Victor Hansen

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« Legality of Attacking Iran | Main | The Nine Step Program to Tyranny »

May 19, 2007


Jeremy Telman

Just a few quick points.

I see no inconsistency between Marty's description of the WPR and the Bosnia opinion's view that the WPR "recognizes and presupposes the existence of unilateral Presidential authority to deploy armed forces into hostilities." Under our constitutional allocation of war powers, the President has always had constitutional power to authorize the use of force to "repel sudden attacks." So it may be that John Yoo and I are in partial agreement here. However, I would describe the WPR as a gloss on and a limitation of the President's power to repel sudden attacks and not as a power to engage unilaterally in war-making.

I don't disagree with your readings of the various statutes. Those statutes are ridiculously broad and could be used to justify just about any imaginable use of force. So I also agree with you that Congress should bestir itself and give the President clearer guidance as to the limits of the AUMF and the authorization for the use of force in Iraq. The political branches share war powers and so they ought to cooperate. It would be bad faith and bad policy for the President to pursue war with Iran purportedly based on congressional authorizations when it is quite clear that Congress would not support a new military adventure. Forcing Congress to use or to threaten to use its power of the purse to thwart the President's exercise of his foreign affairs powers is no way to manage foreign policy or to engage with the world.

I think I have a more significant disagreement with you on the last-in-time doctrine. My understanding of how that doctrine works is that a legislative enactment will only supersede an international obligation if Congress is express and explicit about its intention to place the United States in violation of international law. It therefore is not enough -- not nearly enough -- if one can argue that "Congress likely authorized purely punitive retaliation in the statute" if purely punitive retaliation is inconsistent with international law -- and I believe it is. Nothing in the AUMF makes clear Congress' intention to authorize the use of force in violation of international law.

I think we also disagree about the meaning of the phrase "necessary and appropriate" in the context of use of force. I take those words to incorporate international norms requiring that use of military force be a last resort, limited to cases of self-defense, and proportional to the threat posed. I thus read that language to preclude the use of force for punitive purposes. It would be absurd to claim that use of force was "necessary" to deter Iran's Revolutionary Guards from aiding insurgents in Iraq since, so far as I know, diplomacy has not even been attempted.

Dave Glazier

Having both lived through the tumultuous era in which the War Powers Act was adopted and written my undergraduate honors thesis on the subject, I think the fairest reading of the statute was that it was a largely symbolic political "smack-down" against a discredited President who was widely resented for continuing the Vietnam War for four years after being elected on a platform of "peace with honor." To infer that this statute could somehow be fairly read as authorizing ANY expansion of presidential warmaking is to ignore its political context and legislative history. In fact I think it is fair to describe WPA proponents as actually overselling the bill's ability to reign in the executive at the time of its enactment since a statute obviously cannot deprive the President of powers granted by the Constitution. But there was simply NO way that Congress was entertaining even the remotest possibility of expandind executive authority. Any implication that the President can unilaterally employ the armed forces of the United States in combat without explicit congressional sanction should therefore be construed as limited to actual instances in self-defense. To my reading, that means either responding to an actual armed attack, or else pre-emptive employment in the narrow sets of circumstances defined by Daniel Webster in the wake of the Caroline incident and subsequently widely endorsed, that is "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation."

There is no way that Iranian nuclear development, particularly short of actual weaponization, can ever meet that threshhold. And since we purport to be talking law, which is supposed to apply evenhandedly, we need to seriously ask ourselves if we really want a rule that would effectively say that "a nation prone to the unilateral use of armed force which posseses a nuclear arsenal it might use is subject to pre-emptive attack?" If that is to be a rule of international law, which proponents of preemptive attacks against "rogue nations" seem to imply it should be, then you've just said that any number of other nations, starting with Iran and North Korea, are lawfully entitled to attack the United States. Certainly no other nation has used military force more times against more other nations in the modern era than the U.S. has. No one has a comparable nuclear delivery capability or arsenal, and few other nuclear powers have not at least renounced first use, whereas our government has recently sought to modernize its weaponry to make it more feasible for tactical use!

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