His Majesty’s Illegal Wars

One of the most important stories in Anglo-American constitutional history has been the struggle over what is called the “royal prerogative”. That’s the term for the power of the monarch to act on his own initiative, without accountability to anyone, in such areas as foreign affairs, warfare, law-making, etc. One of the driving principles in the Declaration of Independence and in the Constitution was the need to limit the power of the executive with checks and balances.

We have now come to a place where it seems to be generally accepted that the president has the royal prerogative to take the United States into war without approval from anyone else. The last President and the current one have involved us in wars in Afghanistan, Iraq, Libya, Somalia, Yemen and Syria, all of which were or are being waged without any regard to the law. Now the President is threatening to attack Syria and Russia in response to the illegal use of chemical weapons against civilians. His use of intemperate language in these threats is deeply disturbing.

The war against civilians in Syria is a profound injustice, and the use of chemical weapons can never be justified. The instinctive desire to respond, to punish those responsible, is perfectly understandable. But we cannot respond to illegality with illegality – we need to act according to the law, both human and divine.

Let’s first go back to Constitutional Law 101. Article One, Section Eight of the Constitution gives to Congress the sole authority to declare war, to raise armies and navies and to regulate them. Article Two, Section Two designates the President as the Commander in Chief of the military, which ensured civilian control of the military. But this does not give him unlimited power to make war or take other actions purely at his discretion. That principle has been upheld very clearly by the Supreme Court.The President is not above the law, but is bound under Article 2, Section 3 of the Constitution to “take Care that the Laws be faithfully executed”.

It has always been understood, however, that in emergency situations, the President can act to defend America against attack, even without first getting Congressional approval. But the War Powers Resolution, which has been the law for over forty years, specifically states that “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” (50 U.S. Code § 1541(c)) None of those conditions exist here.

Add to this is that the United States has signed onto the United Nations Charter, which is thus part of the “supreme law of the land”  according to Article Six of the Constitution. That Charter permits nations to act in self-defense against an armed attack (Article 51). But it also requires that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” (Article 2 §4). Under the Charter, and thus under American law, the authority to used armed forces against another state is reserved to the Security Council (Chapter VII). Again, none of these conditions have been met.

In recent years, Congress has completely abdicated its authority over declaring war. With a few exceptions (e.g., the first Iraq War), the United States has consistently ignored the United Nations Charter when deciding to engage in armed conflicts. Even worse, none of the self-described “constitutional conservatives” or other self-proclaimed defenders of the Constitution are raising any objections to the current President’s threats of war.

Now let’s turn to God’s law. It has always been an element of Catholic social teaching that nations may engage in warfare under very limited conditions. This has generally been known as the “just war” doctrine, and can be found in the Catechism of the Catholic Church, section 2307 to 2309. It comes under the Fifth Commandment, which imposes on us the strictest duty to respect all human lives, to avoid war, and to work assiduously for peace. Military force may be used as a last resort and only for defensive purposes, and the decision to engage in war must be made according to the laws of the nation and international law by the competent legal authorities. None of those requirements are even close to being satisfied here.

The Holy Father recently condemned the war in Syria and the use of chemical weapons: ““There is no good war or bad war. There is nothing, nothing, that can justify the use of such instruments of extermination against unarmed people and populations.” The Latin Rite Apostolic Vicar of Aleppo, who is on the ground in Syria, added, “The Pope’s appeal words echo our position and our greatest desire. We want peace.  In front of these attacks and the consequent threats, people are afraid and the escalation of the last days is frightening. I cannot say what has changed in recent weeks, but what we are seeing is the search at all costs for a pretext to destroy our country.”

We cannot accept a regime with unlimited royal prerogative to wage wars on other nations. As Americans, we must insist on the rule of law, both national and international. And as Catholics, we must bring moral principles into the debate.

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