I thought I enter my two cents into the fray.
I’ll admit I don’t know why Mike is talking about the United Nations or even why the United Nations is relevant in a discussion about whether it was legal for the United States to invade Iraq the second time. In our Constitution, Article I, Section 8 grants to Congress the power to declare war. Congress never declared war. Of course, it is not as simple as that – there is this War Powers Act of 1973 which authorizes the president to introduce the armed forces into battle without a declaration of war.
The Act declares, “Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”
So there is the answer. Congress authorized use of the United States Armed Forces and therefore the war in Iraq is legal. I don’t think anyone is really arguing otherwise. Just because an act is legal, however, does not make it just. Bill’s argument appears to be that the invasion of Iraq for the purpose of regime change is justified because Saddam Hussein was a bad guy. Specifically, he writes, “Saddam was a sadistic tyrant. The only way to prevent him from killing more of his own people and others in the region was to depose him.” This statement presumes that it is the role of the United States to intervene in the affairs of other countries when we determine that their leaders are acting tyrannically. I find this assumption dubious and dangerous. I would hope that some more immediate threat to the United States itself would be required before our sons are sent into battle.
There are seven requirements that must be met in order to declare the initiation of armed conflict just: 1) the cause must be just; 2) it must overcome the presumption against war by establishing that the injustice suffered by one party is greatly outweighed by the other; 3) it must be initiated by a competent authority; 4) it must have a right intention; 5) there must be a probability of success; 6) it must be the last resort; and 7) the resulting war must be proportionate to the evils avoided.
I would start by establishing the competent authority – in this case the United States is a competent authority to initiate a war. Indeed, any nation is competent to make that determination. Moreover, by declaring the United States the competent authority we have named one of the parties. The other party is more problematic. Was it the nation of Iraq? Was it the Hussein government? Was it Hussein himself? Bill is forced by his formulation to answer that the other party is Saddam Hussein himself because the evil to be dealt with is his tyranny. Indeed, Bill’s prescription of a surgical strike or an assassin’s bullet removes any doubt on this score. If the U.S. is one party and Saddam is the other, how could we ever establish that the United States has suffered injustice far greater than Saddam Hussein (or said the other way around, how could a single man inflict a greater injustice on an entire nation than the other way around)? What injustice, specifically, could the United States be said to have suffered?
Bill, would of course, attempt to replace the United States as the aggrieved party with that of the Iraqi people. And if it were the Revolutionary Guard who had instituted these hostilities, I would be in lockstep with him. But it was not. The United States Armed Forces are not commanded by, beholden to, or in any way related to the Iraqi people and the dissipation of the assets of the U.S. military (our boys, chiefly) in service to a completely unrelated problem is unjust on its own terms. How does one offer to the parents of a slain American serviceman, the assurance that their son lightened an injustice suffered by his neighbors when he hasn’t done anything of the sort? The true injustice has been done to the soldiers and their parents and their communities. And the injustice done to the parents and communities of those slain finds no answering solace in justice done unless it be solely in altruism.
I am going to skip the justness of the cause and the right intention so as to finish with them. With regard to the probability of success, there was little doubt about the outcome of the war. It was a simple matter of will and effort. Bill himself points out at least two other options that were never tried prior to committing to war (focused attacks designed to eliminate Hussein and assassination). By Bill’s own terms, he cannot maintain that war was a last resort. To the extent that one might argue that assassination of foreign leaders is illegal, I would point out that invading a foreign country for the purpose of deposing its leader is of questionable legality. The argument begs the question. If we are substituting one illegal act for another, there is little reason to rule out either unless one is grossly disproportionate…which, come to think of it, the full-scale invasion of a country by thousands of troops for the purpose of removing one person from office might. just. be.
On the proportionality question not only did war constitute the least proportional response to the threat of Saddam Hussein’s continued reign, it was not responsive to the evils suffered by the United States. (We’re back to the problem that aggrieved party must be viewed as the United States and the evils suffered are difficult to identify in that case). Essentially, I would argue that war was not even responsive to the evils because the United States largely suffered only injury to its pride in that Hussein refused to obey commands made upon him by the United States through the United Nations.
The question of right intention is difficult. The opponents of the war contended it was about oil and there is some merit to this attack. American and British companies directly benefited from the invasion, but the American people saw little benefit. In fact, measured at the American gas pump, there has been an inexorable rise in gas prices ever since the invasion, which makes it hard to argue that America invaded Iraq for its oil. Moreover, there is the problem that the Bush administration knowingly used falsified reports that Hussein was seeking uranium to allege that he was stockpiling weapons of mass destruction. If the United States had the proper intentions in invading Iraq, this blatant falsehood told on the world stage is entirely unexplainable. Whatever else it does, it proves bad motive behind the invasion – the United States cooked up a pretext in order to invade.
So, was the cause just? It’s hard to say. If the cause was to free the Iraqi people from tyranny, then clearly this is a just and laudable cause. Although the wisdom of whether that could be accomplished through war and by foisting upon another people Democratic Capitalism is dubious, one cannot argue with the intention. But, this is if you believe that that was in fact the intention or if it was merely the window dressing used to get American parents to pack their sons off to battle. In the end, the fact that the U.S. concocted a pretense to justify the invasion casts serious doubt on the justness of the cause. Regardless, even if one were to grant the benefit of the doubt and declare the cause just, the war in Iraq did not meet several of the requirements for a just war. So while the war might have been legal, it was not just.