Some libertarians, misguided by Ron Paul, among several false leaders and several bad leaders, habitually, even frequently denounce the war in Afghanistan and the war of liberation of Iraq as “illegal”and “unconstitutional.” Such statements meet with little overt contradiction because the public has grown tired of both wars, the one that we left behind in Iraq and the one that’s more or less continuing in Afghanistan. These wars lasted too long for the American national ADD. In addition much of public opinion considers the charges of illegality and of unconstitutionality thoroughly irrelevant. Many more don’t even understand such charges. I think I understand well the charge of unconstitutionality and I consider it important. I care only a little about the charge of illegality. It’s too vague to be important and too absurd on its face to merit much consideration. Yet, it may be a conceptual step to the charge of unconstitutionality, the one that merits attention.
Right now, I cannot perform the research “lite” but nevertheless time consuming required to deal with the constitutionality of the former war against Saddam Hussein. I can however try to throw some light on the constitutionality of the on-going war in Afghanistan against the Taliban barbarians and against their allies.
Note on 5/25/12: My Ron Paul devoted follower- in- residence, Brandon Christensen, insisted several times in comments to this essay that Congressman Paul never called the Afghan war illegal or unconstitutional. Rather than review several tedious hours of the presidential debates where I heard Paul say that, I insert this warning here. If you believe Christensen, you may want to read what follows as a free-floating essay on the constitutionality of that war. Incidentally, Christensen himself, the loyal Paulista, has not responded to my invitation to declare whether he, Christensen, thinks the war is legal and constitutional. What he thinks is a secret.
Before I begin, let me say that I recognize that the war in Afghanistan is winding down. It will end almost irrespective of anything anyone does except in the unlikely case another massive attack against us originates there. I am sorry that war is ending the way it’s ending. I mean, with the democratic world displaying its lack of resolve for all believers in mass murder to see. I also think there is a fair chance that the Taliban savages will take over the country anew after we leave. Accordingly, it’s possible that again and again Afghanistan will serve as a haven for violent jihadists who have wet-dreams about assassinating large numbers of infidels. Incidentally, if you study the issue even a little you will soon discover – or re-discover – that “infidels” deserving of assassination by the violent jihadist include many more Muslims than non-Muslims of any kind. On May 19th 2012, the victims were 90+ members of the Yemenite armed forces. Periodically, the victims are the subdued Shiite Muslims in Pakistan; earlier they were even Iraqi Shiite Muslims who were themselves busy trying to kill Americans.
My wife’s share and my share of the cost of the ten-year war, together, averaged $400 annually so far. That’s about as much as I spent on tobacco when I was still smoking. It’s less than we currently spend on wine, and we have humble tastes and my wife hardly drinks any. It’s not much money to keep reminding the many mean, America-hating people in the world that we area a tough nut to crack.
Yes, of course, I don’t forget the 3,000 brave Americans who died in Afghanistan, nor the hundreds of NATO allies. The Americans died for a noble and valuable cause, to establish the notion that killing Americans and protecting those who kill Americans bring pain and suffering. Of course, every death is one too many but, if you believe this literally you have to surrender to the worst barbarity. It’s a kind of moral blackmail for those who use it. And, of course, I find despicable the crocodile tears of secret pacifists who call the Afghan war illegal. That just war has cost a ten times fewer American lives in ten years than traffic accidents cost in a single year. Yet, anti-war types never never go after traffic mortality although it’s obvious to any thinking person that many traffic deaths are avoidable. ( Driver’s license canceled on first DUI conviction; five years in jail on the second.) Anti-war persons of all feathers believe that it it’s no big deal if Americans kill Americans in a drunken stupor as long as the killers are at the wheel of an automobile. Some moral compass!
The charge of unconstitutionality of the Afghanistan war must depend on what the US Constitution has to say about war. Here it is, below in its entirety. It’s amazingly brief:
| ARTICLE 1, SECTION 8The Congress shall have Power:To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress…. ARTICLE II, SECTION 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into actual service of the United State |
In addition, the War Powers Resolution of 1973 limits the ability of the President to wage war without Congressional assent. By doing so, of course, the resolution recognizes de facto the right of the President to wage war of his own accord to some extent. This ordinary act of Congress obviously does not modify any part of the Constitution.
There are several precedents of presidential autonomy in matters of war. Here is one: In 1801, President Thomas Jefferson attacked the Barbary Pirates (of Libya!) and kicked their asses. What happened is that after the United States separated from the UK, the pirates figured the US as a state was too far away and too small to do anything about attacks against its merchantmen and looting and slaving taking place in the Med. Pres. Jefferson became annoyed.
“Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was ‘unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.’” He told Congress: “I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.”[14] Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli “and also to cause to be done all such other acts of precaution or hostility as the state of war will justify.” (Wikipedia)
Pres. Jefferson thus struck the pirate states without benefit of a formal declaration of war by Congress. He must have thought that when other people shoot at you, you shoot back, that you don’t need permission to do so. Congress did nothing to stop Jefferson. It seems Congress thought that Jefferson knew pretty well what the Constitution meant. I am wondering if Congressman Ron Paul, or any of his followers, would call the war against the Barbary pirates “unconstitutional.” I am not just asking for the sake of asking. I would like to see any of Paul’s followers answer this question here in writing.
The fact that the War Powers Act and the actions of several respected presidents show that the American executive may wage war with the passive acquiescence of Congress however does not mean that the War of Afghanistan was started that way
What happened is that President Clinton several time threatened the Taliban regime militarily if it did not stop hosting and helping Al Qaida. The fact is that President Clinton acted on his military threat. The feeble Clintonian military actions in Afghanistan however proved insufficient to motivate the Taliban regime to interfere with Al Qaida while it was preparing the 9/11 massacre. Thus, the American response to 9/11 was not written on a blank page. It was not a kind of Pearl Harbor in reverse. (I think libertarian commentaries imply something like that.) Even the semi-literate Taliban rulers had all the information at their disposal to know that a state of war existed between them and the US. That was several years before 9/11/2001.
Seven days after the 9/11 attack, a joint resolution of Congress gave the President the power to use all necessary force against those he determined planned, authorized or aided the 9/11 attack as well as those who harbored those who committed the attack. (This wording is paraphrased from Public Law 107-40, 107th Congress of the United States, first session; September 18th 2001. If you don’t like it, give your own wording right here, please.)
The joint resolution that begun the present war in Afghanistan passed by 420 to 1 in the House of Representatives. It passed by 98 to 0 (zero) in the Senate.
I don’t know how any war could be more legal than this.
Now, if you want to argue that the omission of the sacred words, “declare” and “war” is enough to make the war unconstitutional, go ahead, do it openly.
Libertarian leaders who say the Afghan war is unconstitutional or illegal, and first and foremost Congressman Ron Paul, don’t seem to know what they are talking about. Or else, they are closet pacifists who don’t wish to pay the political price of their moral convictions, ethical cowards, if you will.
If there is some sophisticated constitutional argument to the contrary that escapes me, I would be glad to publish it on this blog integrally and repeatedly. I will not treat especially well however attempts to change the subject under the pretext of picking up this challenge.
