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Impending
Constitutional Crisis:
The
Rush to War
By
Richard
Falk
Visiting Distinguished Professor, Global Studies,
University of California, Santa Barbara and Milbank
Professor of International Law Emeritus, Princeton
University
TFF
associate
August 27, 2002
The American Constitution at the very beginning of the
republic sought above all to guard the country against
reckless, ill-considered recourse to war. It required a
Declaration of War by the legislative branch, and gave
Congress the power over appropriations even during
wartime. Such caution existed before the great effort of
the 20th century to erect greater barriers to war by way
of international law and public morality, and to make
this resistance to war the central feature of the United
Nations Charter. Consistently with this undertaking
German and Japanese leaders who engaged in aggressive war
were punished after World War II as war criminals. The
most prominent Americans at the time declared their
support for such a framework of restraint as applicable
in the future to all states, not just to the losers in a
war. We all realize that this struggle to avoid war has
been far from successful, but it remains a goal widely
shared by the peoples of the world and still endorsed by
every government on the planet.
And yet, here we are, poised on the slippery precipice
of a preemptive war, without the benefit of meaningful
public debate. The constitutional crisis is so deep that
it is not even noticed. There are many devils in these
details! The unilateralism of the Bush White House is an
affront to the whole world, which is unanimously opposed
to the proposed war. The Democratic Party, even in its
role as loyal opposition, should be doing its utmost to
raise the difficult questions. Instead, the Senate
Foreign Relations Committee, under the chairmanship of
Democratic Senator Biden, has organized two days of
hearings, notable for the absence of critical voices.
Such hearings are worse than nothing, creating a forum
for advocates of war, fostering the illusion that no
sensible dissent exists, and thus serving mainly to raise
the war fever a degree or two. How different might the
impact of such hearings be if respected and informed
critics of a proposed preemptive war, such as Hans von
Sponeck and Denis Halliday, both former respected UN
coordinators of humanitarian assistance to Iraq who
resigned in protest a few years back, were given the
opportunity to appear before the senators. The media,
too, has failed miserably in presenting to the American
people the down sides of war with Iraq. And the
citizenry, too, has been content to follow the White
House on the warpath without demanding to know why the
lives of young Americans should be put at risk, much less
why the United States should go to war against a distant
foreign country that has never attacked us and whose
population has endured the most punishing sanctions in
all of history for more than a decade..
This is not just a procedural demand that we respect
the constitution as we decide upon recourse to war, the
most serious decision any society can make, not only for
itself, but for its adversary. It is also, in this
instance, a substantive matter of the greatest weight.
The United States is without doubt the world leader at
this point, and its behavior with respect to war and law
is likely to cast a long shadow across the future. To go
legitimately to war in the world that currently exists
can be based on three types of considerations:
international law (self-defense as set forth in article
51, backed by a UN mandate as in the Gulf War),
international morality (humanitarian intervention to
prevent genocide or ethnic cleansing), and necessity (the
survival and fundamental interests of a state are
genuinely threatened and not really covered by
international law, as arguably justified the Afghanistan
War).
With respect to Iraq, there is no pretense that
international law supports such a war and little claim
that the brutality of the Iraqi regime creates a
foundation for humanitarian intervention. The
Administration argument for war rests on necessity, the
alleged risk posed by Iraqi acquisition of weapons of
mass destruction, and the prospect that such weapons
would be made available to al Qaeda for future use
against the United States. Such a risk, to the scant
extent that it exists, can be addressed much more
successfully by relying on deterrence and containment
(what worked against the far more menacing Soviet Union
for decades) than by aggressive warmaking. All the
evidence going back to the Iran/Iraq War and the Gulf War
shows that Saddam Hussein, whatever else, responds to
pressure and threat, and is not inclined to risk
self-destruction. Indeed, if the US attacks and if Iraq
truly possesses WMD, then the feared risks are then
likely to materialize as Iraq and Hussein confront defeat
and humiliation, and have little left to lose.
A real public debate is needed not only to revitalize
representative democracy, but to head off an unnecessary
war likely to bring widespread death and destruction, as
well as heighten regional dangers of economic and
political instability, encourage future anti-American
terrorism, and give rise to an American isolationism that
this time is not of its own choosing!
We must ask why is the open American system so closed
in this instance. How can we explain this unsavory rush
to judgment when so many lives are at stake? What is now
wrong with our political system, with the vigilance of
our citizenry, that such a course of action can be
embarked upon without even evoking criticism in high
places, much less mass opposition in the streets?
©
TFF & the author 2002
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