moose 8,262]

"I have, Sir, the honour to advise that a state of war exists between the United Kingdom and the Empire of Japan"

-- The UK declaration as quoted by Winston Churchill (I think I have it right).

 

When Churchill was criticized in the House about the excessive politesse of the language, he remarked "When you have to kill a man, it does no harm to smile".

 

Politesse and finesse have gone by the board these days, eh?

[LexusInfernus 908]

A "declaration of war" was not made since what transpired was not technically a war. For it to have been a war it would have to have been fought against an opposing army. The vast majority of it was fought against insurgents and non-government militias. Which may seem like semantics but in the legal world you can only declare war on a country, not on factions within a country that have no sovereignty.

Well no, that argument is invalid. Yeah, for the most part you fought against insurgents, but that was AFTER you attacked the state of Iraq and waged war against the Iraqi army in your goal of overthrowing Saddam's regime. That bit was a war. 

[Duke87 1,070]

The thing is, if you don't accept what the US did as illegal under international law (even if its legal under US law) you have no authority left to accuse other countries when they do something illegal you don't like. We saw it when Russia annexed Crimea. They pretty much told the West to shut up due to Iraq. And technically, they were completely right. If America's invasion of Iraq was legal under international law, as you claim, then so was Russia's invasion of Ukrainian territory. 

 

This logic assumes everyone is subject to the same rules and that the US is going to play fair. It should be apparent by now that American foreign policy relies on being a bully and this sort of "do as I say, not as I do" contradiction is to be expected. The US is interested only in protecting its own interests and cares not whether anyone else ends up with a raw deal on account of that.

 

You do have to figure, though, that that attitude is only eventually going to come back to bite us in the ass hard. Once the US slips out of superpower status, there will be a lot of disgruntled people lining up to spit on the corpse. We don't have very many actual friends, most of our allies are simply afraid to stand up to us.

 

Indeed, this is a way in which invading Iraq served a strategic purpose - to send the message that if you mess with us, this is what happens. They called it a "shock and awe campaign" for a reason!

 

Well no, that argument is invalid. Yeah, for the most part you fought against insurgents, but that was AFTER you attacked the state of Iraq and waged war against the Iraqi army in your goal of overthrowing Saddam's regime. That bit was a war. 

 

Perhaps, but the resolution passed by the US congress authorized it either way.

[LexusInfernus 908]

This logic assumes everyone is subject to the same rules and that the US is going to play fair. It should be apparent by now that American foreign policy relies on being a bully and this sort of "do as I say, not as I do" contradiction is to be expected. The US is interested only in protecting its own interests and cares not whether anyone else ends up with a raw deal on account of that.

 

You do have to figure, though, that that attitude is only eventually going to come back to bite us in the ass hard. Once the US slips out of superpower status, there will be a lot of disgruntled people lining up to spit on the corpse. We don't have very many actual friends, most of our allies are simply afraid to stand up to us.

Well that is the thing with laws isn't it? They apply to everyone in the same way. And while it is correct that the US looks out for its own interests, if you just ignore the rules and laws that for the most part you were responsible for setting up in the first place, you risk hurting your interests more. For the most part the US had a reputation of upholding the rule of law and having some degree of moral authority. That reputation was a handy tool to get things done, and now that tool doesn't work anymore because you guys have ruined your own reputation by breaking your own rules and going into Iraq. And now we can see the results. Russia could tell the US to simmer down and stay out of Syria. Effing Russia had more moral authority than the United States. And when Russia invaded Crimea, it could still make the US look like giant hypocrites and in the process retain some of its own moral authority. 

 

Now the US has the biggest difficulty getting anything done abroad when it involves countries that aren't close friends to the US. So, by adopting an inconsistent attitude towards international law, you have hurt your interests more than you have protected them. 

 

 

Indeed, this is a way in which invading Iraq served a strategic purpose - to send the message that if you mess with us, this is what happens. They called it a "shock and awe campaign" for a reason!

 

Well, they called it Shock and Awe because that makes a good soundbite. Also because it supposedly referred to the way the military conducted the operation. Massive display of overwhelming force that was supposed to pacify the population by convincing them it was pointless to fight the American army. But, in reality, it only made you guys look like total idiots. The overwhelming display of force was mostly an overwhelming display of arrogance and at the same time an overwhelming display of idiocy. By neatly giving the Iraqis a countdown timer to when the bombs would start dropping, they managed to evacuate most important personal and files to safe locations, so when the bombs hit the Iraqi government buildings, all they did was destroy empty offices. Not exactly something to be in awe off. 

 

The real shock and awe tactic refers more to a brutal total war approach to warfare. Bomb everything indiscriminately if it resists. Flatten entire cities with large scale bombardments and artillery strikes. Decapitate the enemy leadership in one fell swoop. Of course, that would require you to not announce to the enemy when you are going to attack. But yeah, such tactics are generally counted as war crimes. 

[A Nonny Moose 8,262]

I hope we have finished splitting hairs over spilt milk here now.  The policies of the last king of the United States seem to have no relevance with the current (outgoing) king.  The real interest now, for the next year, will be the choosing of the new king or queen.

[Larks2242 251]

Looks like Senator Walsh the midseason replacement for longtime Senator Baucus who stepped down is also done Not a game changer since he had little chance against Danies to begin with but still news.

[A Nonny Moose 8,262]

I don't think there'll be much change.  Too much general apathy among the electorate.

 

What do people think about the Commander-in-Chief's order to strike at ISIS in Iraq?

[LexusInfernus 908]

What do people think about the Commander-in-Chief's order to strike at ISIS in Iraq?

As I saw someone post on another forum but which describes quite rightly what I feel and what I want. 

 

[A Nonny Moose 8,262]

For what they are about to receive may Allah make them truly grateful.

[A Nonny Moose 8,262]

Question:  Does the U.S. have the stomach for this?

 

Seems Mr. Hagel and his boys are ready to go, but will the American people (Obama) let them?  Will the military/industrial complex force the issue?

[Duke87 1,070]

What you are seeing here is political tapdancing. It is mighty embarrassing, after all, for the man who campaigned about how we needed to get out of Iraq to be... getting us back into Iraq. Obama is committed to fighting ISIS, but he has to sell it to the anti-war crowd who will have a field day labeling him as a flip-flopping hypocrite if he's not careful. Hence, we have the henchmen loudly playing up how ISIS is a huge threat to everyone. And hence we are seeing what's being done portrayed as a series of individual acts rather than a continuous military campaign.

 

Make no mistake, there is another war in Iraq now and the US is involved. But the Obama administration is marketing it as something else in order to hush the critics.

 

 

This is a very different game from the previous invasion in 2003 occurring for very different reasons, of course (ISIS, unlike Saddam, has explicitly expressed desire to attack the US), so you can support this while not supporting that and be logically consistent. But it looks bad from a kneejerk emotional perspective, which is what politics are actually based on.

[A Nonny Moose 8,262]

It is time to stop dancing and get going.  THE BARBARIANS ARE AT THE GATE!

[A Nonny Moose 8,262]

Look before you shoot someone.

 

Since he was armed, why not turn on the porch light and investigate a little?  17 years for a knee jerk shooting!  The right to bear arms doesn't include the right to just shoot at people.

[AcmeSigns 97]

Look before you shoot someone.

 

Since he was armed, why not turn on the porch light and investigate a little?  17 years for a knee jerk shooting!  The right to bear arms doesn't include the right to just shoot at people.

You're quite right. This was an act of irresponsible gun ownership. He acted foolishly and was punished accordingly.

I always not only know what my target is, but also what's beyond it.

[A Nonny Moose 8,262]

Niel MacDonald's view from Washington as a Canadian

 

CBC's Washington correspondent's Op. Ed. piece on Obama and the Mid-term elections.  --  Stop trying to heal the world when you are bleeding from some pretty serious wounds yourselves.

[A Nonny Moose 8,262]

A strategic retreat to previously prepared positions?

 

"There go my people and I must follow them for I am their leader." -- Mahatma Gandhi

 

The peace president goes to war.

[47ply 1,100]

who's going to war? All we doing is bombing some Toyota pickups with guns on them that's not a war

[A Nonny Moose 8,262]

Don't kid yourself.  War doesn't have to include boots on the ground, at least not American boots, except for the volunteers who sneak out and join other armies.  Looks like Obama is going to lead the cheering squad.

 

When this is over, the Kurds will get their way.