TCS Daily

The Legalities of War

By Pejman Yousefzadeh - August 28, 2002 12:00 AM

Yale University Law professor Bruce Ackerman's argument against a preemptive military action in Iraq is a triumph of faulty legal reasoning and inaccurate historical analysis.

A recent article by Ackerman makes the case that there is no legal basis for a preemptive war against Iraq by the United States. The theories Ackerman advances, as well as Ackerman's own intellectual history, deserve serious inquiry. When the examination is complete, however, it is clear that Ackerman's views regarding the legal grounds behind any proposed military action against Iraq do not hold up against exacting scrutiny.

First, some background on Ackerman is required to place his arguments in a broader context where they may perhaps be more easily understood.

Ackerman is famous for advancing loose constructionist interpretations of the United States Constitution in order to buttress policy arguments that fit in with his personal ideology. For instance, Ackerman -- who called the ascendance of President Bush to the Oval Office a "constitutional coup," proposed that the president should be prevented from nominating any new Justices to the Supreme Court during at least his first term, citing Ackerman's own disagreement with the High Court's decision in Bush v. Gore.

Ackerman argued that if Bush were actually allowed to exercise his constitutional power as president to nominate Supreme Court justices, he would be acting as an "agent" of a "narrow right-wing majority" on the court.

This appalling and unbelievable proposal is in blatant violation of the president's Article II, Section 2 powers under the Constitution to "nominate . . . Judges of the Supreme Court."

It is, of course, Ackerman's right to think whatever he wants about the Supreme Court's decision in Bush v. Gore. But to argue, as Ackerman does, that his subjective belief and corresponding frustration with the court's decision should somehow lead to the obstruction of presidential powers constitutes sheer political opportunism of the very worst kind. It also represents a wholesale departure from the text of the Constitution, and from the overwhelming degree of consequential precedent that supports the president's right to nominate individuals to be justices of the Supreme Court. And all because Ackerman was displeased with the court's ruling. The petulant character of his argument takes one's breath away.

'Constitutional Moments'

Of course, Ackerman has a history of seeking to rewrite constitutional law and history for the benefit of his preferred policies. As blogger and attorney Stuart Buck points out, Ackerman is rather famous/infamous for his theory of "constitutional moments." Buck explains Ackerman's theory as follows:

"[It] holds that on rare occasions, the American public is so overtaken with a new view of the Constitution's values that a new Constitutional regime arises. Thus, the New Deal era was a 'constitutional moment' in which, thanks to the crisis of the Depression, the American people re-envisioned the national government as a provider of social welfare programs and economic regulation in a way never before seen. And even though the literal text of the Constitution might not strictly allow such programs, that is beside the point."

Again, it becomes clear that Ackerman is more than willing to dispense with the text of, and the history supporting the Constitution and its particular interpretations in order to advance a constitutional theory that is tailor made to support his own preferred policy goals and preferences. Needless to say, the character of Ackerman's theory is nowhere near as important as the results it promises in the policy arena.

And Ackerman's "constitutional moments" ideology is entirely results-oriented.

A respectable argument may certainly be made for whatever policy goals Ackerman advances. However, neither Ackerman nor anyone else can or should seek to misrepresent the history and text of the Constitution merely for the purpose of constructing an ex post facto legal justification for those policies.

Of course, any scholar who so arbitrarily and capriciously seeks to manipulate constitutional text and history in order to advance a certain political ideology or policy goals, will be more than happy to change his or her own constitutional arguments and legal philosophy just as capriciously in order to advance a certain policy agenda, or series of political positions.

Ackerman does precisely that when discussing the legal pretext to any war with Iraq.

Strict Construction?

In addressing the legalities that underlie any consideration whether or not to go to war with Iraq, Ackerman, the advocate of "constitutional moments" that may trump the very text of the Constitution, and the history behind it, suddenly transforms into a strict constructionist who purports to hew very closely to the text of the Constitution, and of Article 51 of the United Nations Charter. This transformation is so abrupt that it gives the reader a bad case of intellectual whiplash. While Ackerman's newfound respect for strict constructionism is a welcome departure from his faulty "constitutional moments" theory, the fact is that Ackerman's analysis of the legalities surrounding the consideration of any war with Iraq is fatally flawed.

Ackerman argues that the current Bush administration seeks to construct an "imperial presidency" by freeing the United States from "the constraints of the Security Council abroad and Congress at home." But the United States is not, and never has been under "the constraints of the Security Council" in crafting its own foreign and military policy.

As Ackerman, the newly minted strict constructionist, should understand, Article II, Section 2 of the Constitution has been repeatedly interpreted by the courts as giving the president wide latitude in conducting foreign affairs, and in exercising his powers as commander-in-chief of the armed forces. There are no "constraints of the Security Council" that can or should be found to constrict presidential authority in foreign and military affairs. To the extent that there is any conflict between the legal documents that underlie the authority of the Security Council, and the constitutional powers and responsibilities of the president of the United States, such contradiction must be resolved in favor of the president. Again, to appeal to Ackerman's newfound status as a strict constructionist, Article VI of the Constitution states the following:

"This Constitution, and the Laws of the United states which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

In expounding upon this passage from Article VI, courts have repeatedly stated that to the extent that there is any conflict between the requirements of a Constitution and the requirements of a particular treaty or executive agreement to which the United States is a signatory, then the Constitution's language and requirements are supreme. As such, Ackerman's argument that the president's authority to conduct foreign and military affairs is "constrained" by the United Nations Security Council is utterly without merit. Any conflict between the U.N. Charter, and Article II, Section 2 of the Constitution is and should be resolved in favor of the language of the Constitution, and its grant of powers to the president.

Congressional authorization

Ackerman then goes on to say that no congressional action authorizes or approves of a proposed preemptive military strike against Iraq, arguing that the use of force resolution passed by Congress immediately after Sept. 11 only authorizes force against those nations, organizations or persons" who 'planned, authorized or aided the terrorist attacks that occurred on Sept. 11.'" Noting this language, Ackerman then argues "[t]he Bush administration has not implicated Hussein in these attacks. If a second invasion of Iraq is justified, it is because of Hussein's future threat, not his past involvement in Sept. 11."

The problem with this line of argument is that in making it, Ackerman has casually dispensed with the perambulatory language of the use of force resolution, which notes that the terrorist attacks of Sept. 11 "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad."

It may plausibly be argued that this language supports and makes accommodations for preemptive military action against the regime of Saddam Hussein. We know, after all, that Saddam's regime is intimately tied to terrorism. Saddam finances the suicide bombers of Hamas, Hezbollah and Islamic Jihad, assisting in the funding of suicide operations, and paying families of suicide bombers a monetary reward for the deaths of relatives who have engaged in suicide bombing. It is likely -- if not completely certain -- that Saddam's monetary contribution to the terrorist cause helped finance scores of terrorist operations, including the terrorist incident at Hebrew University that killed five Americans. More Americans will be killed if something is not done to counter Saddam.

Additionally, it was state sponsored terrorism on behalf of Saddam's government that led to the aborted assassination attempt against President Bush the Elder, when the former president undertook a trip to the Persian Gulf region in 1993. Does this not constitute "terrorism" on the part of the Iraqi regime?

And what of Saddam's continuing efforts to shoot down American planes over the Iraqi southern and northern no-fly zones? Indeed, in light of all of this evidence, any actions on the part of the United States to deal with the threat Saddam Hussein's regime poses can be construed as "self-defense" against an ongoing policy designed to encourage terrorist and military attacks against the United States -- attacks that have already taken American lives, and could take others if action is not taken to remove the threat.

Even assuming :arguendo that Saddam is not now currently involved in terrorism (a tremendously dubious assumption), Ackerman is much too quick and careless in his dismissal of any connection between Saddam's regime and terrorism.

Iraq and Terrorism

Ackerman ignores persistent and oft-repeated reports issued by Czech intelligence indicating that Sept. 11 hijacker and ringleader Mohammed Atta met with the head of Iraqi intelligence in the time leading up to the attacks. These reports raise serious concerns and questions regarding Iraqi involvement in the planning of the attacks.

Ackerman also ignores the very disturbing and troubling prospect that Saddam helped mastermind the 1993 attack on the World Trade Center, an issue that was thoroughly investigated by authors Laurie Mylroie, and R. James Woolsey, the former director of Central Intelligence in the Clinton administration, in their book on the subject. If Ackerman has a problem accepting Woolsey's and Mylroie's theory regarding Saddam's involvement in the 1993 World Trade Center attacks, he would have done us all a service by fully explaining why that theory were off base. Instead, Ackerman chose to deal with the evidence of Saddam's involvement by ignoring it -- hardly a refutation of the evidence.

Ackerman also ignores the portion of the use of force resolution that authorizes military action against those who "harbored" the instigators of the Sept. 11th terrorist attacks against the United States. Al Qaeda has been found operating in the northern autonomous Kurdish region of Iraq, with Iraqi agents also present and in apparent collaboration with the al Qaeda cells. As such, it may be argued that Iraq has "harbored" al Qaeda agents in its country, thus placing military action against Iraq within the ambit of the use of force resolution authorized by Congress after Sept. 11.

Ackerman goes on to argue that neither Article 51 of the U.N. Charter nor American law justify the use of preemptive force being contemplated by the Bush administration. As examples, Ackerman cites President Kennedy's conduct during the Cuban Missile Crisis, and Secretary of State Daniel Webster's negotiations with the British to support his argument that American and international law eschews the use of preemptive force.

Once again, Ackerman's historical arguments are utterly unfounded. With regard to Webster's specific negotiations, Ackerman must know that diplomatic proposals and maneuvering are specific to the issues at hand, and that different tactics and modes of diplomacy must be available to American administrations in accordance with the nature and demands of the issues of the day. Indeed, it is more than passing strange that Ackerman, whose belief in "constitutional moments" allows him to ignore clear constitutional text and well-established legal precedent, now demands that the Bush
administration adopt a strict constructionist stance with regard to Ackerman's selective, self-constructed and self-serving canon of diplomatic precedent. Heads, Ackerman wins. Tails, his opponents lose. It is a very convenient argument, but one that is utterly disingenuous.

As for the example of the Cuban Missile Crisis, Ackerman appears to have forgotten the rhetoric and action of the Kennedy administration in addressing the crisis -- rhetoric and action that clearly contemplated preemption to defend the United States.

On Oct. 22, 1962, President Kennedy addressed the American public, revealing to them for the first time the nature of the crisis, and the American response. His words are worth noting:

"First: To halt this offensive buildup, a strict quarantine on all offensive military in equipment under shipment to Cuba is being initiated. All ships of any kind bound for Cuba from whatever nation or port will, if found to contain cargoes of offensive weapons, be turned back. This quarantine will be extended, if needed, to other types of cargo and carriers. We are not at this time, however, denying the necessities of life as the Soviets attempted to do in their Berlin blockade of 1948. Second: I have directed the continued and increased close surveillance of Cuba and its military buildup. The foreign ministers of the OAS, in their communiqué of October 6th, rejected secrecy on such matters in this hemisphere. Should these offensive military preparations continue, thus increasing the threat to the hemisphere, further action will be justified. I have directed the Armed Forces to prepare for any eventualities; and I trust that in the interest of both the Cuban people and the Soviet technicians at the sites, the hazards to all concerned of continuing this threat will be recognized." (Emphasis added).

The imposition of the military quarantine to intercept and turn back any potential weapons shipments to Cuba constituted a preemptive act on the part of the United States to preserve and protect its national security interests. Additionally, President Kennedy's warning that "further action will be justified" in the event that "offensive military preparations continue," and his command that American forces "prepare for any eventualities" were as clear and unmistakable an indication as could have been asked that the Kennedy administration was contemplating preemptive military action to counteract any threat.

Thus, contrary to Ackerman's stilted and stunted reading of history the Kennedy administration was fully prepared to employ the doctrine of anticipatory self-defense in responding to the Cuban Missile Crisis. Preemptive military action and the implementation of a policy of anticipatory self-defense are hardly the novel concepts that Ackerman makes them out to be.

Anticipatory Self-Defense

Finally, Ackerman argues that we have not yet established that Saddam's regime possesses weapons of mass destruction, or that such weapons will be able to reach American soil. He worries that the employment by the United States of a doctrine of anticipatory self-defense could create a precedent for other countries to launch offensive military actions under the guise of "anticipatory self-defense."

Ackerman again forgets history. Long before Sept. 11th caused the doctrine of anticipatory self-defense to enter the American political lexicon, countries have historically claimed "anticipatory self-defense" in launching aggressive actions against other countries. Regardless of which policy course the Bush administration chooses to follow regarding Iraq, this will continue to be the case. Ackerman would have been well-advised not to advance a blanket condemnation of "anticipatory self-defense," but rather, to ask that we render a case-by-case judgment of each circumstance in which anticipatory self-defense is cited as a justification for the instigation of a military action,
and come to a specific conclusion as to whether that particular invocation of the need for anticipatory self-defense was justified. That would be more intellectually honest than setting up strawman arguments to knock down, as Ackerman does throughout his article.

As for Saddam's possession of weapons of mass destruction, one wonders whether Ackerman was able to maintain a straight face when he wrote that we have not yet been able to prove the existence of such weapons.

We know that Saddam gassed his own people, along with Iranian soldiers during the Iran-Iraq war. And we know that Saddam continues to work on increasing his stockpile of weapons of mass destruction, and the technology needed to deploy them. In testimony before the Senate Armed Services Committee, Charles Duelfer of the Center for Strategic and International Studies gave a detailed and comprehensive review of Iraq's program for developing both long-range ballistic missiles and weapons of mass destruction. Duelfer noted that Iraq maintained a missile development and production infrastructure, and that there were continuing efforts to develop chemical, biological and nuclear weapons. Indeed, Duelfer's conclusions were stark. Duelfer remarked that "[t]he present regime in Baghdad will not give up WMD even if inspectors go in again. The present regime will also remain quite willing to use them." Such evidence directly contradicts Ackerman's uninformed supposition that we have not proven the existence of weapons of mass destruction in Iraq.

Thus, contrary to Ackerman's arguments, there is a factual, historical and legal basis for preemptive military action against Saddam Hussein's regime. Such powerful arguments should be properly recognized in any debate over American policy regarding Iraq. They should not be papered over or ignored in the manner in which Ackerman proposes. Facts are stubborn things, and no matter how much Bruce Ackerman and others might wish to spin law and history to deny the facts, they should not be allowed to get away with it.

The author, a frequent TCS contributor, is the editor and publisher of the PejmanPundit blog.

TCS Daily Archives