8.4.2        America’s Legal Constraints

(This is an archived extract from the book Patterns of Power: Edition 2)

Congress approved the Authorization for Use of Military Force Against Iraq Resolution of 2002 on 16 October 2002.[1]  This gave the President authorisation:

“to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

defend the national security of the United States against the continuing threat posed by Iraq; and

enforce all relevant United Nations Security Council resolutions regarding Iraq.”

America’s legal right to “enforce all relevant United Nations Security Council resolutions” appeared not to have been questioned.  If a country fails to comply with a UN Security Council Resolution, it would be for the UN to authorise military action if necessary.  Otherwise, as one commentator has pointed out,[2] any country could invade Israel, for example, on the basis that Israel has failed to comply with several Resolutions.

During the 2004 presidential election campaign, when George W. Bush was asked whether America had the right to launch pre-emptive wars, he made his feelings clear:

“My attitude is you take preemptive action in order to protect the American people, that you act in order to make this country secure … My opponent is for joining the International Criminal Court. I just think trying to be popular, kind of, in the global sense, if it’s not in our best interest, makes no sense.” [3]

His response appeared to have been popular with voters.  It has also been argued that it would be unconstitutional for America to subject itself to international law.[4] 

On 13 March 2003 , just before the invasion, the United States Court of Appeals (1st Circuit) heard the case Doe v. Bush, which was a case brought by American soldiers, parents of American soldiers, and members of Congress to argue that the Congress authorisation was insufficient to allow the President to launch an invasion.  The case was dismissed.[5] 

© PatternsofPower.org, 2014

[1] The text of the American Congress Authorization for Use of Military Force Against Iraq Resolution of 2002 was available in April 2014 at http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/html/PLAW-107publ243.htm.

[2] The Common Dreams website published an article by the Institute for Public Accuracy on 9 October 2002, entitled Detailed Analysis of October 7 Speech by Bush on Iraq.  It raised detailed questions about the accuracy and verifiability of several statements in the Cincinnati speech, including America’s assumption that it had the right to unilaterally enforce UN Resolutions; that assumption was endorsed by the subsequent Congress Authorization (above).  The article was available in April 2014 at http://www.commondreams.org/views02/1009-10.htm.

[3] In the first debate of the 2004 presidential campaign between George Bush and John Kerry, on 30 September 2004, the candidates were asked if America had the right to launch pre-emptive wars.  Michael Signer quoted Bush’s response in his article A City on a Hill, which was published in the Democracy journal in summer 2006 and which was available in April 2014 at http://www.democracyjournal.org/1/6470.php. He continued by pointing out that Bush’s attitude was popular with voters.

[4] An article published by The Heritage Foundation was quoted earlier ( An Inconvenient Founding: America's Principles Applied to the ICC.  This article referred to “the primacy of the U.S. Constitution; its line of argument was applicable to all international law, and similar arguments could have been made in 2003.  It was available in April 2014 at http://www.heritage.org/research/reports/2010/02/an-inconvenient-founding-americas-principles-applied-to-the-icc.

[5] The judgement in the case Doe v. Bush on 13 March 2003 was available at http://www.lawfareblog.com/wp-content/uploads/2013/10/Doe-v.-Bush-323-F.3d-133-1st-Cir.-2003.pdf in April 2014.