Five years ago, the British Parliament said no to an attack on Syria that its prime minister wanted to join the U.S. president in launching. That action, combined with public pressure, was instrumental in getting the U.S. Congress to make clear that it would say no as well, were it absolutely forced to — you know — admit it existed and do anything at all. And that was key to preventing the attack.
So, when Britain’s prime minister this week joined the U.S. president in launching a war despite various members of Parliament and Congress warning against it, one might have thought that Prime Minister May was landing herself in deeper legal trouble than President Trump. Not at all.
The ban on war found in the United Nations Charter and the Kellogg-Briand Pact applies exactly equally to all nations except the five biggest weapons dealers and war makers on earth, and effectively not at all to any of those five because thay have veto power over anything the UN or its dependencies — including courts — attempt to do.
But Britain’s violation of international law in abetting the 2003 attack on Iraq has been central to proposals supported by Opposition Leader Jeremy Corbyn to prosecute former Prime Minister Tony Blair. And the existence of such laws has been widely admitted and discussed in the UK over the years. When the existence of such laws made it into half a sentence from the ACLU this week, in contrast, it was something of a rarity. No Congress Members to my knowledge have mentioned the UN Charter or the Kellogg-Briand Pact or the fact that war is illegal no matter who launches it.
In the United States, the conversation is dominated by the fact that the U.S. Constitution gives Congress, and not the president, the power to make war. But I’ve never found any U.S. resident who’s told me that if the U.S. were bombed by a foreign nation, he or she would give a rat’s campaign contribution whether the attack was ordered by an executive or a legislature. And the notion that the laws that ban war are overridden by the fact that the ancient (if sacred) Constitution mentions war is rendered ridiculous by the fact that the same sentence that gives Congress war power also gives it the power to hire pirates — which Congress has admitted for well over a century has been banned, even as hiring proxies in Syria and elsewhere is treated as completely acceptable.
This state of discourse in the United States convinces the public that only Congress has the legal authority to stop a war. And Congress, of course, makes that claim while refusing to ever act on it, to ever cut off funding or begin impeachment or simply forbid a war. In fact Senator Corker is proposing to formally put the whole charade out of its misery by declaring that presidents can do what they have done anyway since 1941, namely whatever the hell they want — and the Constitution be damned.
A limited side-discourse is concerned that the president probably has a memo from the Office of Legal Counsel pretending to explain why each new war or escalation is legal, and he’s keeping it secret. My concern with this is that any concern with it seems to suggest that it matters. No memo can legalize a crime, and we should stop playing into the pretense that it might.
Meanwhile, over in London, a legitimate peace advocate in Corbyn, in the very land that invented impeachment, is not moving to impeach the prime minister any more than are members of Congress who days ago said that bombing Syria would be impeachable. Instead he’s proposing to create a war powers act, a law requiring a vote of Parliament prior to any war.
If that’ll stop a war, I’m for it. That the U.S. Constitution hasn’t worked, and that the U.S. War Powers Act of 1973 hasn’t worked, doesn’t mean a British War Powers Act can’t. If it even works 1% of the time that’s all to the good. But should we give no consideration to the long-term impact of normalizing crimes by worrying over who gets to authorize them? Should we not, as long as we’re proposing such things, give equal consideration to a Ludlow Amendment (the proposal stopped by President Franklin Roosevelt that would have required a vote by the public before any branch of government launched a war)?
Regardless of all my concerns, I’ll take Corbyn’s more democratic proposal over Corker’s royalist one any day.
Can law become a tool to restrain formalized governmental mass murder? It hardly seems that lawlessness is the answer. But how relevant is the entire field? How does it look from the point of view of those on the receiving end of the wars and of the treaties? This topic will be explored at a global conference in Toronto this September that I encourage people to attend.