September 23, 2002
"The Legality Of Using Force"--An Op-Ed by Prof. Bruce Ackerman
(This essay was originally published in the September 21, 2002, edition of the New York Times.)
The Legality Of Using Force
By Bruce Ackerman, Sterling Professor of Law and Political Science
As Congress confronts the prospect of war, it should consider some constitutional fundamentals. The Bush administration would have us believe that international law contains only ambiguous or advisory requirements. In fact, the United Nations Charter was ratified as a treaty by the Senate after World War II, and the Constitution explicitly makes all treaties "the supreme law of the land."
The president has no power to pick and choose among the laws that bind him -- unless Congress tells him otherwise. This is what makes the precise terms of any Congressional authorization for war against Iraq so important. According to judicial precedents, treaties like the United Nations Charter can be trumped only by subsequent legislation. The Charter would lose its status as governing domestic law if Congress explicitly authorizes the president to make war in violation of its terms.
A narrowly written Congressional authorization for action against Iraq, however, would not violate the United Nations Charter and would not change the legal status quo. Under such an approach, Congress can make it clear that the country is ready to use force against Iraq, but only if this is consistent with Charter requirements.
The resolution that Mr. Bush submitted to Congress Thursday takes a much broader tack. It would allow him to use force without regard to the legal limitations imposed by the United Nations Charter.
This effort to gain greater authority contrasts sharply with the approach taken by the president's father. In the run-up to the Persian Gulf war, George H.W. Bush first obtained a United Nations Security Council resolution permitting the use of force against Iraq. Only then did he seek and receive authorization for war from Congress. This is by far the better procedure, allowing Congress to make the final judgment after it becomes clear that no peaceful resolution of the conflict is possible.
In contrast, the president's proposal lets him "use all means that he determines to be appropriate, including force" -- even if he fails to gain further Security Council authorization. This goes far beyond anything allowed by the Charter, which restricts the unilateral use of force to self-defense against "armed attack." The president's resolution does not mention this crucial limitation. Instead, it converts self-defense into a broad doctrine that can justify unilateral pre-emptive strikes.
This represents a sharp break with past American practice. Even during the Cuban missile crisis, President Kennedy recognized the stringent limitations the Charter places on the right of self-defense. When intercepting Soviet ships carrying missiles to Cuba, he was careful to invoke the authority granted by the Charter to regional peacekeeping institutions. When America has invoked self-defense in the past, it was in response to clear threats by hostile nations to its soil or to its citizens.
The president's resolution does not assert that Saddam Hussein was involved in the Sept. 11 attacks, but claims an "inherent right" to act in self-defense against risks that do not pose a direct and immediate threat of armed attack. This is nothing less than the repudiation of the United Nations Charter's effort to restrict unilateral uses of force to extreme cases, and to make collective, multinational security measures the norm.
This is not the time for Congress to eliminate these long-standing restrictions on unilateralism. Its war resolution should permit the use of military force only after authorization by the Security Council. If the president concludes that the Security Council has reached an impasse that makes it impossible to deal with the Iraqi threat, he should then return to Congress to make his case for throwing off the restraints imposed by the United Nations Charter.
Only then should we consider the need to abandon legal restrictions that have guided America for two generations.
Bruce Ackerman is a professor of law and political science at Yale.