The following is an archived copy of a message sent to a Discussion List run by the Campaign Against Sanctions on Iraq.

Views expressed in this archived message are those of the author, not of the Campaign Against Sanctions on Iraq.

[Main archive index/search] [List information] [Campaign Against Sanctions on Iraq Homepage]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

[casi] Another View: Invading Iraq Is Unconstitutional

Another View: Invading Iraq Is Unconstitutional


President George Bush is leading this country into a
war that is at once unconstitutional, a gross
violation of international law, aggresses our own
civil liberties and threatens our national security by
violating norms of common sense, including the Powell
Doctrine stemming from the lessons learned from the
first Gulf War.

First, this war violates the U.S. Constitution. The
non-delegation doctrine of American constitutional law
forbids Congress delegating to another branch of
government its own unique core responsibilities.

The resolution rammed through the Congress by this
administration in the emotional spasm following 9-11
was exactly that: a delegation to the president of the
war-deciding power exclusively given to Congress by
the Constitution. That exclusivity of the power to
decide for peace or war was what motivated Thomas
Jefferson to write the constitutional framers from
Paris, where he was American ambassador to our oldest
ally, France, and congratulate them for "chaining the
dog of war."

The Congress, under unrelenting pressure from
President Bush, simply abdicated its constitutional
power by delegating the decision for peace or war to
this man hell-bent for war at any cost. The Congress
declared its own bankruptcy as the president
demonstrated his own lack of the qualities of
leadership to accomplish by negotiation and diplomacy
the preservation of the peace by peaceful means.

Second, international law, including scores of
treaties to which we are party, made part of our
domestic law by the supremacy clause of the
Constitution, forbids our waging aggressive war. We
have not been attacked by Saddam Hussein's Iraq. He is
all the bad things Mr. Bush claims. But any connection
to Osama bin Ladin, who has attacked the United
States, is simply nonexistent. The only connection
between the two is President Bush, who is pushing
together two men who loathe each other.

The late Supreme Court Justice Robert Jackson, the
American prosecutor of the war criminals at the
Nuremburg trials following World War II, stated the
American definition of international law, later made
the universal law of the entire world by unanimous
acceptance by the United Nations: "Our position is
that whatever grievances a nation may have, however
objectionable it finds the status quo, aggressive
warfare in an illegal means for settling grievances or
for altering those conditions."

Mr. Bush's war violates international law and
constitutes a war crime.

Third, Mr. Bush's war violates the Powell Doctrine,
formulated by his own secretary of state when Colin
Powell served admirably as chairman of the Joint
Chiefs of Staff under the first President Bush in the
Gulf War of 1990-91.

Wars, if we were to take part, were to have a clearly
identifiable and achievable goal. Sufficient force
must be assembled and used with restraint. And third,
there must be a sensible and swift exit strategy. Only
the second is now done: God knows we have assembled
the power to wage war and topple Saddam. But we do not
do this to establish democracy by launching 3,000
precision-guided missiles at Iraq. Where has democracy
been established by destroying a country?

Democracy is a special flower that must be grown
within a people's heart and soul over decades and
centuries. Our help can be vital. But it must be done
by our own example in a world at peace, not by
military occupation under a new colonial, imperial,
military government enforced by brute power.

Nor will we rid the world of its dictators or their
weapons of mass destruction by launching our own
weapons of mass destruction. Our means and our ends
must be congruent. Our own brutal aggression will not
accomplish anything but increasing the misery of the
Iraqi people and at horrible cost to us as well.

We do not wage aggressive war without debasing our own
morality and eviscerating our own civil liberties. We
degrade our own democracy as we attempt to export this
flower which must be home-grown. And no exit strategy
exists. We will be there for decades as the new
colonial imperialists.
Beware the karma that will surely follow.

Ed Firmage is professor of law, and Samuel D. Turman
Professor of Law, Emeritus, at the University of Utah
College of Law. He is the author, with Francis
Wormuth, of To Chain the Dog of War: the War Power of
Congress in History and Law.

Do you Yahoo!?
Yahoo! Web Hosting - establish your business online

Sent via the discussion list of the Campaign Against Sanctions on Iraq.
To unsubscribe, visit
To contact the list manager, email
All postings are archived on CASI's website:

[Campaign Against Sanctions on Iraq Homepage]