on war and law
Another Presidential Candidate Survey is underway
A WALL commentary
Democrats have been asked if they pray and what schools their kids attended. Republicans have been asked their thoughts on evolutionism vs. creationism.
Amid all the softball pitches at the so-called presidential debates comes an occasional zinger on Iraq. And Fox and CNN have asked GOP candidates if they might attack Iran — with nuclear weapons if “necessary” (Blitzer, CNN, 6-5-07). The implication is either that it is lawful for a president to start a war, attack a country, and drop an atomic bomb — or that it is unlawful but a president may ignore laws.
Better questions: Do those war actions conform to the Constitution, to our obligations under international law? A nonpartisan, San Francisco-based educational group is asking the major competitors in the 2008 election such basic questions of war and law. The group is, not surprisingly, the War and Law League (WALL), founded in 1998, whose goal is the rule of law in U.S. foreign affairs. Its questionnaire includes these queries:
Four years ago, WALL asked ten candidates those questions. President Bush did not answer, but five did, a majority of Democratic hopefuls, including the party’s ultimate team, Senators Kerry and Edwards.
Has a president the constitutional authority to terminate or withdraw from a treaty on his own? The team-to-be split on that: Kerry “yes” (the only respondent holding that view), Edwards “no.” Otherwise they harmonized in opinion, asserting executive power and upholding the legality of the three U.S. wars since 1999 — none declared by Congress. Edwards did suggest, however, that war as a first resort of foreign policy might breach international law. *
The Presidential Candidate Survey represents a rare effort to systematically question candidates on the legality — not just desirability — of executive war actions since 1950. President Truman then ordered a war in Korea that was unauthorized and unchallenged by Congress.
Korea began a series of presidentially initiated conflicts involving Indochina, Latin America, Iraq, Yugoslavia, Afghanistan, and again Iraq. They have taken millions of lives, including 117,000 GIs. After World War II, a war Congress declared, America vowed “lasting peace.” Peace lasted five years. Now a state of lasting war seems to exist.
Yet the Constitution was calculated so that no single man or body could “hurry us into war” (framer James Wilson, 1787). Hence “the power to declare [initiate] war” was “fully and exclusively vested in the legislature”(Madison, 1793). The reason: the framers knew from royal history that “the executive is the branch of power most interested in war and most prone to it” (Madison, 1798). **
As our Afghan war nears its sixth anniversary and Iraq II marks 4½ years, we add one question: Under the Constitution, what power, if any, does Congress have to terminate a foreign military action? Otherwise, the questions remain the same.
The survey is endorsed by the 92-year-old Fellowship of Reconciliation, Nyack, NY, and these professors: Peter G. Keane, dean emeritus, Golden Gate University law school, San Francisco; George Bisharat, Hastings College of the Law, San Francisco; Marshall Windmiller, international relations, emeritus, San Francisco State University; Saul H. Mendlovitz, peace and world order studies, emeritus, Rutgers University School of Law, Newark, NJ; Walter C. Clemens, Jr., political science, Boston University; and Burns H. Weston, law, emeritus, University of Iowa.
The 2004 survey stemmed from a question for the candidates in 2000: Would you initiate war or let Congress decide? Three letters arrived: Patrick Buchanan wrote, “For a war to be constitutional, Congress must declare it.” George W. Bush’s campaign sent literature. And Bill Bradley had no statement, a spokesman wrote, though “health care and Urology are certainly important....” WALL replied that its question concerned not “health care and Urology” but war and peace.
* For full results, see “War & law quiz for presidential candidates” on this site.
** Among various pertinent items on this site are “The Founding Fathers on the Constitution’s War Power,” “Modern Commentators on the Constitution’s War Power,” and “Court Rulings Affirming the War Power of Congress.”
Sept. 22, 2007