The Presidential War Path

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war-peace matters, presidential rule has virtually replaced the
rule of law in America. No signs of change appear: Senator Kerry
and President Bush agree that a president may launch preemptive
attacks, use nuclear weapons, terminate treaties, and initiate wars.

answered a questionnaire from the
War and Law League
and the San Francisco Examiner. (Ten
candidates were queried. Five responded.)

questions: "1. Do you believe that what has been called preventive
war or preemptive war is lawful? … 2. Do you believe that a president
can lawfully use nuclear weapons? … 3. Do you believe that a president
has the constitutional authority to terminate or withdraw from a
treaty on his own?" Kerry answered "Yes" to
all three (12-23-03).

you initiate war without Congress's approval? A president may "act
quickly without consulting Congress or receiving express Congressional
approval" in emergencies or "to defend U.S. national interests,"
Kerry wrote.

the U.S. wars in Yugoslavia, Afghanistan, and Iraq (2003–)
been lawful? Kerry answered "Yes" to all.

War Power

Clinton attacked Yugoslavia in 1999 without Congress's OK. In September
2001 Congress let Bush fight whoever he determined aided 9-11 or
harbored the culprits; its resolution did not even mention Afghanistan.
And in October 2002 Congress let Bush decide whether to attack Iraq.
Kerry cast two "aye" votes.

founders' writings establish that "Congress alone is constitutionally
invested with the power of changing our condition from peace to
war" (Jefferson, 1805). Yet since Truman's 1950 Korean intervention,
presidents have usurped the power and millions have died, including
114,000 Americans.

Kerry change things? "If I am President, I will be prepared
to use military force to protect our security, our people, and our
vital interests…. I will not hesitate to order direct military
action…" (UCLA, 2-27-04). He would launch a preemptive attack,
given adequate intelligence of a terrorist threat, and would let
no country or institution – presumably the United Nations – "veto
what we need to do" (to news media, 7-16-04).

promising only to wage war "because we have to" (Boston,
7-29-04), Kerry reaffirms his 2002 war vote (8-9-04), even though
Bush's reason for war has proved false. Kerry sees a "solemn
obligation to complete the mission" (2-27-04). But what is
the mission and when will it end?


attacked Iraq in March 2003, supposedly to eliminate "weapons
of mass destruction." There were none. In the 2000 report by
Project for the New American Century, Bush associates openly marked
Iraq for conquest as part of a U.S. empire.

aggression violates U.S. treaties, including the UN Charter (1945)
and the Kellogg-Briand Pact, renouncing war as an instrument of
national policy (1928), which Nazi war criminals were charged with
breaching. Richard Perle, as a Bush defense adviser, admitted the
invasion of Iraq was illegal but favored it anyway (Guardian, UK,

2002 Bush ordered plans for nuclear attacks on seven nations, four
of them nonnuclear. Now he wants new types of nukes. Yet under
the Nuclear Nonproliferation Treaty, the U.S. pledges not to
A-bomb nations lacking the bomb and pledges to work toward eliminating
nuclear weapons. Using them would violate international law, UN's
World Court declared (1996). And Bush withdrew from the ABM Limitation
Treaty, without consulting Congress (2002).

told an interviewer, "I don't know what you're talking about
by international law – I better consult my lawyer" (CNN 12-11-03).
Let's hope he has found out since the revelation of widespread violations
of the Geneva Convention on treatment of war prisoners and the UN
Convention Against Torture, U.S. treaties since 1950 and 1994 respectively.

Are Laws

U.S., as Bush says, stands for the rule of law. This does not stop
at the waterfront. The Constitution's Article 6 makes treaties federal
laws. U.S. law forbids any citizen or serviceman to commit any war
crime, i.e., any grave violation of the Geneva Conventions (1949)
or The Hague Conventions (1907). The U.S. Army Field Manual incorporates
those treaties.

prohibits attacking or bombarding communities or undefended buildings.
Yet the latest war has killed up to 13,802 civilians – mostly by
U.S. bombardment of Iraqi communities – London's
conservatively estimates (9-9-04).

Nuremberg war crimes tribunal condemned plotting and waging aggressive
war as a "crime against peace." Yet since 1999, U.S. forces
have attacked three nations. Each time, a president has either started
the war outright or gotten Congress to relinquish its power to decide.

the two contenders care about either the Constitution, which presidents
swear to uphold, or international law? Their main issue seems to
be who can better conduct unending presidential war.

fear of "communism" and now "terrorism," Americans
have condoned presidential dictatorship over life and death. Hope
for the rule of law may fade away unless we, the people, demand

14, 2004

Paul W. Lovinger [send him
], author and journalist, is secretary of the nonpartisan,
San Francisco-based War and Law
, which he founded in 1998. It seeks the rule of law in
U.S. foreign affairs.

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