[Newspoetry] Expand the War on War Crimes

[Donald L Emerick]

We should support our troops, as there is no good reason not to support them, generally, even in the present awful conflict.

This does not mean that we have to agree that our political leadership is in anyway correct about the wisdom of the present use of those troops.  Moreover, even were I to agree with you that the war is arguably illegal (and I can quite agree to the merits of that proposition, personally, without believing that it is a finding that would necessarily occur to any duly constituted body of international law jurists), that does not mean that the troops themselves have any taint of illegality, so far as their carrying out their otherwise lawful responsibilities, under any regime like ours that is, generally, organized to support the rule of law.

To taint the troops, you probably would have to argue that the illegality of the war is so patently obvious that reasonable folks could not possibly disagree about its legality.  In such a case, then, the troops would have no good reason to believe that they are lawfully acting under the color of directions from a lawful authority.  That is, they would have independent good reason to believe that their leaders (our leaders)  have obviously exceeded the limits of their lawful authority as to some critical and material aspect of their warlike activities -- and that this excess's obviousness therefore becomes as lawful as a fact could ever be.  As a reasonable person, alas, I do not see any thing nearly as obvious as that in the present circumstances.  I see a poorly reasoned argument by Mr. Bush and Mr. Blair; I see that their argument is quite weakly supported by the extant facts.  But, I do not see that, poor and weak as the case for US military hostilities might be, that it so clearly exceeds the scope of their lawful authority, under International Law, that it has to be deemed criminal.

I also note here, that Mr. Bush, or his advisors, were clearly mistaken in his most recent address to the nation if they meant to appeal to the nation's own so-called sovereign right to wage war.  That sovereign right, I am quite convinced, no longer exists under International Law, as it has been -- quite properly, I'd argue -- subordinated under the increasing comity of nations over the last centuries, in a fashion akin to the growth of  international common law of nations.  Moreover, even if the evolution of common law were not enough to substantiate my claim, the US and Britain have been signatory to a host of international treaties, such as the present lynch-pin of the United Nations treaty.  There is simple no longer an unrestricted right to wage war; any nation's leadership that acts that way would most likely be acting as a gang of war criminals.

I suspect, though, that Mr. Bush -- in referring to that so-called right, was instead referring to a rather different, but related legal authority.  Namely, if the US as a nation could participate lawfully in some international conflict, does Mr. Bush have present legal authority under the internal laws of the US to commit the US to that lawful participation?  And, yes, under our laws, after the dubious abdictatory of Congressional dereliction last fall (dubious because I would argue, though I lack legal standing, formally, to make this argument: that the war power of Congress is so absolutely vested that it may not be delegated to the very institution (the presidency) from which it was with-held, at the inception of the Constitution, because executives are never deemed ever to be credible or to be trusted in exercising the awesome power to declare war), the Presidency seems to been given lawful discretion to exercise the war power, as he, in his sole discretion, deems it to be useful(!) to do so, provided that he report back to Congress from time to time.

But, who has standing to sue Congress for an unlawful delegation of power?  The Courts, especially these overly conservative ones of our times, are stacked against such legal reasoning as mine.  They are unlikely ever to reverse Congress on such a question of law as this.  For instance, they might duck the issue, and say that it is a political question, to be resolved in due time by the people, in their regularly scheduled elections.  But, in truth, this is a not a political question in the classical sense, as there is no good reason for any Court to believe that political remedies could fix the problem.  There are some political questions that require the Constitution to be enforced, when the political system is most disabled from being able to rectify the problem through its elections mechanism.  We do not, for instance, have a single issue referendum mechanism, to determine if all members of Congress should be ousted, to force new elections, when Congress unlawfully abdicates its powers.

Well, I have mashed together a lot of issues in this brief note.  I urge support of our troops, but I'd also suggest that there are many meanings to the term support.  I personally liked the one seen here in Madison yesterday, which said "Support our troops: bring them home now!"

Thanks for listening,
Donald L Emerick
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