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  1. #1
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    An illegal War???

    I recently came across a thead were someone noted that our invasion of Iraq constituted an illegal war. The question becomes; illegal by what standard?

    If we break law into four basic categories:
    1. Civil: civil law usually means a system of law which is codified and subsequently applied and interpreted by judges
    2. Common: based on judicial decisions that create binding precedent
    3. Customary: Customary law are systems of law that have evolved largely on their own within a given country and have been adapted to meet the needs of the particular culture.
    4. Religious: Many religions contain a body of law - for example, Halakha in Judaism, Sharia in Islam, and various forms of Canon law for different denominations of Christians.

    So, my contention is that the U.S. can invade any nation, on any grounds it chooses, without committing an illegal act. I am not claiming all wars are moral or justified. I am only claiming wars enacted by the U.S. are never illegal so long as they are properly authorized by the President and Congress.

    Article 1, Section 8 of the U.S. Constitution specifically gives Congress the right to declare war. It does not specifically limit the reasons Congress may declare war.

    If you wish to argue my contention, please state specifically which area of law is being broken.
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  2. #2
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    Re: An illegal War???

    I would agree but I can't place all wars in the same category. Some are clear cut decisions and some are not. Iraq is not a conventional war - it was an invasion based on faulty evidence with no exit plan.
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  3. #3
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    Re: An illegal War???

    I have seen many here claim the Iraq War is illegal, but I have seen zero support from actual international law.

  4. #4
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    Re: An illegal War???

    The lack of justification for a war alone, is not sufficient to declare the war illegal, it is only sufficient enough to call it unjust.
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  5. #5
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    Re: An illegal War???

    Kevin- you have defeated your argument by calling the war...a war. I have studied the Constitution extensively, and there is absolutely no way you can make a case that this war is Constitutional. The resolution that Congress passed in 2002 gave the President power to decide whether or not he would use military force...which is NOT a declaration of war. Thomas Woods in his book, The Politically Incorrect Guide to American History, has a very nice section on this. Whether or not you think this war is unjust is a different question, but if you hold that the Iraq War is a war, then it is an illegal one as Congress did NOT formally declare war on Iraq.

    Article 1 Section 8 gives Congress power to declare war...that is IT.

    You need to understand this.

    A declaration of war is necessary for a war.

    I'm not debating the war in Iraq...I'm debating the concept of declaring war.

    Here is Congressman Ron Paul (Republican-Texas) on the unconstitutionality of this war...and he would know...he's in the thick of it:

    The last time Congress declared war was on December 11, 1941, against Germany in response to its formal declaration of war against the United States. This was accomplished with wording that took less than one-third of a page, without any nitpicking arguments over precise language, yet it was a clear declaration of who the enemy was and what had to be done. And in three-and-a-half years, this was accomplished. A similar resolve came from the declaration of war against Japan three days earlier. Likewise, a clear-cut victory was achieved against Japan.

    Many Americans have been forced into war since that time on numerous occasions, with no congressional declaration of war and with essentially no victories. Today’s world political condition is as chaotic as ever. We’re still in Korea and we’re still fighting the Persian Gulf War that started in 1990.

    The process by which we’ve entered wars over the past 57 years, and the inconclusive results of each war since that time, are obviously related to Congress’ abdication of its responsibility regarding war, given to it by Article I Section 8 of the Constitution.

    Congress has either ignored its responsibility entirely over these years, or transferred the war power to the executive branch by a near majority vote of its Members, without consideration of it by the states as an amendment required by the Constitution.

    Congress is about to circumvent the Constitution and avoid the tough decision of whether war should be declared by transferring this monumental decision-making power regarding war to the President. Once again, the process is being abused. Odds are, since a clear-cut decision and commitment by the people through their representatives are not being made, the results will be as murky as before. We will be required to follow the confusing dictates of the UN, since that is where the ultimate authority to invade Iraq is coming from – rather than from the American people and the U.S. Constitution.

    Controversial language is being hotly debated in an effort to satisfy political constituencies and for Congress to avoid responsibility of whether to go to war. So far the proposed resolution never mentions war, only empowering the President to use force at his will to bring about peace. Rather strange language indeed!

    A declaration of war limits the presidential powers, narrows the focus, and implies a precise end point to the conflict. A declaration of war makes Congress assume the responsibilities directed by the Constitution for this very important decision, rather than assume that if the major decision is left to the President and a poor result occurs, it will be his fault, not that of Congress. Hiding behind the transfer of the war power to the executive through the War Powers Resolution of 1973 will hardly suffice.

    However, the modern way we go to war is even more complex and deceptive. We must also write language that satisfies the UN and all our allies. Congress gladly transfers the legislative prerogatives to declare war to the President, and the legislative and the executive branch both acquiesce in transferring our sovereign rights to the UN, an un-elected international government. No wonder the language of the resolution grows in length and incorporates justification for starting this war by citing UN Resolutions.

    In order to get more of what we want from the United Nations, we rejoined UNESCO, which Ronald Reagan had bravely gotten us out of, and promised millions of dollars of U.S. taxpayer support to run this international agency started by Sir Julian Huxley. In addition, we read of promises by our administration that once we control Iraqi oil, it will be available for allies like France and Russia, who have been reluctant to join our efforts.

    What a difference from the days when a declaration of war was clean and precise and accomplished by a responsible Congress and an informed people!

    A great irony of all this is that the United Nations Charter doesn’t permit declaring war, especially against a nation that has been in a state of peace for 12 years. The UN can only declare peace. Remember, it wasn’t a war in Korea; it was only a police action to bring about peace. But at least in Korea and Vietnam there was fighting going on, so it was a bit easier to stretch the language than it is today regarding Iraq. Since Iraq doesn’t even have an Air Force or a Navy, is incapable of waging a war, and remains defenseless against the overwhelming powers of the United States and the British, it’s difficult to claim that we’re going into Iraq to restore peace.

    History will eventually show that if we launch this attack the real victims will be the innocent Iraqi civilians who despise Saddam Hussein and are terrified of the coming bombs that will destroy their cities.

    The greatest beneficiaries of the attack may well be Osama bin Ladin and the al Qaeda. Some in the media have already suggested that the al Qaeda may be encouraging the whole event. Unintended consequences will occur – what will come from this attack is still entirely unknown.

    It’s a well-known fact that the al Qaeda are not allies of Saddam Hussein and despise the secularization and partial westernization of Iraqi culture. They would welcome the chaos that’s about to come. This will give them a chance to influence post-Saddam Hussein Iraq. The attack, many believe, will confirm to the Arab world that indeed the Christian West has once again attacked the Muslim East, providing radical fundamentalists a tremendous boost for recruitment.

    An up or down vote on declaring war against Iraq would not pass the Congress, and the President has no intention of asking for it. This is unfortunate, because if the process were carried out in a constitutional fashion, the American people and the U.S. Congress would vote "No" on assuming responsibility for this war.

    Transferring authority to wage war, calling it permission to use force to fight for peace in order to satisfy the UN Charter, which replaces the Article I, Section 8 war power provision, is about as close to 1984 "newspeak" that we will ever get in the real world.

    Not only is it sad that we have gone so far astray from our Constitution, but it’s also dangerous for world peace and threatens our liberties here at home.
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  6. #6
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    Re: An illegal War???

    Well, not the the thread has been sidetracked.... in less than one hour, I assume the idea that a war can be declared illegal is a non-issue. The President has no power to declare war. Congress authorized, though, the President's use of force in Iraq. This is also covered in Section 1, Article 8. Whether we wish to call it a war or whether it is an actual, declared war is really a matter of semantics at this point. The use of force was authorized. The President, in using the authorized force, acted in a legal manner.

    I would also like to call attention to an important point brought into the debate by Mr. Browning. He noted the convention of international law when he stated,
    but I have seen zero support from actual international law.
    This is, however, a non-sequitor. Breaking international conventions, what is commonly considered law, is not law in the sense of a recognized pact between the people and its governing representative. If you wish to claim international convention has equivalency to law, please explain which branch of law it would fall under. The U.S. does not observe the international courts, as such no legislation could be passed through a recognized judiciary. The legislators themselves are unelected, hence no different than dictators. Are laws created by dictators considered valid? As such, breaking international "law" is not equivalent to committing an illegal act.
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  7. #7
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    Re: An illegal War???

    Quote Originally Posted by Ibelsd View Post
    Well, not the the thread has been sidetracked.... in less than one hour, I assume the idea that a war can be declared illegal is a non-issue. The President has no power to declare war. Congress authorized, though, the President's use of force in Iraq. This is also covered in Section 1, Article 8. Whether we wish to call it a war or whether it is an actual, declared war is really a matter of semantics at this point. The use of force was authorized. The President, in using the authorized force, acted in a legal manner.
    No because I don't think you understand that Congress DOES NOT have the power to authorize the President to use force. This power is not enumerated in the Constitution. Read what Ron Paul has to say. You will see the reason why they do this is because they know that no one would support a declaration of war...so they circumvent the Constitution, i.e. do something illegal, to further their own agenda.

    I mean come on.
    I would also like to call attention to an important point brought into the debate by Mr. Browning. He noted the convention of international law when he stated,


    This is, however, a non-sequitor. Breaking international conventions, what is commonly considered law, is not law in the sense of a recognized pact between the people and its governing representative. If you wish to claim international convention has equivalency to law, please explain which branch of law it would fall under. The U.S. does not observe the international courts, as such no legislation could be passed through a recognized judiciary. The legislators themselves are unelected, hence no different than dictators. Are laws created by dictators considered valid? As such, breaking international "law" is not equivalent to committing an illegal act.
    With respect to international law...and theories of jus bello (just war), I would point you to the late Spanish Scholastics...like Fransisco Vittoria and Suarez (even Grotius) for their views on international law and lex naturalis. That is all very fascinating stuff...and easy to read too.
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  8. #8
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    Re: An illegal War???

    Gonzo, the most you could claim would be that the conflict in Iraq was just a conflict and not a war, and thus, it is incorrectly referred to as a war. That would be the only wrong-doing here (the justness or lack therefore notwithstanding).

    It has not been shown that the conflict, military action, use of force, war, or whatever else one chooses to call it, is illegal, and it being illegal is what many protesters of the conflict claim. They are wrong. It isn't that it is illegal, it is merely that 1) it is not officially a "war" and 2) it is subjectively unjust.
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  9. #9
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    Re: An illegal War???

    Quote Originally Posted by Apokalupsis View Post
    Gonzo, the most you could claim would be that the conflict in Iraq was just a conflict and not a war, and thus, it is incorrectly referred to as a war. That would be the only wrong-doing here (the justness or lack therefore notwithstanding).

    It has not been shown that the conflict, military action, use of force, war, or whatever else one chooses to call it, is illegal, and it being illegal is what many protesters of the conflict claim. They are wrong. It isn't that it is illegal, it is merely that 1) it is not officially a "war" and 2) it is subjectively unjust.
    No but the point is that the Constitution does not give Congress the power to do anything but declare war.

    I am not doubting that they can circumvent a declaration of war...I am merely saying that it is unconstitutional to do so.

    It is illegal because it is unconstitutional.

    It does not say in the constitution that Congress has the power to authorize the President to use force...

    ...or if it does it was written in invisible ink on the back.

    Please Apok...let's not make this into a big to do...

    ...every war since WW2 has been illegal an unconstitutional...

    ...which isn't to say that they aren't just (which they aren't), merely that they are illegal.

    I know many conservatives who support the war, but recognize that it is unconstitutional and technically illegal.

    Helping slaves was illegal, technically, yet there was nothing wrong with it.

    The war in Iraq is illegal. Period. End of story.
    "If you wish to know how libertarians regard the State and any of its acts, simply think of the State as a criminal band, and all of the libertarian attitudes will logically fall into place." -Murray Rothbard

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  10. #10
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    Re: An illegal War???

    Let's look at the relevant aspect of the Constitution, Section 1 Article 8

    To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

    To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

    To provide and maintain a navy;

    To make rules for the government and regulation of the land and naval forces;

    To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

    To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
    I suppose Iraq could be considered as making rules concerning capture of land and water. Most likely, though, Congress enacted under the condition, "grant letters of marque and reprisal." Really, the Constitution offers very little constraint upon Congress' ability to utilize military force. Again, one can very well be against a war, such as Iraq, without feeling the need to declare it illegal. In fact, there is very little basis for attempting to do so.

    Read what Ron Paul has to say. You will see the reason why they do this is because they know that no one would support a declaration of war
    Not knowing what Ron had to say on the matter, I think you have confused this for some sort of propaganda site. It is a debate site. I make an argument and you counter with your own logical rebuttal. Simply saying, "hey, check out Mr. Blowhard's comments on the matter" is not a rebuttal. If YOU feel you can offer a logical rebuttal regarding Congress' authority to utilize military action, go for it.
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  11. #11
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    Re: An illegal War???

    Well except it's not Mr. Blowhard...it's Mr. Congressman to you.

    I mean I could just say...

    ...debate me...don't cite some stupid blowhard document like the Constitution.


    The reason I use Ron Paul is BECAUSE HE IS A CONGRESSMAN.

    We are debating the legality of the war in Iraq...

    ...who better to comment on it than...ermmm....you know...a legislator...who actually knows about the Constitution.

    But I'm sure you didn't even bother to read my post.
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  12. #12
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    Re: An illegal War???

    Gonzo, the problem is, other Congressman disagree with him. We use sources like that to SUPPORT our arguments...not AS our arguments.

    Ibelsd makes a more compelling case IMO. This doesn't mean that he's right, just that he has the better argument as his argument, wasn't someone else's complete position on the matter.
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  13. #13
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    Re: An illegal War???

    Apok got the point. Gonzo, you tend to make a statement and then follow it up with, read so and such. That's great, but I am on my own reading schedule. So, your approach ends up falling flat. If Paul has a particular quote or position relevant to your point, and Paul has some particular expertise on the matter, then share it. The primary argument, though, should be your own. Not vice-versa.
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  14. #14
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    Re: An illegal War???

    If a war was carried out based on lies, incompetence, deception or any variation or combination of these, resulting in the deaths of something like 250,000 people, does it matter if it was legal or not ?

    Or how about, if the us is directly or indirectly responsible for 650,000 deaths, but the war is legal, does it matter how many died ?

  15. #15
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    Re: An illegal War???

    Fantastic Ibelsd talks about letters of (marque) and reprisal...which haven't been used since the Spanish-American War...and have never ever been cited as a reason for war...

    Then he talks a little about Congress's power to govern lands that we captured during war...but nothing about declaring war.

    Finally...

    the kicker...

    He says
    Really, the Constitution offers very little constraint upon Congress' ability to utilize military force.
    Okay from this...I really have lost faith in you as a Constitutional historian.

    The Constitution gives Congress the power to do certain things...and only those things. That is the nature of our government. The founders did not write a document that said all the things a government couldn't do, but rather listed the things they could do. This was because they knew that in the future there were things that they couldn't possibly anticipate. This is one of the first things that people learn when the read up on the Constitution. Jefferson writes of the Constitution as restraining tyrants...not giving them rights.

    My first post was cogent, and correct...Apok and you didn't bother responding to my arguments...but attacked my use of Ron Paul as support. At least Snoop thought it was good.


    Actually...its pointless...I concede this debate...you guys win...

    The below text has been automerged with this post.

    Quote Originally Posted by Apokalupsis View Post

    Ibelsd makes a more compelling case IMO. This doesn't mean that he's right, just that he has the better argument as his argument, wasn't someone else's complete position on the matter.
    Don't insult me...we both know that I make a more compelling argument, anyone can see that. He tries to use clauses of the Constitution that have NOTHING to do with war...I mean they have never even been cited.
    Last edited by Dr. Gonzo; October 26th, 2006 at 03:03 PM. Reason: Automerged Doublepost
    "If you wish to know how libertarians regard the State and any of its acts, simply think of the State as a criminal band, and all of the libertarian attitudes will logically fall into place." -Murray Rothbard

    "There are a thousand hacking at the branches of evil to one who is striking at the root." -Henry David Thoreau

  16. #16
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    Re: An illegal War???

    Quote Originally Posted by Dr. Gonzo View Post
    My first post was cogent, and correct...Apok and you didn't bother responding to my arguments...but attacked my use of Ron Paul as support. At least Snoop thought it was good.


    Actually...its pointless...I concede this debate...you guys win...
    Does that mean I lose?
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  17. #17
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    Re: An illegal War???

    Quote Originally Posted by Dr. Gonzo View Post
    Don't insult me...we both know that I make a more compelling argument, anyone can see that.
    1) I never, ever insulted you Gonzo. That is a false charge. I merely said that Ibelsd presented an argument, an argument which was more compelling because all you did, was provide someone else's article as your OWN argument. See site rules on "link warz". We want original arguments here, not someone else's then the insistence that their argument mus be refuted.

    2) Where was your argument exactly? I didn't read the entire article because I was interested in the argumentation, not someone else's. I want yours. Did yours get shuffled in there somewhere? If so, I missed it. Can you copy/paste just your argument?

    He tries to use clauses of the Constitution that have NOTHING to do with war...I mean they have never even been cited.
    Can you make an argument for this? I mean, you are claiming it is the case, but is merely claiming it proving it?
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  18. #18
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    Re: An illegal War???

    I don't think he even understands the rationale for letters or marque and reprisal.

    The below text has been automerged with this post.

    See the other thread I created.
    Last edited by Dr. Gonzo; October 26th, 2006 at 03:24 PM. Reason: Automerged Doublepost
    "If you wish to know how libertarians regard the State and any of its acts, simply think of the State as a criminal band, and all of the libertarian attitudes will logically fall into place." -Murray Rothbard

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  19. #19
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    Re: An illegal War???

    Quote Originally Posted by Dr. Gonzo View Post
    I don't think he even understands the rationale for letters or marque and reprisal.
    Could be. I don't know. I'm not arguing for or against the legality of it, I'm merely objecting to the idea of using an external source as an argument.

    See the other thread I created.
    Done.
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  20. #20
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    Re: An illegal War???

    Quote Originally Posted by Apokalupsis View Post
    The lack of justification for a war alone, is not sufficient to declare the war illegal, it is only sufficient enough to call it unjust.
    Kind of depends by what rules those who wage war decide to go by and just who wins. There are laws and then there are other laws, there is justice and then there are other ideas of just what constitutes this. We humans tend to be quirky that way.
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