OPINION:
This weekend, some apologists for President Trump’s attacks on Iran argued that because the plans called for a quick strike, the attacks do not constitute a war. George Orwell is vindicated yet again.
These apologists believe that calling a war something else means it is not a war, and so moral and constitutional justifications are unnecessary.
No rational observer looking at 2,000-pound bombs being dropped onto military targets and thousands of missiles being fired indiscriminately at civilians and military personnel in Iran can conclude that these events constitute anything but a war. That recognition triggers a series of analyses — moral, constitutional and legal.
The moral dimension addresses both the causes and the conduct of war.
The standard requirements for a just war are that war is a last resort to avoid truly imminent violence or profound, massive injustice. It must be triggered by a legitimate authority, its purpose must be clear and just, and the damage it produces must not outweigh the evil it purports to eliminate.
Its conduct must avoid killing noncombatants, and the weapons and tactics used must be proportionate to the war’s objectives.
Just war, of course, prohibits the employment of any weapons that fail to discriminate between combatants and noncombatants. Mr. Trump’s war in Iran fails all these. It was not commenced by a legitimate authority, as Congress has not declared war on Iran. The president and his folks have not identified any imminent violence Iran was about to inflict upon the U.S.
They have confused the public about the war’s purpose. Is it to force out the current Iranian government or to destroy its offensive weaponry and nuclear capabilities or, the newest condition, to eliminate its navy?
None of these is a just cause, as the U.S. has no moral or legal basis for removing a foreign government or emasculating it in the face of its enemies. As for damage, we have seen already the killing of 150 little girls while at a school this weekend and the attacks on a Tehran hospital.
The failure of Mr. Trump’s war to comply even minimally with moral standards is also exemplified by the constitutional implications raised by a presidentially initiated war. When James Madison and his colleagues were addressing the war clauses in the Constitution, they were in easy agreement that if the president could declare war and wage war, then he wouldn’t be a president; he would be a prince.
Hence, the textual separation in the Constitution of warmaking from war-waging. Only Congress can declare war, and only the president can wage war. This is the power to initiate war, not to ratify it after the president has initiated it. The president can request a declaration of war from Congress, but the decision to start one is textually confined solely to Congress.
If we get into the business of congressional ratification of presidentially initiated wars, then we will continue the slow and inexorable normalization of presidential force. That’s not what the Constitution requires.
This is not a rhetorical or theoretical argument. We live in a supposed constitutional republic. The Constitution is supposed to be the supreme law of the land. It is the sole source of power and authority for Congress, the president and the federal courts. If it can be violated or ignored in a matter as grave as that which results in the industrialized deaths of foreign people at American hands and similar deaths of Americans at foreign hands, then it is of little value as the creator and restrainer of the federal government.
Even the 1973 War Powers Resolution, which requires reporting to Congress within 48 hours of the onset of presidentially initiated military hostilities, contemplates the use of the military when a threat to the U.S. is imminent. This raises two issues.
First, the administration has not articulated with credibility any imminent threat. The secretary of defense has said, at best, that Iran has ambitions to attack the U.S. one day. That is hardly an imminent threat. An imminent threat must articulate a rational basis rooted in immediacy and grounded in the emergent need to protect U.S. national security. It cannot be speculative.
Second, the statute requires that the president report in writing the reasons for war to the full Congress so it can approve or disapprove. Mr. Trump sent a political diatribe to Congress with no articulation of immediacy, but he did so only after he had his secretary of state report in secret on immediacy to the Gang of Eight, the congressional and intelligence committees’ leadership from both parties.
The Gang of Eight is not Congress. Because these reports were made in secret, the eight recipients cannot inform their congressional colleagues or the media or their constituents. What kind of representative government is that? What did the secretary of state tell these eight members of Congress?
What’s going on here?
What’s going on is an immoral, unconstitutional and illegal war of choice. It violates the Geneva Conventions and the United Nations Charter, all treaties that the U.S. wrote and the U.S. Senate ratified. The former requires conformity to just war principles and prohibits killing little girls and hospital patients. The latter prohibits war between member states unless to avoid imminent violence or with the consent of the U.N. Security Council. Under the Constitution, treaties are the law of the land.
These are dangerous times, and this is a dangerous war for the moral order, for constitutional government and for personal freedom. If the president can get away with killing people abroad under a scheme that meets no accepted moral or legal standards and violates the plain language of the Constitution, then what can he get away with at home?
We might find out. The problem with going abroad searching for monsters who have ambitions to harm you is that they have a way of following you home.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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