The War & Law League survey of 2008 presidential candidates
Edwards: Bush’s operations in Iraq are now illegal;
Kucinich: Congress has power to direct and end war;
Paul: Force never constitutional without Congress’ OK
A former senator and two
representatives pursuing the White House offer unconventional slants on the
legality of war actions. Their comments come in response to the second quadrennial Presidential
Candidate Survey sponsored by the San Francisco-based War and Law League (WALL). Among
answers to questions:
Paul and Kucinich consider preemptive war illegal. Edwards calls the doctrine dangerous but would not tie a president’s hands. Both representatives say the wars in Yugoslavia and Iraq (2003–) have been illegal and condemn the conduct of the Afghan war. Edwards says the three wars were all entered lawfully. He would work closely with Congress on matters of military force but not leave decisions on its use to Congress. As to whether a president can lawfully use nuclear weapons, only Kucinich flatly answers no.
Senator Hillary Clinton (D-NY), Senator Barack Obama (D-IL), and four competitors appeared to be unable or unwilling to answer the questions. Paul was the only Republican responding. Four years ago, a similar WALL survey with nine questions drew responses from five candidates, including Senator John Kerry, Senator Edwards, and Rep. Kucinich. It may have been the first effort to systematically quiz U.S. presidential candidates on the constitutionality and legality—not just desirability or effectiveness—of executive actions abroad. The 2008-election survey adds a new question: What power does Congress have to end a war?
Professor Peter G. Keane, dean emeritus of Golden Gate University School of Law, signed
cover letters to all major candidates in September. Five other U.S. academics and the Fellowship
of Reconciliation endorsed the survey. (See the earlier article below.) The answers received to
date follow verbatim.
Answers by John R. Edwards
1. Do you believe that what has been called preventive war or preemptive war is lawful?
President Bush’s preventive war doctrine is clearly dangerous for the country and for the world. While I believe that it would not be responsible to tie the president’s hands in the case of a threat to the country or our allies, it is equally important we avoid dangerous foreign policy mistakes such as Iraq, which were based on the preventive war doctrine. Most importantly, however, we need a president who is actually committed to diplomacy, and who will build an international consensus on important issues like ending terrorism and nuclear proliferation. If we are unwilling to talk to other countries, or if we use military action as a first response rather than a last resort, ultimately our nation will be less safe as a result.
2. Do you believe that a president can lawfully use nuclear weapons?
While I do not think a presidential candidate should talk specifically about when he or she would or would not use nuclear weapons, I strongly believe the world will be a better place without nuclear weapons and without nuclear strikes. I also believe that it is the President’s obligation as Commander-in-Chief to do whatever is necessary to provide for the nation’s defense.
3. Do you believe that a president has the constitutional authority to terminate or withdraw from a treaty on his own?
I recognize the separation of powers in our constitutional system and I will work closely with the Congress to promote ratification of treaties that will forward our self-interest while ensuring progress in both bilateral and multilateral relationships on issues of justice, equality, and constitutionalism.
4. As president, would you initiate any foreign military action against a country if Congress has not specifically authorized war against that country?
Congress has a clear constitutional role in declaring war, and as president I will work closely with Congress on all matters relating to military force. As president, I will only use offensive force after all other options including diplomacy have been exhausted, and after we have made efforts to bring as many countries as possible to our side. I believe military force is justified to protect our vital national interests; to respond to acts of aggression by other nations and non-state actors; to protect treaty allies and alliance commitments; to prevent terrorists from acquiring nuclear weapons; and to prevent or stop genocide.
5. As president, would you leave it to Congress to decide whether or not a foreign military action was warranted?
No.
6. Do you believe that the war in Iraq that began in March 2003 has been lawful?
Yes.
The Bush administration’s shifting explanations and justifications for the war are deeply troubling. But even more troubling is the fact that President Bush consistently tries to paint a rosy picture of a dangerous, deadly situation on the ground, and is simply out of touch with reality in Iraq.
The 2002 authorization did not give President Bush the power to use U.S. troops to police a civil war. I believe that Congress should make it clear that President Bush exceeded his authority long ago – and should set a firm timeline for withdrawal. With no timeline, there should be no funding – no excuses.
7. Do you believe that the war in Afghanistan that began in October 2001 has been lawful?
Yes.
8. Do you believe that the U.S.-NATO war in Yugoslavia in 1999 was lawful?
Yes.
9. Under the Constitution, what power, if any, does Congress have to terminate a war or other foreign military action?
In making decisions about wars and foreign military actions, Congress has all the authority allotted to it by the Constitution and by statutes such as the War Power Act. Specifically, Congress has the funding power, which I have repeatedly called on Congress to use to force the president to withdraw troops from Iraq.
10. (A) What problems, if any, do you see in the way the Constitution’s war powers are being exercised? (B) How would you remedy them?
The 2002 authorization did not give President Bush the power to use U.S. troops to police a
civil war. I believe that Congress should make it clear that President Bush exceeded his authority
long ago. The president now needs to end the war and ask Congress for new authority to manage
the withdrawal of the U.S. military presence and to help Iraq achieve stability.
Answers by Rep. Dennis J. Kucinich
1. Do you believe that what has been called preventive war or preemptive war is lawful?
No. The Bush Administration’s policy of preventative war violates Chapter VII of the United Nations Charter, which allows the use of force under only two conditions: (1) in self-defense when a nation is under “armed attack” and (2) as specifically authorized by the U.N. Security Council as a last resort to maintain international peace and security. Certainly neither condition held in the case of Iraq, as has been widely acknowledged—not just by former U.N. Secretary General Kofi Annan but by Richard Perle, one of the war’s foremost supporters and former member of the Pentagon’s Defense Policy Board.
Furthermore, according to the U.S. Constitution "all Treaties made, or which shall be made, under the authority of the United States shall be the supreme Law of the Land.” Hence, because the U.S. is a signatory to the U.N. Charter, and because the Charter forbids preventative war, preventative war also violates the supreme law of the United States.
The doctrine of preventative war is an extremely dangerous one; it could be used by China to justify an invasion of Taiwan or by any number of other countries to justify plain aggression. The U.S. should be leading the international community in rejection of preventative war, not championing it. I will move us away from the arrogant “go it alone” foreign policy of the Bush Administration, and work with the rest of the world to strengthen institutions of international law.
2. Do you believe that a president can lawfully use nuclear weapons?
No. Article VI of the Constitution clearly obligates all U.S. government officials to abide by all treaties “made under the authority of the United States.” The United States is a contracting party to several treaties that effectively render the use of nuclear weapons criminal acts. In 1996, the World Court of the United Nations issued an Advisory Opinion condemning the use of nuclear weapons. The Court maintained that “states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” Further, the use of nuclear weapons would violate principles of international law that forbid military tactics that cause serious environmental harm. The United States has a moral, as well as legal, obligation to lead the way to a world free of nuclear weapons. This can be accomplished without negatively impacting the military preeminence of the United States. There is no conceivable international crisis for which nuclear weapons are a viable solution. I will work for total nuclear disarmament.
3. Do you believe that a president has the constitutional authority to terminate or withdraw from a treaty on his own?
No. Article VI of the Constitution clearly states that “all Treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the land,” and further that “all executive and judicial officers, both of the United States and several states, shall be bound by oath or affirmation, to support this Constitution.” Once a treaty is ratified by the Senate, it becomes United States law. Article II, Section 3 of the Constitution states that the President “shall take Care that the Laws be faithfully executed.” It is therefore clear that the President is bound to abide by the terms of any treaties ratified by the Senate. As it is the constitutionally designated role of the Senate to ratify treaties, I believe that the Senate must also have a critical role in deciding whether a particular agreement is no longer in the best interests of the American people.
However, that being said, it is true that when I and several other Congressmen filed suit against President Bush for withdrawing from the ABM treaty, the court did rule against us. However, the ruling was based on the narrow issue that too few Congress people had signed onto the suit and declared that they did not have legal standing to bring the suit. Thus, the court did not rule on the underlying basis of the suit. This legal dodge, of course, tacitly allows the President to terminate and withdraw from treaties. The only time that this authority can be challenged is if enough Congress people sign on to a challenge and are acknowledged to have standing. Of course, a clever President would erode the Constitutional authority of the Congress over time with a series of such actions before making more adventuresome changes such as withdrawing from the U.N. Care needs to be taken to ensure that the balance of power is not thrown off.
4. As president, would you initiate any war or foreign military action against a country if Congress has not specifically authorized war against that country?
No. Article I, Section 8 of the Constitution clearly states that “the Congress shall have power to declare War.” It was the intent of the Founders that war powers should be under the command of the people through their representatives, rather than in the hands of a single executive. As it is the sworn duty of the President to preserve and uphold the Constitution, there is no room for the President to take the United States military into war without the prior approval of Congress.
5. As president, would you leave it to Congress to decide whether or not a war or foreign military action against a country was warranted?
Yes. While I would offer leadership and recommendations and use the resources of the Department of Peace to avoid crises that can result in war, as clearly stated in Article I, Section 8 of the United States Constitution, the power to declare war belongs to Congress. The presidential oath of office is a solemn promise to defend and uphold the Constitution.
6. Do you believe that the war in Iraq that began in March 2003 has been lawful?
No. There was no declaration from the U.S. Congress. There was no U.N. Security Council authorization, nor was the U.S. under armed attack (see answer to question #1, above).
Moreover, according to Human Rights Watch, some of our conduct of the war—particularly certain uses of cluster bombs—has violated the Geneva Convention. And our privatization of Iraqi government-owned industries is illegal under the Hague Regulations of 1907 and the Fourth Geneva Convention.
There was no basis for a war in Iraq. It was wrong to go in, and it’s wrong to stay in. The United Nations provides appropriate mechanisms for dealing with situations like Iraq. The fact that no weapons of mass destruction have been found in Iraq underscores the effectiveness of the UNSCOM and UNMOVIC inspection regimes. Furthermore, Iraq was not connected to the tragedies of 9/11. We should not be sacrificing the lives of our brave men and women for the profits of Halliburton, Bechtel, and other corporate interests. This disastrous mission must be ended before any more lives are lost. It is urgent for the United States to go to the U.N. with a new resolution that contains the basis of an exit strategy.
7. Do you believe that the war in Afghanistan that began in October 2001 has been lawful?
No, it has not been conducted lawfully. We have bombed civilian targets, in violation of international law. We in Congress did not authorize the bombing of civilians in Afghanistan. Nor did we ask that the blood of innocent people, who perished on September 11 be avenged with the blood of innocent villagers in Afghanistan. We did not authorize the administration to wage war anytime, anywhere, anyhow it pleases. September 11 was a criminal act, not an act of war. War is something that occurs between states, and terrorists have no permanent home. Al Quaeda has terrorist cells in more than 70 nations. Terror attacks have increased dramatically throughout the world. It is clear that the Bush administration policy of “invade and occupy” is not only illegal, but also a total failure in reducing terrorist activity. To combat terrorism, the United States needs the cooperation of the world community. In capturing terrorists and disrupting terror cells, the cooperation of foreign authorities is of much greater value than large scale military interventions.
8. Do you believe that the US-NATO war in Yugoslavia in 1999 was lawful?
No. The U.S. and NATO, in the name of a humanitarian cause, decided to undertake the bombing of Serbia and thereby violate the U.N. Charter, the NATO Charter, the Congressional intent in approving the North Atlantic Treaty, the U.S. Constitution, and the War Powers Act. The U.N. Security Council was the proper forum for debating such offensive action.
NATO’s “humanitarian” bombing only served to compound violence in the region. The only thing that can keep NATO from being a global vigilante is international law. NATO clearly violated that law in Yugoslavia.
9. Under the Constitution, what power, if any, does Congress have to terminate a war or other foreign military action?
The intention of the Constitution was to balance powers, and the intention of Congress was to represent the people. In Article 1, Section 8, Congress has the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” This necessary and proper clause was to allow Congress to not only declare war, but to direct it, and eventually end it. James Madison stated, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.” The checks and balances desperately need to be restored in order to keep from further weakening America.
10. (A) What problems, if any, do you see in the way the Constitution’s war powers are being exercised? (B) How would you remedy them?
I am deeply disturbed by the recent concentration of war powers in the executive branch. The
Constitution states, in no uncertain terms, that the power to declare war belongs to Congress.
The Framers intended that the decision to go to war should not be made by a single individual,
but rather the collective judgment of the people’s representatives. However, the Bush
administration has chosen to not uphold these constitutional principles. This administration
wants the power to engage in acts of war without being held accountable by Congress or any
standard of international law. Unfortunately, Congress has been all too willing to grant broad
new powers to the executive, most notably in the forms of the Iraq resolution and the
“PATRIOT Act.” As President, I will work to restore our system of checks and balances. It is
critical to insulate the intelligence community from political influence so that our intelligence
community cannot be hijacked to serve narrow ideological interests.
Answers by Rep. Ron E. Paul
1. Do you believe that what has been called preventive war or preemptive war is lawful?
No.
2. Do you believe that a president can lawfully use nuclear weapons?
The point is less the type of weapon used and more the context in which force is used. The president has very limited Constitutional authority to use force. As president I would understand that the power to declare war lies with Congress. I would focus more on changing our foreign policy so as to make the use of any weapon less likely. That said, it would be hard to imagine a scenario where these weapons would be used and I would work to reduce the number of such weapons.
3. Do you believe that a president has the constitutional authority to terminate or withdraw from a treaty on his own?
The president has the authority and obligation to terminate or withdraw from any unconstitutional treaty, particularly any treaty that binds future generations to act in a manner at odds with the Constitution. Treaties which bind future generations to automatically go to war to defend a foreign country, for example, explicitly violate the US Constitution where a Congressional declaration of war is not required and as such should be terminated.
4. As president, would you initiate any foreign military action against a country if Congress has not specifically authorized war against that country?
The Constitution is clear on this. The president must turn to Congress for the authority to initiate force. Even in a time of active hostilities, where a quick response may be needed, the US Congress still holds authority to declare war. After the attack on Pearl Harbor, the president sought and received a war declaration against Japan.
5. As president, would you leave it to Congress to decide whether or not a foreign military action was warranted?
See above.
6. Do you believe that the war in Iraq that began in March 2003 has been lawful?
No.
7. Do you believe that the war in Afghanistan that began in October 2001 has been lawful?
Congress gave the president the specific authority to respond militarily to those who attacked the US on September 11, 2001. Unfortunately that authority was not exercised properly, leaving those non-state actors who attacked the US largely unpunished and the country of Afghanistan in ruins. I introduced legislation to issue Letters of Marque and Reprisal against those who attacked the United States as a way to address the fact that the perpetrators were not a nation but rather non-state actors.
8. Do you believe that the U.S.-NATO war in Yugoslavia in 1999 was lawful?
No.
9. Under the Constitution, what power, if any, does Congress have to terminate a war or other foreign military action?
The chief Congressional power in this area is the power of the purse—the ability to continue to fund any foreign or domestic action. There is in addition an oversight function, which is notmeant to serve as a substitute for the power of the purse.
10. (A) What problems, if any, do you see in the way the Constitution's war powers are being exercised? (B) How would you remedy them?
Presidential power has, due primarily to the refusal of the Congress to assert its constitutional authority, expanded dramatically over the last several decades to the point where Congress is no longer a de facto co-equal branch of government. Congress must begin to re-assert its authority to restore the balance of powers envisioned by our Founders.
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December 3, 2007