Foreign Policy Blogging at OTB

I’ve just published some foreign policy-related posts at Outside the Beltway:

Just Rattle the Saber More Loudly
Another Drumbeat Heard From

In the first post I comment on David Ignatius’s column which provides today’s drumbeat to war with Iran. If we want to avoid an illegal, immoral, and futile war with the Islamic Republic, newspaper columnists (not to mention Republican presidential candidates) need to stop banging the drum, tone down the rhetoric, and let cooler heads prevail.

In the second I briefly take note of a column from an Israeli columnist which, apparently, urges the U. S. to attack Iran.

6 comments… add one

  • TastyBits

    I agree with the illegal part, but I disagree on the reason. The US constitution stipulates the way the US goes to war. It does not include the UN, and it does not include a bill such as the “War Powers Act”. If it is of such importance to act, it should be done explicitly, and everybody should be held accountable with no “escape clauses”. I realize that my view on the UN will be unacceptable to some, and we will have to agree to disagree.

    I find it amazing that there is little discussion of how we know what we know. After the Iraq WMD debacle, the “intelligence” should be assumed to be faulty until proven otherwise. What is even more amazing is that the “intelligence” about the Iranian nuclear program and missile delivery systems changes every few years.

    I find the column by David Ignatius to be disjointed. It appears to me that he is trying to reason backwards from a conclusion. At the end of the column, he jumps from “Iran is hardheaded” to “because Iran is hardheaded, the US must let them know we mean business.”

    Unless Iran interferes with the Strait of Hormuz, I doubt there will be any action against Iran by the US. I do not think the “drumbeat” is having the same effect as it did for Iraq. The “drum-beaters” time has past. I expect to soon see them on VH1’s “Where Are They Now?” or “The Surreal Life”.

    A Republican president will learn that things look a lot different from the driver’s seat. I find it highly unlikely that any president is going to take the country to war or a military action for re-election or election.

    With the US out of Iraq, it is possible for Israel to use Iraq airspace. I do not know what capabilities Iran has, but I would guess they would try to stop any Israeli refueling operations over Iraq.

    Without US backing, Israel attacking Iran would be suicidal. Most of the world will turn against them. Libya, Egypt, and Syria will be able to send their troublemakers to fight Israel, and this will allow those in power to strengthen their position. There will be additional results that will not be beneficial to Israel.

    This assumes that everybody acts rationally in their interest. I think that Israel is trying to get the US to act militarily and/or to get stronger sanctions imposed.

    “For the Snark was a Boojum, you see.”

  • I agree with the illegal part, but I disagree on the reason.

    When the Senate ratifies a treaty, it is as if the treaty were written as a codicil to the Constitution. The Senate has ratified treaties under which any use of force other than when attacked requires UNSC approval. Consequently, it would be illegal.

    That doesn’t prevent the Senate from doing as it jolly well pleases. However, absent some explicit abrogation I would think that the provisions of the treaty would have the force of law.

  • TastyBits

    @Dave

    I disagree with the applicability, but in any case, it would not be hard to gin up a reason to satisfy being attacked.

    I did not mean “War Powers Act”. It should have been “Authorization for Use of Military Force Against Iraq Resolution of 2002″. President Bush and Congress used this as cover for the Iraq debacle.

    “For the Snark was a Boojum, you see.”

  • Andy

    When the Senate ratifies a treaty, it is as if the treaty were written as a codicil to the Constitution. The Senate has ratified treaties under which any use of force other than when attacked requires UNSC approval. Consequently, it would be illegal.

    That’s not correct Dave. Treaties don’t amend the Constitution. Congress has the ultimate power to authorize war, that power comes directly from the Constitution, and that power can only be altered by a Constitutional amendment.

  • Here’s what I meant:

    As a matter of domestic law within the United States, Congress may override a pre-existing treaty or Congressional-Executive agreement of the United States. To do so, however, would place the United States in breach of the obligation owed under international law to its treaty partner(s) to honor the treaty or agreement in good faith. Consequently, courts in the United States are disinclined to find that Congress has actually intended to override a treaty or other internationally binding obligation. Instead, they struggle to interpret the Congressional act and/or the international instrument in such a way as to reconcile the two.

    Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are “self-executing” or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so–sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent–or lack thereof–that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not.

    All treaties are the law of the land, but only a self-executing treaty would prevail in a domestic court over a prior, inconsistent act of Congress. A non-self-executing treaty could not supersede a prior inconsistent act of Congress in a U. S. court. A non-self-executing treaty nevertheless would be the supreme law of the land in the sense that–as long as the treaty is consistent with the Bill of Rights–the President could not constitutionally ignore or contravene it.

    Note that “supreme law of the land” is diction reserved for the Constitution.

  • Andy

    Dave,

    “Supreme law of the land” does not mean superior to the explicit powers of the Constitution and a treaty can’t diminish those powers given to the the three branches of government. The Congress, for example, has the inherent authority to authorize war, collect taxes, coin money, etc. A treaty cannot change that. And, under our Constitution all legislative power is vested in Congress. Therefore, acts of Congress cannot, by definition, be “illegal” – only unconstitutional. Therefore the war was perfectly legal as far as US law is concerned. International law is a different matter.

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