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Impending Constitutional Crisis:
The Rush to War
by Richard Falk
27 August 2002
Transnational Foundation for Peace and Future Research
Visiting Distinguished Professor, Global Studies, University of California, Santa Barbara
and Milbank Professor of International Law Emeritus, Princeton University
TFF associate

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?

Copyright © 2002 TFF
Copyright © 2002 Richard Falk
Reprinted for Fair Use Only.

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