Erin Niemela's recent proposal that we amend the Constitution to ban war is provocative and persuasive. Count me in. But I have a related idea that I think should be tried first.
While banning war is just what the world ordered, it has about it something of the whole Bush-Cheney ordeal during which we spent years trying to persuade Congress to ban torture. By no means do I want to be counted among those opposed to banning torture. But it is relevant, I want to suggest, that torture had already been banned. Torture had been banned by treaty and been made a felony, under two different statutes, before George W. Bush was made president. In fact, the pre-existing ban on torture was stronger and more comprehensive than any of the loophole-ridden efforts to re-criminalize it. Had the debate over “banning torture” been entirely replaced with a stronger demand to prosecute torture, we might be better off today.
We are in that same situation with regard to war. War was banned 84 years ago, making talk of banning war problematic.
>We were in that same situation, in fact, even before the U.N. Charter was drafted 68 years ago. By any reasonable interpretation of the U.N. Charter, most — if not all — U.S. wars are forbidden. The United Nations did not authorize the invasion of Afghanistan or Iraq, the overthrow of the Libyan government, or the drone wars in Pakistan or Yemen or Somalia. And by only the wildest stretch of the imagination are these wars defensive from the U.S. side. But the two loopholes created by the U.N. Charter (for defensive and U.N.-authorized wars) are severe weaknesses. There will always be those who claim that a current war is in compliance with the U.N. Charter or that a future war might be. So, when I say that war is illegal, I don't have the U.N. Charter in mind.
Nor am I thinking that every war inevitably violates the so-called laws of war, involving countless atrocities that don't stand up under a defense of “necessity” or “distinction” or “proportionality,” although this is certainly true. Banning improper war, while useful as far as it goes, actually supports the barbaric notion that one can conduct a proper war. The situation in which a war would be a “just war” is as mythical as the much-imagined situation in which torture would be justified.
Nor do I mean that U.S. Constitutional war powers are violated or fraud is perpetrated in making the case for war, although these and other violations of law are frequent companions of U.S. wars.
I also do not want to dispute the advantages of banning war in the highest law, the Constitution. There is a common misconception that holds up lesser, statutory law as more serious than the Constitution or the treaties that it makes “supreme law of the land.” This is a dangerous inversion. Edward Snowden is right to expose violations of the Fourth Amendment. Senator Dianne Feinstein is wrong to insist that those violations have been legalized by statutes. Amending the Constitution to ban war would (if the Constitution were complied with) prevent any lesser law from legalizing war. But a treaty would do that too. And we already have one.
THE 84-YEAR-OLD BAN ON WAR
