Technically, isn't pre-emptive war

[mmonk]

against the constitution? Or not? I thought it was considered a crime against peace. Does that make it a war crime?

[Fresh_Start]

1. According to Nuremberg

its the worst of all war crimes since it precipitates all the other crimes.

[TheBaldyMan]

8. I agree crimes against peace are much worse than war crimes.

Google or Wiki the Geneva Conventions, the crimes against peace are what those senior Nazis were hanged for. The war crimes were very serious but starting a war of aggression was worse.

I think this is where my and Wes Clark's opinions really diverge. He thinks that the war in Iraq is legal. I am of the considered opinion that it was always illegal from the the start, it continues to be an illegal occupation. Most legal systems don't acknowlege retrospective legislation so even if Congress and the UN rubber-stamped the invasion after the fact doesn't make it legal.

This distinction is needed to prevent an agressor invading a country, setting up a puppet regime then the puppet government 'invite' the aggressors to stay as protectors. This is precisely what happened in Iraq with the current administration.

The legal hokum dreamed up by the ubiquitous neo-con reptiles in the Bush entourage is cut from the same cloth as the Chimperor's new clothes. Their wishful thinking also gave us 'we will be welcomed as liberators', 'the war will pay for itself', 'Mission Accomplished' and more ominously, 'It can work just as well in Iran'.

The American Enterprise Institute also holds the patent on the Chocolate coffee pot.

[Warren Stupidity]

12. illegal perhaps unconstitutional? nope.

I agree that we broke all sorts of treaty obligations. If those treaties were in force then the cabal has broken the law, but they did not hterefore violate the constitution. Instead they have committed high crimes and misdemeanors and should be tossed out of office, inidicted for war crimes, tried, convicted and put in prison for the rest of their natural lives.

[unpossibles]

15. but I thought we considered treaties to be equal legally?

in other words, treaties which we have signed and ratified such as the Geneva Conventions are considered as legally binding as the Constitution, right?

I may be misunderstanding this though.

http://www.asil.org/insights/insigh10.htm

[Warren Stupidity]

20. as legally binding as a law.

The same status as a law, a lesser status to the constitution. A treaty, for example, cannot abolish a section of the constitution.

[unpossibles]

21. makes sense. thanks. My brain is not working this week any way.

and I have not saved up any daylight yet either.

[TheBaldyMan]

16. unpossibles has it right, the US constitution explicitly states

that all treaties have the full weight of US law therefore braking a treaty is not only unlawful it is contrary to the constitution itself.

That is the primary reason Bush refused to sign up to Kyoto or the ICC, this is very puzzling as the ICC set-up was nfluenced in large part by the US during the Clinton administration. The ICC wouldn't have even got off the drawing board if it hadn't been for US support.

All that was pre-9/11 and was the Dumbya rationale behind not signing up.

[Warren Stupidity]

18. Breaking: unlawful, but abolition can be done with the stroke of a pen.

I am not arguing your point - breaking a ratified treaty is a violation of the law and an impeachable offense. I agree with you. I am noting that it is not unconstitutional, merely illegal, two different things. I also note that abolition of treaties can and has been accomplished by executive order.

[TheBaldyMan]

23. Bush didn't abolish the treaty - he ignored then broke it,

Without prejudice, what in your opinion on the difference between unconstitutional and unlawful.

I'm asking because you make that distinction whereas I would say that the two are the same.

[Warren Stupidity]

25. The two are not the same.

If Bush breaks a law, if for example he kills Karl Rove, he can be impeached, convicted of an impeachable offense, removed from office, indicted, convicted of murder, and jailed.

If Bush instead violates the constitution without breaking a law, he can still be impeached, convicted of an impeachable offense, and removed from office. Having broken no law, the process would stop right there. Violating the constitution is not against the law, it is simply unconstitutional.

More to the point: theoretically the supreme court could rule that an act by the executive was unconstitutional and could order the executive to stop acting in this way. For example the Iraq War appropriations bill could fail to pass in the house, leading to a situation where the executive did not have any funds to continue its war. Bush could simply transfer money from other accounts to pay for the war. Some person with standing could end up in court arguing that such an extraordinary appropriation of funds by the executive was unconstitutional, and if by some miracle the supreme court agreed and ordered Bush to cease his actions we would have a massive constituional crisis, but not at that point a legal one. No laws would have been violated, but the mechanics of the enforcement of the separation of powers would be put to the test.

[TheBaldyMan]

27. thanks for the clarification WS, one more question...

What is the status of a treaty that has been ratified by Congress? Doesn't that give a treaty the status equal to a domestic law?

It seems strange that, for instance, the accord on torture wouldn't be legally binding and treated as a crime in it's own right rather than as an assault. Surely there are some international treaties that have been given that equal status without further legislation.

[Warren Stupidity]

29. See my other post.

The GC were actually binding, but not until the 1996 War Crimes Act. That law put the actions of the Bush administration into serious legal jeopardy until congress pathetically aggreed to the Military Commissions Act of 2006, which gave the cabal immunity for anything illegal they might have done since 2001. So to answer your question, without specific legal penalties, a treaty is just an agreement between nations. It took the 1996 War Crimes Act to make violating the GC carry legal consequences.

[LynnTheDem]

19. "The supreme crime"

What Hitler's regime was charged with.

[Kagemusha]

2. The terminology is: pre-emptive is vs. imminent threat, preventive is not.

Preventive is war against a non imminent threat (while acknowledging a distant future threat).

Preventive war is not against the Constitution if it is declared by Congress; it is considered a war crime in that it is indistinguishable from aggressive warmaking except for the words out of the mouth of the leader responsible. War is viewed as a last resort, not a first resort, which is what preventive war turns war into.

[mmonk]

4. One neither pre-empts war with war nor prevents war with war.

The words and meaning are virtually the same. Since congress now says bush doesn't have to come before them to start a war with Iran, does this get them around their responsibility?

[Kagemusha]

7. I'm not trying to play word games here...

Pre-emptive is not "virtually the same". It means acting before an imminent hostile action by one's enemy... like, if Iran was launching an amphibious invasion of the continental United States, which is, of course, a ridiculous proposition. So, we're back to the language of the War Powers Act, which would force Bush to come to Congress some 90 days after "conflict" begins with Iran to explain why the US had to act and couldn't wait for a declaration of war. Bush can either try to ignore that act by saying it's unconstitutional or send his minions to give self-serving, convenient, mealy-mouthed answers to state the President's opinion that conflict was quite necessary and that it would have been wrong and unpatriotic to not start bombing.

And if it is the opinion of foreigners that the conflict was aggressive unprovoked warfare, the President has a variety of responses that he could give to those opinions, such as:

"Bite me."

or

"Just try and sue me. Heh, heh, heh."

So long as the President dresses the matter up in "defending" the United States, it's difficult for Congress, particularly given the generous provisions of the War Powers Act (well, generous to a 90 day bombing and missiling campaign against a third world country at least), to either legally prevent, or legally be responsible, for such actions. Moral responsibility can be quite a different story, of course.

[mmonk]

10. I understand imminent but we all know such a threat from Iran isn't.

Usually, intelligence gathering (meaning legitimate vs. the bogus kind for Iraq) seldom provides such clear indications of imminence unless it is in plain site. We know Iran unequivocally does not have the means to be a nuclear danger at present but they do have the means to really screw us up and damage us if we attack.

[baldguy]

3. The United States is a signatory to the United Nations Charter.

Chapter 1, Article 2:

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

http://www.un.org/aboutun/charter/

[mmonk]

6. Thus unconstitutional.

Very good. Contact your congress critters and tell them to adhere to the law.

[Warren Stupidity]

11. No: thus perhaps illegal.

Treaties have the same status as law, not the same status as constitution.

If you really want to know how muddy this is, while treaties have the status of law, there is presidence for treaties being abolished simply by presidential signing statement. Thus Bushg declaring that the GC no longer apply might in fact mean that the GC no longer have the status of law. Ain't that something?

[mmonk]

13. But I thought it was the constitution that binds treaties as law.

Oh well, not even law if he does a signing statement then huh? That bites.

[Warren Stupidity]

17. It is an oddity.

The constitution establishes the mechanism for treaty ratification by congress and declares that once ratified they are the sames status as law, but is silent on how a treaty is 'unratified'. In practice presidents simply issue an executive order abolishing treaties in whole or part. Whether this has happened with the GC is a good question. In addition, passing a law that contradicts treaty obligations probably does just that: abolishes the conflicting obligation.

[TheBaldyMan]

24. Bush didn't hesitate to remind Iraqis to observe the GC for captured Americans in the opening stage

of the invasion, he didn't sound like someone who had withdrawn from those accords in particular.

[Warren Stupidity]

26. The Military Commissions Act

"The adoption of the Military Commissions Act of 2006, by rewriting the War Crimes Act, appears to immunize the Bush administration and others against possible legal challenges regarding war crimes,<6> and by abolishing habeas corpus it effectively makes it impossible for detainees to challenge crimes committed against them.<7> Any investigation into possible wrongdoing in the War on Terror seems unlikely within United states and therefore the Center for Constitutional Rights and the International Federation for Human Rights have started legal proceedings in Germany, invoking universal jurisdiction.<8>"
http://en.wikipedia.org/wiki/War_Crimes_Act_of_1996

Ain't that special?

[TheBaldyMan]

28. I think that is a classic case of ultra vires.

There is an awful lot of wishful thinking in the current administration about where the executive power stops. There is a limit to presidential power in the US system, your entire constitutional system depends on that.

Claims by Bush, Cheney and Gonzales about what the President can do constitutionally is way over the line of legality. Unfortunately the SCOTUS and Congress have been less than keen to rein them in on this point.

To be honest that is why you have that triumvirate form of government and written constitution, precisely to stop abuse of power. All three branches have to do their job to avoid the current unhappy situation.

[Cleita]

5. Don't be silly.

Gonzo probably already has determined that the Constitution is a quaint document that can be ignored.

[Warren Stupidity]

9. Not the constitution: it makes no such distinction.

It simply says that congress gets to declare war and set the rules while the presidunce gets to fuck everything up.

Treaty obligations are considererd the law of the land - by the constitution. Thus treaty obligations that make wars of aggression criminal are a big problem for the criminal cabal in the white house, as are treaty obligations that make torture, killing civilians, destroying civilian infrastructure, etc. war crimes.

[SoCalDem]

14. Technically a pre-emptive war is an invasion

Until someone actually attacks you, how do you "know" they would really attack?

Did ANYONE in the US think that Iraq was going to "attack" us?

[WinkyDink]

22. "What Would Hitler Do?"

Oh, that's right: INVADE. OCCUPY. KILL.