by Paul W. Lovinger
In war-peace matters, presidential rule has virtually replaced the rule of law in America. No signs of change appear: Senator Kerry and President Bush agree that a president may launch preemptive attacks, use nuclear weapons, terminate treaties, and initiate wars.
Kerry answered a questionnaire from the War and Law League and the San Francisco Examiner. (Ten candidates were queried. Five responded. See Survey & just click on your "back" button to return to this article.)
Among questions: "1. Do you believe that what has been called preventive war or preemptive war is lawful? ... 2. Do you believe that a president can lawfully use nuclear weapons? ... 3. Do you believe that a president has the constitutional authority to terminate or withdraw from a treaty on his own?" Kerry answered "Yes" to all three (12-23-03).
Would you initiate war without Congress's approval? A president may "act quickly without consulting Congress or receiving express Congressional approval" in emergencies or "to defend U.S. national interests," Kerry wrote.
Have the U.S. wars in Yugoslavia, Afghanistan,
and Iraq (2003–) been lawful? Kerry answered "Yes" to all.
Congress's War Power
President Clinton attacked Yugoslavia in 1999 without Congress's OK. In September 2001 Congress let Bush fight whoever he determined aided 9-11 or harbored the culprits; its resolution did not even mention Afghanistan. And in October 2002 Congress let Bush decide whether to attack Iraq. Kerry cast two "aye" votes.
U.S. founders' writings establish that "Congress
alone is constitutionally invested with the power of changing our condition
from peace to war" (Jefferson, 1805). Yet since Truman's 1950 Korean intervention,
presidents have usurped the power and millions have died, including 114,000
Would Kerry change things? "If I am President, I will be prepared to use military force to protect our security, our people, and our vital interests.... I will not hesitate to order direct military action..." (UCLA, 2-27-04). He would launch a preemptive attack, given adequate intelligence of a terrorist threat, and would let no country or institution – presumably the United Nations – "veto what we need to do" (to news media, 7-16-04).
Although promising only to wage war "because
we have to" (Boston, 7-29-04), Kerry reaffirms his 2002 war vote (8-9-04),
even though Bush's reason for war has proved false. Kerry sees a "solemn
obligation to complete the mission" (2-27-04). But what is the mission
and when will it end?
Bush attacked Iraq in March 2003, supposedly to eliminate "weapons of mass destruction." There were none. In the 2000 report by Project for the New American Century, Bush associates openly marked Iraq for conquest as part of a U.S. empire.
Such aggression violates U.S. treaties, including the UN Charter (1945) and the Kellogg-Briand Pact, renouncing war as an instrument of national policy (1928), which Nazi war criminals were charged with breaching. Richard Perle, as a Bush defense adviser, admitted the invasion of Iraq was illegal but favored it anyway (Guardian, UK, 11-20-03).
In 2002 Bush ordered plans for nuclear attacks on seven nations, four of them nonnuclear. Now he wants new types of nukes. Yet under the Nuclear Nonproliferation Treaty, the U.S. pledges not to A-bomb nations lacking the bomb and pledges to work toward eliminating nuclear weapons. Using them would violate international law, UN's World Court declared (1996). And Bush withdrew from the ABM Limitation Treaty, without consulting Congress (2002).
Bush told an interviewer, "I don't know what
you're talking about by international law – I better consult my lawyer"
(CNN 12-11-03). Let's hope he has found out since the revelation of widespread
violations of the Geneva Convention on treatment of war prisoners and the
UN Convention Against Torture, U.S. treaties since 1950 and 1994 respectively.
Treaties Are Laws
The U.S., as Bush says, stands for the rule of law. This does not stop at the waterfront. The Constitution's Article 6 makes treaties federal laws. U.S. statute forbids any citizen or serviceman to commit any war crime, i.e., any grave violation of the Geneva Conventions (1949) or The Hague Conventions (1907). The U.S. Army Field Manual incorporates those treaties.
Hague prohibits attacking or bombarding communities or undefended buildings. Yet the latest war has killed up to 13,802 civilians – mostly by U.S. bombardment of Iraqi communities – London's Iraqbodycount.org conservatively estimates (9-9-04).
The Nuremberg war crimes tribunal condemned plotting and waging aggressive war as a "crime against peace." Yet since 1999, U.S. forces have attacked three nations. Each time, a president has either started the war outright or gotten Congress to relinquish its power to decide.
Do the two contenders care about either the Constitution, which presidents swear to uphold, or international law? Their main issue seems to be who can better conduct unending presidential war.
For fear of "communism" and now "terrorism," Americans have condoned presidential dictatorship over life and death. Hope for the rule of law may fade away unless we, the people, demand it.
Paul W. Lovinger, author and journalist, is secretary of the nonpartisan,
San Francisco-based War and Law League (firstname.lastname@example.org),
which he founded in 1998. It seeks the rule of law in U.S. foreign affairs.