Monday, February 01, 2010

War Powers


(fm the BC thread "The No-Fire Zone")

Subotai Bahadur,
Concur with your excellent survey of the War Power with a few addenda.
The War power has both international and domestic ramifications. War and Peace are contractual relations between nation states, like marriage is in personal domestic relationships. A Declaration by Congress recognizing that a State of War exists has both international and domestic effects. Internationally these include authorizing the use of force, warning other nations that a State of Belligerency exists, triggering certain provisions in the Geneva Conventions or other treaties and voiding almost all contracts and treaties between the two parties. Domestically there are provisions in the US Code, such as the Trading With the Enemy Act and clauses within military regulations including the UCMJ, that only come into force under very specific circumstances, that have not been held to exist since 1946.

Alexis was correct in noting that the resolution Authorizing Use of Military Force in 2003 did not have these domestic effects. Senator Byrd pressed for an old fashioned Declaration of War but found little support on either side of the aisle. The War Powers Act, which is a separate topic from the 2003 resolution, is a bad law from a bad time.

The position of the Europeans and the Democratic Party Left that the United Nations has superseded the legality of any State of War separate from that authorized under Chapter V of the UN Charter is ridiculous on its face. That position is reflected in the often unreliable wiki, which should nevertheless be reviewed albeit with caution. The powers to make a binding treaty and declare war or peace are attributes of sovereignty. The UN is a creature subordinate to the Powers that created it. That is why the veto exists. The position of the French and British in the Security Council however is unclear following their submission to the newly sovereign EU. The British have renounced their right to use force absent the approval of a higher authority. That probably renders the Nato Treaty void.

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