‘‘Our war on terror is well begun, but it is only begun,” declared President Bush in his January 29th State of the Union address. “This campaign may not be finished on our watch — yet it must and it will be waged on our watch.” While the president’s display of resolution drew enthusiastic bipartisan applause, it provoked a more ambivalent response from those who recall that throughout history, war has been regarded as a curse — a pitiless scourge that depletes national wealth, constricts individual freedom, and devours the lives of the bravest men.
James Madison observed in 1795, “Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.... No nation could preserve its freedom in the midst of continual warfare.”
President Bush’s address seemed an ironic tribute to the accuracy of Madison’s dire warning. Set against the backdrop of a potentially endless war, Mr. Bush’s speech outlined vast new expenditures for the military and the new “homeland defense” apparatus, as well as a new “national service” initiative that would accelerate the regimentation of our nation’s domestic life. The address also acknowledged that the “war on terror” would require a new round of deficit spending.
Of course, our nation should not remain passive in the face of the Black Tuesday atrocity. The blood of our innocent dead cries out for justice — both the eternal justice that God alone can provide, and the temporal variety that our government was intended to pursue. But a righteous cause does not consecrate morally defective means. When measured against the U.S. Constitution and the Christian “Just War” tradition, the ongoing “war on terrorism” must be judged a morally tainted exercise.
Moral Tests of War
Although the Just War concept is most strongly identified with the Catholic faith, its principles have been widely accepted throughout Christendom. St. Augustine and St. Thomas Aquinas are regarded as the fathers of the Just War doctrine, and notable scholars of the “law of nations,” such as 17th-century Dutch legal commentator Hugo Grotius and 18th-century Swiss jurist Emmerich de Vattel, have also elaborated on the concept. “The just-war tradition is not an algebra that provides custom-made, clear-cut answers under all circumstances,” notes Catholic scholar George Weigel. Rather, it is intended “to provide guidance to public authorities on whom the responsibilities of decision-making fall.”
Just War theory involves two sets of moral criteria: the jus ad bello, or “war decision law”; and jus in bello, or “war conduct law.” To be regarded as morally sound, a “responsible public authority” must make the decision to go to war. It must be the product of a “right intention,” such as “re-establishing justice when offended, repairing an injury, or defending oneself against aggression,” observes Msgr. Luigi Civardi. The envisioned war must also be “proportionate” — meaning that the good accomplished by war would be greater than the evil that would result were another alternative pursued. And all other reasonable avenues of redress must be exhausted before a nation resorts to arms.
A morally sound decision to go to war being made, the ensuing campaign is subject to the “war conduct law.” This standard deals, once again, with the test of “proportionality,” as well as the principle of “discrimination.” Dr. Charles Rice, a professor of law at Notre Dame University, explains that “Proportionality relates not only to the war itself (i.e., the whole enterprise must be for a proportionate good), but also to the use of particular tactics or weapons....” Under the principle of “discrimination,” Dr. Rice continues, “it can never be justified intentionally to kill innocent noncombatants” — although “it could be morally justified to attack a military target of sufficient importance and urgency even though the attacker knows, but does not intend, that innocent civilians in the vicinity will be killed.”
Significantly, the Bush administration has insisted that its conduct of the opening phase of the “war on terrorism” — the bombing campaign against Afghanistan — comports with the Just War doctrine’s “war conduct law.” Writing in the December 24th issue of The Weekly Standard, Joe Loconte, a religious scholar with the Heritage Foundation, described a meeting at the Pentagon between Defense Secretary Donald Rumsfeld and a group of Catholic, Protestant, Jewish, and Islamic clerics. After reviewing details of the military campaign in Afghanistan, the group concluded that “the United States has waged a war on terrorists while mostly avoiding civilian casualties — which is to say it is fighting a just war with just means.” Having attended the meeting, evangelical leader Charles Colson insisted that the military campaign in Afghanistan “would fit the Augustinian-Aquinas playbook perfectly.”
Many neutral observers on the ground in Afghanistan, whose access to the battlefield has been unfiltered and much more comprehensive, have come to drastically different conclusions. But the conduct of the war is the subject of the next article (page 29). The present discussion will examine whether the ongoing “war on terrorism” satisfies the first set of Just War criteria, the “war decision law.” In our republic, such questions must be examined in light of the assigned powers set forth in the U.S. Constitution.
One Man’s Decision?
“When I called our troops into action,” observed the president during his State of the Union address, “I did so with complete confidence in their courage and skill.” That the murderous aggression against our country justified a military response is beyond dispute. But was it the president’s proper role to commit our nation to a war against Afghanistan?
The Black Tuesday attack was an act of war, and President Bush acted in accord with his constitutional responsibilities by taking steps to protect our nation against further assaults. Before the day was through, however, the president and his advisors had mapped out a lengthy military campaign that could involve military action in 60 countries, beginning with Afghanistan — where terrorist chieftain Osama bin Laden based his operations. “Let’s pick them off one at a time,” Mr. Bush told his emergency “war cabinet.”
Secretary of Defense Donald Rumsfeld informed the president that it would take weeks to organize an effective military campaign. The president had ample time to seek a congressional declaration of war, as the Constitution dictates. Such a declaration would have received nearly unanimous support. President Bush, however, chose a different course.
Early on the morning of September 12th, Bush called British Prime Minister Tony Blair to confer about the possibility of assembling an “international coalition” to carry out the military campaign. “The two leaders agreed it was important to first move quickly on the diplomatic front to capitalize on the international outrage about the terrorist attack,” reports the Washington Post. “If they got support from NATO and the United Nations, they reasoned, they would have the legal and political framework to permit a military response afterward.” (Emphasis added.)
The Bush administration acted quickly to obtain the approval of the UN and its regional affiliate, NATO. The North Atlantic Council invoked Article V of the NATO charter, describing the Black Tuesday atrocity as an attack on the entire alliance. And the UN Security Council passed Resolution 1373, a measure drafted by the Bush administration’s UN representative to authorize the “war on terrorism.”
One gets authorization from a superior, not from a subordinate. In seeking permission to take our nation to war, President Bush was willing to defer to the UN Security Council, but not to Congress.
Nine days after the attack on our country, the president made a dramatic televised address to a joint session of Congress in which he identified the Taliban regime then in control of Afghanistan as a state sponsor of Osama bin Laden’s al-Qaeda terrorist network. The Taliban junta, the president declared, “is threatening people everywhere by sponsoring and sheltering and supplying terrorists. By aiding and abetting murder, the Taliban regime is committing murder.”
This statement is in harmony with the established principles of the “law of nations,” as understood by the Constitution’s Framers. By providing shelter and material aid to terrorists within its borders, a government becomes party to any violations of international peace they commit. Accordingly, the president acted properly in presenting an ultimatum to the Taliban regime: “They will hand over the terrorists, or they will share in their fate.”
However, the president failed an important Just War test when the Taliban suggested that it might be willing to surrender bin Laden and his henchmen — if the United States provided evidence of their guilt. While the Taliban’s offer might not have been made in good faith, the Just War doctrine required that we make a good faith effort to obtain satisfaction by means other than war. If the Taliban offer proved insincere, then a Just War could be declared and prosecuted to its conclusion.
But the president, in any case, conspicuously declined to request a declaration of war from Congress. Some observers have claimed that since only a scant handful of Muslim states recognized the Taliban junta, it was illegitimate — and thus not a proper target of a declaration of war. But President Bush treated the Taliban as the legitimate governing authority when he demanded its cooperation in arresting and extraditing terrorists. If the Taliban was a suitable subject for a presidential ultimatum, it was just as suitable a target for a congressional declaration of war.
Under the “law of nations” as understood by the Founding Fathers, declarations of war are intended to put both governments and their subjects on notice of impending hostilities. Reflecting the recognized international conventions at the time of the American founding, Emmerich de Vattel pointed out in his definitive work The Law of Nations that issuing a declaration of war is a duty owed “to humanity, and especially to the lives and peace of the subjects” of the hostile government. By issuing such a declaration, the aggrieved nation formally notifies “that unjust nation, or its chief, that we are at length going to have recourse to the last remedy, for the purpose of bringing him to reason.”
Vattel also emphasized that where “custom has introduced certain formalities in the business” of declaring war, those formalities must be dutifully observed, unless they have been “set … aside by a public renunciation.” In the case of the United States of America, the “formalities” in question are specifically defined not by custom, but by the Constitution — which has not been amended to relieve the president of his duty to seek a formal declaration from Congress.
Congressional Abdication
Prior to the president’s September 20, 2001 address, Congress passed a joint resolution authorizing the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, or aided the terrorist attacks on September 11.” (Emphasis added.) As commentator Sheldon Richman observes, that resolution was not a declaration of war, but “a grant of Caesarian power.” When asked if the president would have to obtain congressional authorization to attack nations other than Afghanistan, Senate Majority Leader Tom Daschle (D-S.D.) replied: “No, he certainly wouldn’t have to clear it with us. He’s an independent branch of government.” Daschle’s reply misrepresents the Constitution’s division of war powers between the executive and legislative branches. In our constitutional system, the president does not have the privilege of committing our nation to war; only Congress has the power to make that decision.
The description of the president as “commander in chief” of our military describes a function, not an office. In peacetime, this presidential role insures civilian control of our military. But even in wartime, the president exercises his role under a mandate from Congress, and subject to its budgetary and regulatory restraints.
In carrying out the functions of commander in chief, wrote Alexander Hamilton in The Federalist, No. 69, the president’s authority “would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces … while that of the British king extends to the raising and regulating of fleets and armies, all which, by the Constitution … appertain to the legislature.”
In a June 1793 essay written as the infant American republic confronted the prospect of a war with Britain, Hamilton re-emphasized the primacy of Congress’ role in committing our nation to war: “It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation in a state of War.”
Notably, Hamilton was an outspoken proponent of “energy in the executive.” But like the other Framers of the Constitution, he insisted that the president should devote his energies to carrying out the constitutionally sound measures passed by Congress — including declarations of war.
War Without End?
In a 1798 letter to Thomas Jefferson, James Madison pointed out: “The Constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature.” Allowing the executive to decide unilaterally “the question of war” would be tantamount to installing a monarchy — and potentially set the stage for “continual warfare,” a condition in which liberty cannot long survive.
The Bush administration has eagerly acted upon Congress’ open-ended grant of power. In early January, Secretary of Defense Rumsfeld warned that 15 countries are potential targets of U.S. military strikes. Rumsfeld has also advised that the “war on terror” might last for more than a single lifetime, and Bush administration strategists have reportedly been reviewing contingency plans for a conflict lasting 50 years or more.
By abdicating its constitutional war powers, Congress violated a key tenet of the Just War doctrine. President Bush committed an even more grievous violation by ignoring Congress and deferring to the supposed authority of the UN Security Council to authorize his decision to take our nation to war.
“We are supported by the collective will of the world.... [T]he world has come together to fight a new and different war,” insisted the president in the White House report The Global War on Terrorism: The First 100 Days. In a similar vein, UN Secretary-General Kofi Annan has stated with satisfaction that by presiding over the global “war on terrorism,” the world body is providing “collective global defense against a global enemy.” By doing so, the UN is rapidly gaining both the power and the pretense of legitimacy it needs to become the seat of a socialist World State.
In addition, our nation’s unwise involvement in a UN-directed “anti-terrorism” coalition has made us allies with some of the world’s most notorious terrorist states. Syria, a chief exporter of terrorism, presently sits on the UN Security Council, where it helps preside over the “war on terrorism.”
Until the president described it as part of the “axis of evil,” Iran was also a member of the UN-directed coalition. Iran is a patron of Osama bin Laden, and a surrogate of Russia — itself a permanent member of the UN Security Council. Communist China, another permanent Security Council member, generously supplied military hardware and assistance to Afghanistan’s Taliban junta. And the Northern Alliance, brought to power with the backing of the UN-organized coalition, is a hideous collection of terrorists, drug traffickers, and degenerates that differs from the Taliban only in matters of nuance. How can a “war on terrorism” in which terrorists are our comrades-in-arms be considered just?
The primary stated objective of the war on Afghanistan was to get Osama bin Laden. Yet when bin Laden and his chief lieutenant, Mullah Omar, eluded capture, the coalition declared victory because the Northern Alliance had supplanted the Taliban. In addition, the president has warned that tens of thousands of bin Laden’s terrorists have fled Afghanistan and pose a continuing threat to our nation. Given all of this, it would appear that the war on Afghanistan fails the test of proportionality.
The costs of perpetual war, as measured in lives, liberties, wealth, and national independence, also appear to violate the Just War principle of proportionality. The same principle requires exploring alternatives to warfare. The only realistic alternative to an interminable “war on terrorism” is to repudiate our present interventionist foreign policy and restore the Founding Fathers’ policy of enlightened neutrality.
That policy would dictate non-intervention in the affairs of other nations coupled with maintaining a military geared exclusively toward national defense. It would require that Congress re-claim its constitutional role as the sole body with the power to commit our nation to war. And, most importantly, it would demand that our nation liberate itself from the United Nations — which, far from being the world’s “last, best hope for peace,” is becoming an engine for perpetual war.
