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Five, six, seven, eight, who do we assassinate?

Please try not to get arrested, but in the shadow of the assassination of Qasem Soleimani, might it not be interesting to have a discussion about the rights and wrongs of assassination?

Most states, most of the time, follow a rough convention that important government employees – heads of state, government ministers, top brass et cetera – of State A do not assassinate their counterparts in State B, however wicked those counterparts may be. President Trump has shown himself indifferent to that convention. He could be praised for his courage (including personal courage: his own risk of being assassinated has obviously gone up) or damned for his disregard of the evil consequences that are likely to fall on others. In a world where national leaders target each other, wars are more likely.

Or are they? Did the fact that men like Soleimani could kill minor employees of other governments, not to mention civilians, without much personal risk, actually smooth the path to war? It does seem unjust that those steeped in guilt are sacrosanct while relatively innocent spear-carriers are acceptable targets.

Here is another question for us and anyone watching us to ponder. Many people have argued strongly over the last few hours that President Trump was right to break the convention of the immunity from assassination of senior state employees. But I have heard no one argue against the convention that only senior state employees can order assassinations.

ADDED LATER: In the comments “Chester Draws” made a very relevant point:

There is a convention that political leaders are not killed.

There is also a convention — literally — that embassies are not to be attacked. Iran broke that one first. And then again recently.

That fact alone, that until now the Islamic Republic of Iran got away scot-free with invading an embassy and kidnapping diplomats, made me much more willing to approve the unconventional killing of a representative of that government. Let those who boast that the rules do not apply to them learn that in that case the rules do not apply to them.

104 comments to Five, six, seven, eight, who do we assassinate?

  • Itellyounothing

    Rogue regimes don’t play by the rules.

    Best their senior folk fear their deaths if they pick a fight.

    Ours too!

    If the leaders think they might die, they are slower to pick a fight.

  • Chester Draws

    I’m not sure the convention to not assassinate leaders applies during war time: Hitler was keen to kill Churchill, and vice versa.

    Soleimani was overseeing military operations in another country. He was effectively at war then.

    It is true that Iran might escalate, but I doubt it.

    Firstly, they are already quite happy to do such things (the White House was an original 911 target, albeit not Iranian nutters). Given their bombing of Saudi oil, their fingers in the Iraqi, Syrian and Lebanese conflicts and their internal repression at home, how could the Mullahs escalate?

    Secondly, decapitating democratic leaders doesn’t have anything like the same effect — the likes of Soleimani running the show for 30 years doesn’t happen. Someone just steps in without much of an internal power struggle in the West, because power isn’t personal. Yes, the President has a lot of power, but his term is only 8 years maximum.

    Thirdly, if they do successfully assassinate a senior US figure, then their enemies will be only more firmly resolved to get rid of the Mullahs. Who would want an enemy on their border that is going to do that? The Saudis are itching to do it anyway. Likewise the Israelis. Meanwhile the Iranians have zero friends, having an ability matched only by Russia of managing to piss off all their neighbours.

  • Agammamon

    President Trump has shown himself indifferent to that convention.

    Let’s be fair here – the rest of American government hasn’t abided by that convention *at least* since 1986 and Reagan’s attempt to assassinate Qaddafi.

    Of course, like Bush’s ‘pre-emptive defense’ and the outcry when India used the same excuse, its one rule for us and a different rule for the rest of you.

  • Nico

    In any case, Soleimani was in Iraq -not Iran-, coordinating attacks on our embassy. That made him fair game. If killing him had required killing him in Iran that might have been different, maybe, but him being in Iraq at the time made the matter an absolute no-brainer.

    Play stupid games, win stupid prizes.

    Now, I’ve an idea: remove the sanctions on Iran by removing their origin: Iran’s nuclear weapons project. Bomb Natanz, Fordow, and the other facilities, to smithereens. Use small-yield nukes if need be — I won’t mind, just leave them with nothing, then drop the sanctions.

    And if they insist on military aggression anyways? Then revisit whether assassinating their leadership in Iran proper is ok — we might decide that it is!

  • Myno

    It’s the “try not to get arrested” part that bothers me most.

  • Nico

    @Chester: the U.S. assassinated Yamamoto during WWII.

    Leadership assassinations during WWII were very difficult to pull off with the technology of the day, but Yamamoto was traveling by airplane, and Ultra had the info, so taking out that plane was easy enough to do. That assassination almost certainly did not hasten the end of the war, but then, maybe it did — how would one prove such a contention?

    So if we’re looking for precedents, there’s one. I’m sure there’s others, no others as notable come to mind from the 20th or 21st centuries.

  • Nullius in Verba

    It depends somewhat on whether the ‘war on terrorism’ is technically a war. If so, the laws of war allow the killing of combatants, which may certainly include leaders directly involved in directing military operations – although it forbids doing so by treacherous or perfidious means (e.g. pretending to be a non-combatant). No problem there. And counter-terrorist conflict is firmly in the grey area on the edge of the laws of war.

    In peacetime, there is the UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons. It’s somewhat murky whether a military commander engaged in organising terrorist atrocities against another state counts is a protected person under the UN convention. As head of an outfit the US has declared to be a terrorist organisation, I think it would be pretty hard for Iran to argue that case without having its own activities abroad coming under legal scrutiny. And it’s not like the Iranians obey international law on conflict, anyway, and there are (or at least used to be) provisions in the treaties that they only protected you if you obeyed them youself. But ‘tu quoque’ isn’t a good argument for the US either.

    There is also Article 51 of the UN Treaty which forbids international conflict, except in carrying out a UN military resolution or in self-defence when a nation is attacked. Given the prominence of ‘self defence’ in the official commentary, this appears to be the legal line the American government are taking. The Iranians were in the process of attacking the US, and this was an act of self-defence to stop that attack.

    And we probably ought to mention Executive Order 12333, although it probably doesn’t apply in this case. It wasn’t a ‘political’ assassination, but a military/defensive one. And as an executive order, the President can make exceptions anyway.

    But ultimately, it comes down to the international political public opinion. It’s noticeable that none of the other governments are criticising the legality – only the wisdom, given the potential for destabilisation. I think most other governments are quietly in agreement, and indeed breathing a sigh of relief that the bugger’s gone, although of course they’re not going to admit that. (They obviously don’t want to be targeted as part of the Iranian revenge.) That’s rather different to the Iraq war, where the coalition’s legal justification for war was rather clearer, but the opposition to it a lot louder and more explicit. In pure military power terms, of course, the US can do whatever the hell it likes. The constraint on its operations has always been purely political.

    And politically, it appears Trump is going to get away with it. He still has to deal with however the Iranians are going to respond. But it appears both the domestic and international community are going to limit themselves to some loud ‘tut-tutting’.

  • Paul Marks

    The Islamic Republic of Iran regime has been waging war on the West for decades – and this particular enemy commander had ordered the deaths of hundreds of Americans and vast numbers of other people.

    The IRI regime is also savagely repressing the Iranian people (it killed thousands last year alone) and is a puppet of Russia and China.

    Most of the Iranian oil money ends up either with Russia or (even more) with the vicious Chinese dictatorship (the People’s Republic of China regime may have utterly betrayed the economic socialism of Mao – but they retain his hatred of liberty and his hatred of the West, the PRC regime is determined to destroy the Wet) – with what is left of the money over going to the supposed enemy of of IRI, the Turkish regime.

    I have no time whatever for people (including libertarians) who have a problem deciding whose side they are on – the side of IRI regime, or the side of the President of the United States, and YES (whether people like him or not), Commander in Chief of the West – Donald Trump.

    This reminds me of the entry of the United States into First World War – repeated German attacks, many (not one – many) American ships sunk, German terrorist attack in the United States itself (there have been IRI terrorist attacks as far as Argentina) and still fools (and worse than fools) talk about the “pretext” for war in 1917, just as they claimed that the telegram from the German government to the Mexicans was a forgery even after Mr Zimmerman (the same man who supported sending “Lenin” into Russia) admitted it was real and that he had sent it.

  • the U.S. assassinated Yamamoto during WWII

    Sure, but Operation Vengeance was a deliberate, intelligence led, military operation to take out the man that was probably most culpable in the cowardly attack on Pearl Harbour. If there is any dictionary definition of a “legitimate target” (especially during war) the assassination of Yamamoto was probably it.

    It is actually unclear whether the pilots who killed Yamamoto even knew who they were attacking (to avoid the information getting into Japanese hands if they were captured). By targeting the plane in the air they also excluded civilian casualties, since all the dead were Japanese military personnel.

    As for Soleimani? He was culpable for many atrocities of the Iranian regime, not just the embassy attack. If the Americans felt they were justified in taking him out, then I certainly won’t lose any sleep over it.

    My only concern is that foreign adventures abroad are often an excuse to cover up domestic problems at home. I hope the Trump is just reacting appropriately to events in the middle east, not trying to distract from his problems at home.

  • Julie near Chicago

    Paul,

    Zimmerman confessed to it??!!

    I read Barbara Tuchman’s book a hundred years ago, in the days when I still believed that most authoritative works really were.

    Then 20 years or so later I discovered it was all wrong, and the alleged telegram never existed.

    In the last couple of decades I’ve seen some people saying that there was indeed such a telegram after all; but I haven’t seen anything saying Mr Z had copped to it.

    Thanks a bunch. Now I’ve gotta go get all dusty in the musty old cyberstacks again. Hmph. And what I want is supper!

    A.k.a., Thanks for the info. 🙂

  • Paul Marks

    This killing of an enemy commander is much the same as the killing of Heydrich during World War II – H. was not an orthodox military commander, he was head of the S.D. (a force, in some ways, similar to the force this enemy commander was in charge of).

    Those who are against the West in the struggle with IRI regime (and Putin and most-of-all the People’s Republic of China regime) are really against the United States in relation to BOTH World Wars – not just the First World War. The Rothbardians are quite open about blaming the West for the 2nd World War and for the Cold War as well.

  • Paul Marks

    Yes Julie – he confessed, but did not stop the death-to-America crowd (who falsely call themselves patriots and supporters of liberty).

    Check out the handful of Senators and members of the House of Representatives who voted AGAINST war in 1917 – they were mostly so rabidly collectivist that they made President Wilson look free market by comparison, and they were mostly more (more – not less) racist than him as well.

    It is what the Rothbardians always do – they concentrate on the sins of the United States and ignore (indeed cover up) the greater sins of the enemy. This leads to them to support the Confederacy in the Civil War – it was all about trade policy, not slavery – they actually come out with that.

    There was one lady who voted against war in 1917 – the lady was still around in 1941 and argued that a stern letter of protest be sent to the Imperial Japanese Government concerning the Pearl Harbour “incident”.

    More than 40 years of the Islamic Republic of Iran shouting (indeed screaming) DEATH TO AMERICA – and some people still have not got the message.

    “They are just interested in the Middle East” is the last line of the “Why Die For Danzig” brigade – they ignore that the IRI regime is behind terrorist attack all over the world (as far from the Middle East as Argentina).

  • More than 40 years of the Islamic Republic of Iran shouting (indeed screaming) DEATH TO AMERICA – and some people still have not got the message.

    I would have some sympathy for the Iranian regime if they were representative of the views of their own people (they don’t / aren’t) or if the standard of living / freedom of the average Iranian had improved in the 40 years since the Iranian Revolution (it hasn’t)

    Not that what was done before under the Shah’s regime was substantially better, but they just seem to have changed the roles of who was being persecuted / tortured / executed and for what reason. Which is not exactly progress, is it? Even by the standards of the Middle East.

    So, yes. I think Iran and the USA have a legitimate beef with each other and since they seem unable to resolve it politically or diplomatically then maybe a bit of Iranian regime change is in order.

    After all, the current Iranian regime doesn’t seem to be working for the people of Iran, so maybe a nudge here and some support for a popular uprising there (i.e. what the CIA used to do back during the Cold War) would be just the thing.

    Better to have a corrupt democracy like they have in Iraq, Afghanistan, Pakistan et al than the current rabid dog of an “Islamic Republic”.

  • Julie near Chicago

    Yes, Paul. The Rothbardians are quite tiresome about the-U.S.-is-always-wrong.

    Miss R. was quite right to lambaste them & the horse they rode in on. It’s telling that she ended up on somewhere between decent and friendly terms with von Mises.

  • Eric

    Sure, but Operation Vengeance was a deliberate, intelligence led, military operation to take out the man that was probably most culpable in the cowardly attack on Pearl Harbour.

    Yamamoto was against the whole idea and wasn’t averse to letting his superiors know it. If you’re assigning blame for the attack to individuals everyone after Hirohito and Tojo is too far back to bother thinking about.

  • Alsadius

    Julie: The Zimmerman Telegram was definitely real. There was some debate at the time about it (since it came to the Americans from British intelligence), but it was pretty clear shortly afterwards that it was legit – it went public in January 1917, and Zimmerman acknowledged it in March. The thing about it is that there’s no reason to believe Mexico would be stupid enough to go for it. Germany was mostly just promising them money (since with the British blockade they had no way to deliver physical aid), but the main use for money in a war is buying weapons, and Mexico’s main weapons supplier was the US. You can’t use German money to buy weapons from the US as support for your war against the US. Also, it only promised support in the event that Germany and the US were already at war – it wasn’t about inciting anything, it was about lining up allies just in case the balloon went up. https://en.wikipedia.org/wiki/Zimmermann_Telegram

    Also, you guys will probably appreciate this bit of art: https://twitter.com/SMohyeddin/status/1213582657117937664

  • Also, you guys will probably appreciate this bit of art

    Yes. I did appreciate it. Thanks very much for that. Pretty much on point.

  • Yamamoto was against the whole idea and wasn’t averse to letting his superiors know it. If you’re assigning blame for the attack to individuals everyone after Hirohito and Tojo is too far back to bother thinking about.

    Actions speak louder than words and Yamamoto’s actions were heard across the world on the day that will live in infamy. Roosevelt was a bastard, but he was right about that.

    As for Hirohito “getting off Scot free” from his actions during WW2, I completely agree that he should have been tried and executed for war crimes the same as Tojo, indeed a lot more World War 2 “War Criminals” in both theatres of war should have faced the “short drop and sudden stop” penalty.

    The reason Hirohito didn’t was not because of a lack of culpability or even evidence (there was plenty of both), but because of the practicalities facing Douglas MacArthur restoring the Japanese to a functioning democratic economy, he simply felt that his task would be easier if Hirohito wasn’t dangling on the end of a hempen rope.

    There though, he and I would disagree.

  • patriarchal landmine

    was it an assassination? the guy was responsible for an attack and he was counter-attacked himself resulting in his death. he wanted to start shit, and as we all know if you don’t start shit ain’t gonna be no shit.

  • Rich Rostrom

    Julie near Chicago – January 5, 2020 at 12:28 am:

    Whoever told you the Zimmerman Telegram was faked was either a loon or a liar. There was never any question of its authenticity, even before Zimmerman admitted sending it. Ahem.

    When WW I started, Britain cut the undersea telegraph cables from Germany to the Americas. This prevented Germany from communicating quickly and privately with their diplomats in the Americas. The US State Department had installed a cable from the US to the US Embassy in Denmark. The Germans asked the US could they please use our cable? The US agreed, provided all messages were sent in clear, and the US wouldn’t let anyone else see them.

    When the ZT was to go, the Germans said could we please send just this one message in cipher? The US agreed.

    What the Germans did not know, and the US had more or less forgotten, was that the cable did not run directly from Denmark to the US. That cable (and many others) passed through a facility at Land’s End in Cornwall, where the signals were boosted for the cross-ocean jump. British intelligence tapped all the cables there, and read all the messages. That included the enciphered ZT.

    Furthermore, British cryptanalysts (in Room 40 at the Admiralty) had broken many German ciphers, including the one used for the ZT. When British diplomats presented the ZT to President Wilson, they also presented the ciphertext, which was on file in State Department telegraph records, and demonstrated the deciphering. (They didn’t admit to tapping the cable; they had a cover story of stealing the ciphertext in Mexico.)

    So not only was Germany caught trying to incite Mexico to war against the US, they were caught using the US’s own cable to do it. No wonder Wilson was enraged: talk about adding insult to injury.

    These facts are thoroughly documented; one can read the whole story in The Codebreakers by David Kahn.

  • Chester Draws

    There is a convention that political leaders are not killed.

    There is also a convention — literally — that embassies are not to be attacked. Iran broke that one first. And then again recently.

  • Nico

    NiV: The UN has no power here. There is no point discussing article 51 of whatever UN law. The only reason Bush jr even considered such things was because it was the price demanded by the UK for joining the party. Trump will “get away with it” provided something catastrophic doesn’t happen (say, that Iran somehow manages to nuke D.C., say, and possibly even then) because the American people approve of what he did and no other country (except Iran, if its leaders wish to condemn millions to horrible death) has the power to make an American President pay a price for taking out trash like Soleimani.

  • Julie near Chicago

    Rich,

    It’s around 50 years since I read Miss Tuchman’s book, and I’ve completely forgotten everything except the claim itself.

    So, thank you very much for the details.

    By the way — I read the “fake” story on the Internet, in at least a few different pundits. And remember, the Internet Is Never Wrong.

    It could have been told by people who wanted to discredit Wilson (on the right or left) or who wanted to (further) discredit the U.S. (on the left or right) as a warmongering country.

    When I find a bit of the time that the Great Frog has confiscated from me, I’ll try to hunt up your book. Thanks for the mention. :>)

    . . .

    Alsadius, thanks also to you for the info, and the links. I apologize for having overlooked it the first time through. :>)

  • Nico

    NiV: though, to be fair, similar things could be said about others. International law did not stop Putin’s Georgian and Ukrainian adventures, for example. The UN is mostly symbolic. Also mostly useless.

  • Eric (January 5, 2020 at 3:19 am), Yamamoto came up with the idea for the Pearl Harbour operation (Japan’s prior plan hd been to engage the US fleet in a deep ocean battle) and repeatedly threatened to resign if it were not implemented.

    Separately, many senior Japanese at many times in the run-up to war expressed concern at the idea of war with the US – including, IIRC, Yamamoto. In part, the decision for surprise attack came from the belief that Japan needed to seize an advantage at the outset.

  • Nullius in Verba

    “NiV: The UN has no power here. There is no point discussing article 51 of whatever UN law.”

    Ratified international treaties are incorporated into American law. Are you saying the President is not subject to American law?

    And the biggest consequence of breaking international treaties is that nobody will take your word for it in future when you try to rely on other treaties, contracts, agreements, etc. Same as with anyone else who breaks promises, contracts, or laws. That’s hugely expensive.

    Plus, with the Dems impeachment-mad at the moment, can’t you see them loving the idea of their High Crimes and Misdemeanors being stuff like rocket-powered assassination and extrajudicial murder and firing Hellfire missiles into the territory of independent, officially allied countries without their agreement and breach of international treaties, rather that tame stuff like making friendly, perfectly ordinary phone calls to foreign leaders?

    No, they will have made sure they have their legal arguments in place before taking an action of this sort.

  • mickc

    Nico
    The Georgian and Ukrainian adventures were surely Western adventures which Putin countered. It takes a lot of time and money to organise a spontaneous revolution.
    One wonders what the reaction would be if the head of the CIA had been killed by a Russian missile whilst visiting the Ukraine.
    Whilst the Iranian government is undoubtedly responsible for many evils, and the US has killed an evildoer, the same is true of Saudi Arabia who sponsored IS.
    If the King of SA, who is effectively absolute ruler and enemy of Syria, was killed by an Syrian missile whilst visiting another country the US outrage would be colossal. Yet the same principle would apply; the government of a country would have killed a foreign leader actively hostile to it and inciting and supporting violence towards it.
    The justification for the US action is expediency, and they are probably right.

  • The Georgian and Ukrainian adventures were surely Western adventures which Putin countered

    The EU pissing in Putin’s tea by encouraging Ukraine with talk of EU membership and all the rest of that bollocks didn’t help, even if the Ukrainian leadership were pro-Western at that time.

    Not trying to justify Putin’s actions in seizing Crimea, but it wasn’t exactly “unprovoked”.

  • mickc

    John Galt
    So far as I recall the elected President was pro Russian…hence him being deposed.

  • staghounds

    “God! God! If they were all
    there all the generals, the admirals, the presidents and the kings- theirs, ours all of them.”

    https://literaturesave2.files.wordpress.com/2009/12/william-faulkner-turnabout.pdf

    A convention by our Masters, for our Masters, to protect and perpetuate our Masters. F@ck that convention right in the eye.

    To paraphrase Mauldin, I would trade every President and Legislator on earth, and their whole families, for one random conscript.

    Let then have all that dulce and decorum for a while.

  • Mr Ed

    NiV: The UN has no power here. There is no point discussing article 51 of whatever UN law.”

    Ratified international treaties are incorporated into American law. Are you saying the President is not subject to American law?

    That strikes me as remarkably difficult to reconcile with my knowledge of American law, limited as it is. As I see it, the fallacy is eliding the obligation of the President of the United States to uphold and execute the laws of the United States, which is his sworn duty and Constitutional function as holding the Executive Power of the United States, and imagining that the incorporation of the UN Charter into the body of Treaties to which the United States has adhered (with the advice and consent of two-thirds of Senators present) somehow fetters the President’s freedom to act under US law and the Constitution.

    The United States accepting the UN Charter makes it a member of the United Nations, and the Charter governs how the United Nations operates with regard to its member states. The United Nations Charter does not add to the body of law of the United States as such, e.g. by creating an offence should the President not follow it. The question of the power of the President of the United States to direct the military of the United States is based in the power granted to him in the US Constitution and the laws made by the Congress. The war power (declaration thereof) of the United States is vested in the Congress, but this was not war, but presumably arises from the common law power of the President (as the replacement for the King of England) to direct actions against enemies that are short of war, and to defend the United States and its interests.

  • Mr Ed

    I hope that there is no truth in the rumour that this strike took place later than it might have, the previous mission’s fuzzy logic parameters, designed to maintain a degree of uncertainty should they leak, being to take out a man with grey hair and a beard who has links to the Iranian Government and hangs out with terrorists led to it having been aborted when the drone operator saw on his screen the outline of the Thames and realised the target was in Islington.

  • Fraser Orr

    I believe Harry Browne described this policy of leaders not killing other leaders as “professional courtesy.”

    Trump is not known for his courtesy, and that is probably a good thing. I do worry though that this thing could spiral out of control. We need to get our troops out of the middle east, we don’t need to be more engaged.

  • Johnathan Pearce

    Paul Marks writes: It is what the Rothbardians always do – they concentrate on the sins of the United States and ignore (indeed cover up) the greater sins of the enemy. This leads to them to support the Confederacy in the Civil War – it was all about trade policy, not slavery – they actually come out with that.

    Well said. This bait-and-switch evasion has been going on for a long time and is one of the reasons I am quite careful about calling myself a “libertarian” in some quarters today lest I be associated with this sort of thinking.

    One person I know in the UK libertarian realm (he is an acquaintance, not a friend) has described Trump as being a terrorist for this action. Not a word about the context, the reasoning given for the action, the long list of crimes and repressions, etc. No, it is just “terrorism”, and that’s that. Without any understanding of causation, of the whys of an action, slogans are just that: slogans.

    Some reading I recommend on all this is from Michael Burleigh and and John Lewis (the latter was an Objectivist).

  • Mr Ed

    I don’t recall that the Soviets had any particular angst about killing President Amin of Afghanistan back in the day, and he was one of their own, but was clearly no longer useful to them, he got what he gave others, but that is not the test for a lawful killing.

    I would distinguish between assassination, killing because you can, which is unlawful, and taking out someone engaged in aggression against you (or others). So Yamamoto, a serving officer in time of war, wholly legit. Wasn’t Rommel’s car strafed? Legit, even if the target was unclear, it was a military car in a war zone. Where there is no declaration of war (despite, as Paul notes 4 decades of ‘Death to America’ from Iran’s regime and many an act of war) and there is low-intensity undeclared warfare, killing someone who is engaged in or planning attacks seems moral to me, as for lawful, that is a matter of US law, and presumably the American evolution of the Royal Prerogative governs that, the right of the Armed Forces to strike enemies outside of formal war. What I find difficult is the issue of the killing or injuring of those not involved so-called ‘collateral damage’. I suppose that issue could be addressed by a form of ‘transferred malice’, reverting it to the target. However, in this case, all involved seem to have been involved in ongoing aggression against the United States and/or its interests. If the General were retired, I would see no basis in law or morals for taking him out because he was ‘in the crosshairs’.

    I have no doubt that the appropriate legal justification for the action has been worked through.

    Perhaps the notion of a declaration of war is becoming obsolete? Or has the declaration of war been made but the West prefers to pretend to not have noticed?

  • Hugh Mann

    It’s starting to feel like 2003 all over again here and at Harry’s Place. 2003 turned out very badly for the Iraqi people on whose ostensible behalf the invasion was undertaken, 2011 turned out very badly for the Libyan people, 2013-date has turned out very badly for the Syrian people. Maybe the welfare of the people isn’t what it’s all about after all?

    “Once is happenstance, twice is coincidence, three times is enemy action”

    “the Islamic Republic of Iran regime has been waging war on the West for decades”

    I think “the West” has been waging war, and a lot more successfully too, on any functioning ME state with a military since at least 1979.

    Egypt and Saudi being the exceptions – Egypt because since the filling of the Aswan Dam in 1976 their entire population has been hostage to a breach of that dam, and Saudi because all their US kit is full of backdoors/kill switches/GPS tweaks, in case it’s used against the wrong enemy.

  • Nullius in Verba

    “As I see it, the fallacy is eliding the obligation of the President of the United States to uphold and execute the laws of the United States, which is his sworn duty and Constitutional function as holding the Executive Power of the United States, and imagining that the incorporation of the UN Charter into the body of Treaties to which the United States has adhered (with the advice and consent of two-thirds of Senators present) somehow fetters the President’s freedom to act under US law and the Constitution.”

    Article 6 Clause 2 (the Supremacy clause) of the United States Constitution:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    Treaty power is a co-ordinated effort between the Executive branch and the Senate. The President may form and negotiate treaties, but the treaty must be advised and consented to by a two-thirds vote in the Senate. Only after the Senate approves the treaty can the President ratify it. Once it is ratified, it becomes binding on all the states under the Supremacy Clause.

    The United States wrote the UN Charter, and the Senate ratified it on July 28, 1945, by a vote of 89 to 2, with 5 abstentions. Its original aim was to try to get all the other countries to agree to behave as well as the United States.

    The President’s freedom to act is fettered *by* US law and the Constitution, through their voluntary choice to agree to be bound by a treaty. They didn’t have to agree to it, and they can withdraw from the Treaty if they choose, but so long as they have and until they do, it becomes part of the supreme law of the land, and it would be unconstitutional to breach it.

    In peacetime the USA can only take military action abroad either by resolution of the UN, or in self defence. There has been a long history of the US taking out terrorists – Obama for example did it often, not just with Osama Bin Laden – but these are all justified under the UN Charter on the grounds of self-defence, where those terrorists are engaged in carrying out violent attacks on the USA or its citizens, and local law enforcement, extradition, etc. isn’t up to stopping them. He can’t take out foreign fighters just because they happen to be politically inconvenient, or evil bastards, or a threat to the people of their own or some other country. It’s tightly constrained, the military have entire departments of lawyers specialising in military law, and soldiers generally have a duty to recognise and not obey illegal orders. (Unofficially, it is rumoured there are so-called ‘black ops’ which are illegal, but as with spying there will be serious repercussions if they’re caught. There are some situations so serious and goals so important that it’s argued are worth taking the punishment or political risk for breaking the law. But that an illegal black op was ordered by higher command is not a legal defence, or a legal excuse, if it’s exposed. And, of course, all governments deny that it ever happens, or that they would ever consider doing such a thing.)

    But the President wouldn’t be putting his name to it if there was any possibility this was illegal in international law. There’s plenty of precedent for it.

  • Political leaders have titles like “president” or “minister” or “king” or even “mullah.”

    People with “general” for their title are military leaders, not political ones. Military leaders are military targets.

  • In the US, treaties, in which President and senate must concur (and which IIUC cannot be made contrary to the US constitution), become law. It was a one of the (few, IIUC) points in which the founding fathers consciously departed from UK (Anglo-Saxon with mild Norman overlay) precedents in favour of Roman law, which had the same concept (that was how the early Roman Republic grew, by incorporating territories via the treaties by which peace was made with them, which were treated as laws, like other laws). This was a difference from the UK, where treaties were of the executive (modulo the Brexit-hating Blair-created supreme court deciding it could ignore a millennium of precedent when it felt like it).

    Thus I believe Nullius in Verba is technically correct above (January 5, 2020 at 4:49 pm). There have been attempts – sometimes by the usual suspects – to try and make the US government do what the petitioners claimed some treaty obliged them to do, though IIRC the US government’s opinion of what a treaty does or does not oblige them to do tends to prevail.

  • Jerry Musial

    Killing the military leaders of the enemy has been a goal/tactic going back thousands of years. See no reason to stop now.

  • Nullius in Verba

    “Military leaders are military targets.”

    If you’re at war, yes.

    Officially, the USA is not at war with either Iran or Iraq.

    Strictly, the law refers to ‘combatants’. A general who is not a combatant (e.g. injured or surrendered) is protected by the Geneva conventions. A political leader participating as a combatant is not. The laws of warfare are more complicated than can be explained in a few paragraphs.

  • Mr Ed

    Niall,

    I await the outcome of the General’s judicial review and writ of certiorari with interest, and the question of what would be an effective remedy. I see nothing in the UN Charter Article 51 that creates any enforceable right for either a foreign State or any real person, or anything which makes the President’s action unlawful. There is nothing in it to displace what was the Royal Prerogative.

    After all, if the making of a Treaty can fetter or change the President’s powers under the Constitution, all that, say, Mr Obama would have needed to do (with a tame Senate) had he wished to have done so, would have been to come to a Treaty with M. Trudeau aligning free speech and gun rights between the two Nations, and he could have amended the Constitution as he wished, without needing to bother with the tiresome process of ratification.

    Slightly OT, but has James Earl Carter said anything recently?

  • In late 1941, timed for just before the start of an 8th army attack, a special operation against Rommel’s headquarters missed Rommel by one day – he was returning from a mainland Europe discussion about supply matters when precursors of the SAS hit his supposed location in north Africa. Goebbels made propaganda against the ‘ungentlemanly’ British tactics. Unlike the random-chance 1944 car strafing that wounded him, this certainly appears to have been a planned attempt to kill (or capture) Rommel, though the 8th army operation orders avoided spelling this out and the intent is only recorded by survivors describing their verbal briefings. (Rommel was eventually forced to commit suicide by Hitler after his connections to the July-20th-plot conspirators emerged.)

    Whereas Heydrich could be seen as a criminal in and of himself, Rommel, though serving a criminal regime, was, during his north African campaign, about as free from personal criminal acts as any Nazi general in WWII. The operation against him aimed to disrupt the enemy command structure at a key moment. An operation to assassinate Hitler was planned, but never got beyond the planning stage.

    That was during a state of war. In “Eichmann in Jerusalem”, Hannah Arendt has an interesting discussion of the legal issues raised by Israel’s kidnapping of Eichmann from Argentina. Despite the Israeli court’s many listed precedents, she (plausibly) notes the virtual impossibility of ruling it valid in standard international law (the only truly-comparable ‘got away with it’ precedent being the Nazis’ kidnapping of an opponent in Switzerland in the 1930s IIRC – which the court understandably did not cite). She also notes that Argentina’s refusal of extradition treaties left Israel with no legal means of resolution whatever, and suggests international law should allow the concept of a criminal state.

    My take is that defending the legality of Trump’s action is a breeze – once again, ‘Orange Man Bad’ has led his haters into a logical as well as political dead end. However this imperfect world certainly contains less straightforward cases.

  • modulo the Brexit-hating Blair-created supreme court deciding it could ignore a millennium of precedent when it felt like it

    Which is exactly why the the Supreme Court will have to have its wings clipped back to the original remit of the Law Lords, effectively preventing the Supreme Court from further interference in purely political matters.

    Given the most recent BRExit bills passage, change to the Supreme Court isn’t urgent, but it is required.

  • She also notes that Argentina’s refusal of extradition treaties left Israel with no legal means of resolution whatever, and suggests international law should allow the concept of a criminal state.

    Why?

    If sovereignty means anything it means the ability to determine the laws, policies and actions within the territory under their control, otherwise “national sovereignty” is just bogus.

    If the sovereign state of the People’s Democratic Republic of Arstotzka decides that they will not subject native born citizens to extradition to the degenerate capitalist countries of the West (for whatever reason), then that is a matter for them.

    Plenty of countries refuse to extradite citizens except in the most exceptional cases.

  • Mr Ed

    The BBC are reporting that Iran has disavowed the nuclear deal. I suppose that means that they hand back the cash too?

    Iran has declared that it will no longer abide by any of the restrictions imposed by the 2015 nuclear deal.
    In a statement it said it would no longer observe limitations on its capacity for enrichment, the level of enrichment, the stock of enriched material, or research and development.
    The statement came after a meeting of the Iranian cabinet in Tehran.
    It comes amid heightened tensions over the killing of Iranian General Qasem Soleimani by the US in Baghdad.
    Under the 2015 accord, Iran agreed to limit its sensitive nuclear activities and allow in international inspectors in return for the lifting of crippling economic sanctions.

    So there’s scope for a new deal….

  • Nico

    Yes, under the U.S. Constitution the Treaties are part of the body of constitutional law. Not all treaties are self-enforcing, so not all treaties are part of the law as such, but yes, they are part of the body of constitutional law.

    A few special considerations apply. First, there’s no constitutional provisions for abrogation, but precedent is that Presidents can abrogate unilaterally, without any advice or consent from the Senate. Second, if there’s no mechanism by which a court can enforce a treaty as law, then it’s symbolic. The UN is symbolic. The UN is today’s League of Nations: toothless, and worse.

    You don’t like the Putin Georgian/Ukrainian adventures as examples of international lawbreaking without a care? There’s much more. China doesn’t give a flying **** about international law. Argentina didn’t either in 1982, did it. Israel doesn’t care about the many UN resolutions against it (oh sure, it doesn’t like their existence, but doesn’t abide by them either).

    International law is a fiction that works as real law only when those applying it want to apply it.

    Get over it.

    PS: The points about rothbardian libertarianism are great.

  • Mikesixes

    Iran has been waging war against the US for over 40 years. During that time they have attacked at least 2 embassies, kidnapped the crew of a US patrol boat, killed almost 300 US marines in a truck bombing, and committed countless smaller acts of war, killing american troops who were not engaged in any operations against Iran. The dear departed general was, as his title says, a military official, and was in fact the general in charge of these acts of war against the US. There is no question that he was a legitimate military target. The only question to be answered is, will the blowback from his killing make the killing regrettable?
    The US has been mired in Iraq for years, unwilling to allow the country to descend into the chaos brought on by the removal of the previous brutally despotic but stable regime. Now, in the wake of Suleimani’s removal, the Iraqi parliament has voted to evict the US. This means that anything that happens in Iraq due to America’s withdrawal will be something that the Iraqis literally and explicitly asked for. Trump would be a fool to pass up this opportunity.

  • QET

    The President’s freedom to act is fettered *by* US law and the Constitution, through their voluntary choice to agree to be bound by a treaty. They didn’t have to agree to it, and they can withdraw from the Treaty if they choose, but so long as they have and until they do, it becomes part of the supreme law of the land, and it would be unconstitutional to breach it

    Yes, but since 1803, it has been generally accepted that “it is emphatically the duty of the Judicial Department to say what the law is.” And so until the Supreme Court, as the head of said department, determines what “the law is” on this matter concerning the relation of a subordinate element of notional US law–a specific treaty–subordinate, that is, to the Constitution itself and perhaps to other statutes, in the specific context of this event, there cannot have been a violation by Trump. And should it ever be decided by said Court that the action was such a violation, Trump can always fall back on Admiral Hopper’s famous dictum: it is easier to ask forgiveness than it is to get permission.

    Also, consider whether it is rational for a treaty obligation to require that a nation formally declare war on another nation prior to taking action against one of that nation’s notorious military commanders in order to prevent imminent attacks on citizens/soldiers of the first nation by the second. A formal declaration of war would result in a great deal more killing and damage to the second nation than the occasional (justified) surgical strike.

  • Julie near Chicago

    Niall,

    A few years back, I questioned the idea that treaties properly entered into assume the status of Constitutional requirements, per the Constitution.

    Somebody here replied that that’s a misapprehension, because — IIRC — the wording of the Const. has the bit about treaties after the bit about the Const.’s being the “Supreme Law of the Land,” wherefore they do not become binding on U.S. law in the same way nor to the same extent that Const’l strictures do.

    I think it might have been Laird who explained it thus. The only other candidate I can think of — an American lawyer — would be bobby, and perhaps it was; but I think it was Laird, who was trained as a lawyer (although I forget whether he ever practiced as such; although he does or did play the French horn professionally *g*).

    As a matter of common sense, it seems ridiculous to me that treaties would have the same binding status on our governments* as do Constitutional requirements, but it also seems to me that that is what the Const. says. Also, I’m under the impression that we can (not “may,” can) break a treaty without the world’s falling off its axis. And have done so. For instance, see the Great Foot’s page on the INF signed by Pres. Reagan and Gorbachev in 1987, from which we withdrew in 2018:

    https://en.wikipedia.org/wiki/Intermediate-Range_Nuclear_Forces_Treaty

    *Randy Barnett’s favorite slogan:

    “The Constitution governs those who govern us.”

    . . .

    O/T: 2015 posting by Dominic Cummings on a 2004 speech by Richard (Epstein) on why the Lisbon Treaty was a bad idea and s/be scrapped. W/ link to pdf of speech.

    https://dominiccummings.com/2015/05/30/on-the-referendum-2-the-lisbon-treaty-compared-with-the-articles-of-confederation-us-constitution/

    [Also at The Great Realignment, comment to Natalie’s posting on Christmas Eve Day about Ragnarok and Fimbulwinter (we aren’t even close so far in northern Illinois 😥 ).]

  • TonyT

    Thanks to Nico 8:07 PM for pointing out what should be obvious: International law is meaningless. It barely applies to little countries no one cares about, and it definitely doesn’t apply in any practical way to the US, Russia, or Red China. International outcries against top-tier countries result in nothing more than the target country saying, “Yeah, whatever.”
    And it took 48 comments before Nico pointed this out!

  • Nullius in Verba

    “Yes, but since 1803, it has been generally accepted that “it is emphatically the duty of the Judicial Department to say what the law is.” And so until the Supreme Court, as the head of said department, determines what “the law is” on this matter concerning the relation of a subordinate element of notional US law–a specific treaty–subordinate, that is, to the Constitution itself and perhaps to other statutes, in the specific context of this event, there cannot have been a violation by Trump.”

    Yes, but the Supreme Court will determine what the law is by reading the treaty. And that’s even assuming there’s no precedent.

    “And should it ever be decided by said Court that the action was such a violation, Trump can always fall back on Admiral Hopper’s famous dictum: it is easier to ask forgiveness than it is to get permission.”

    And what do you think the impeachment committee would say in reply to that?

    “Also, consider whether it is rational for a treaty obligation to require that a nation formally declare war on another nation prior to taking action against one of that nation’s notorious military commanders in order to prevent imminent attacks on citizens/soldiers of the first nation by the second.”

    Which is *exactly* why the treaty also allows action to be taken in self defence – as I’ve pointed out several times, this is precisely the legal position the administration is taking.

    The President *is* bound by the UN Charter, but the law in question allows a nation attacked to defend itself militarily prior to seeking support from the UN, and this is the position the US has consistently taken on actions against terrorism.

    “International law is a fiction that works as real law only when those applying it want to apply it.”

    Breaking international law can have severe consequences, even for the most powerful nations. You can lose credibility. You can lose trade. You can lose moral authority. You can lose reciprocity, when everyone else decides the rules don’t apply to them, either. You can become politically and legally vulnerable to rivals internally.

    A dictator can ignore treaties they don’t like, but everybody knows that, so they don’t trust them about anything. You can’t get credit, because nobody believes you’ll pay it back. You can’t get outside firms to invest, and bring in new technology, because they fear you’ll nationalise their assets. You can’t buy anything, because nobody believes you’ll pay, or sell anything, because nobody believes you’ll deliver. And if anyone attacks you, steals from you, assaults your people, you’ll get no sympathy and no justice, because you offer nobody else any. You wind up as poor and isolated as North Korea.

    In a world where there are no higher courts to enforce deals, you can only deal with the limited few who you can trust, and that is why in a lawless society the concept of “honour”, of maintaining your reputation for keeping your word, is of such vital significance. It’s a matter of survival.

    For Trump, the most immediate consequence of breaking international law would be to make him genuinely vulnerable to impeachment.

  • Julie near Chicago (January 5, 2020 at 9:05 pm), my understanding is that treaties do not in the slightest become constitutional requirements, as if they were constitutional amendments passed by the proper process, but only that the US constitution says that treaties entered into by the president and senate are laws. In theory (in fairly abstract theory, one might argue) they are just like other laws duly voted and passed.

    In the late 1700s, the Roman concept of laws and treaties being the same was well known to the classically-educated founding fathers, and they made a conscious decision in that one area to adopt the Roman idea and depart from the British legal and constitutional forms that they were otherwise using as a template to be modified into the form they wanted.

  • Nico

    @NiV: This does not make Trump vulnerable to impeachment, and it is peak naïveté to think otherwise. It makes him vulnerable to losing the election if things get out of control, but that’s it. Not even the dems will seriously entertain that Trump’s violations of whatever UN charter you say he’s violating… is a reason to impeach. After all, Obama did plenty of UN charter violatin’ with his drones and interventions.

  • John Galt (January 5, 2020 at 7:24 pm), you ask “Why?” but then seem to agree with me that Argentina can (as it did) refuse to sign any extradition treaty, therefore if Israel wished to try Eichmann (as it felt it had a moral right to do – and I wholeheartedly agree) then it had no recourse in international law (short of declaring Argentina’s protection of him an act of aggression against it justifying war/article51 measures, but for obvious reasons they preferred to bank on Argentina agreeing post-hoc to treat the successful kidnapping incident as closed, as indeed happened).

    When the Taliban refused to yield Osama Bin Laden after 9/11, the US faced a not-wholly-dissimilar situation, which it resolved (IIRC) by treating 9/11 as an act of war by the country sheltering the terrorists who did it, justifying article51-type measures.

  • Nullius in Verba

    “my understanding is that treaties do not in the slightest become constitutional requirements, as if they were constitutional amendments passed by the proper process, but only that the US constitution says that treaties entered into by the president and senate are laws.”

    Agreed. Treaties are quite distinct from the constitution, just as federal law is. And in the same way the government cannot pass an unconstitutional law (or it will be struck down by the courts), for the same reason and in the same way they cannot agree to an unconstitutional treaty.

    What I meant was that that the constitution makes treaties part of ‘the supreme law of the land’, binding the courts, and thus it is unconstitutional for any part of the government to break any part of the law. But neither ordinary laws nor treaties are thereby made parts of the constitution.

  • Nico

    I’ll be contrarian and say that treaties are part of the law. Article Six of the Constitution reads:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    I believe that is crystal clear. One could argue that there’s a pecking order: Constitution, statues, treaties, in that order. There have almost certainly been treaty provisions (most likely UN treaties) which conflict with the Constitution, and our friends the Democrats would love to use a treaty to castrate various parts of the Bill of Rights — whether the courts would tolerate that or not is, as far as I know, an open question.

    Now, the Constitution provides no way to exit a treaty, but in practice Presidents abrogate treaties and there is nothing the Senate or Congress can do about it. So much so that modern practice is to have abrogation clauses in the treaties themselves to regularize the abrogation procedure, avoid doubt, and ease the pain for the other party should the U.S. abrogate. This is what makes it acceptable that treaties are part of the law of the land: that there is a pecking order, and that even though they have great force while requiring only 60 votes in the Senate to achieve that force, they can be abrogated at any time for any reason without further ado.

    I think that’s a nice balance. The founders were a wise bunch. If we had to catalogue the number of bugs in the Constitution, we’d find relatively few, obscure ones, such as:

    – court packing should have required supermajorities;
    – split POTUS/VPOTUS elections as in the original, remnants of which remain in the way they are elected in the event that the Electoral College cannot elect them;
    – long Presidential transition periods;
    – style issues that create room for ridiculous interpretations (e.g., that the Second Amendment is about well-regulated militias, or just the national guards);
    – impeachment of the Executive being a thing (there have been quite a few impeachments and removals of Judges, but no removals of Presidents);
    – not listing the right to inform a jury of its right to nullify laws;
    – requiring as many States request a Constitutional Convention as would need to ratify Amendments;

    and a few other bugs. Note I did not list slavery-related issues: the Founders knowingly punted on slavery because they could not have resolved it in 1787 — so those aren’t accidental bugs, but bugs they knew of and were -sadly- unable to tackle at the time. It’s a remarkably pithy and effective document that has by and large been followed in spirit and letter.

  • Nico

    @TonyT: eh, I mentioned it at 7:52am as well 🙂

  • bobby b

    What I like about Trump?

    Here was all are, talking about forgiveness instead of permission.

    (I note that the bomb was dropped in Iraq, not Iran. It was dropped on, and killed, several members of the Popular Mobilisation Forces, which has been an avowed military enemy of the US in Iraq. Not a good choice to cadge a ride from.)

    (The UN? How many divisions do they have?)

  • Nicholas (Unlicenced Joker) Gray

    Why not assassinate Corbyn? That will remove Corbyn permanently from the Labour ranks, AND make him a Martyr- something I’m sure he’d prefer to being labelled a loser by history! And the conspiracy theories will keep novelists and film-makers happy for years!

  • Julie near Chicago

    Nicholas, all I know is that Elvis helped with filming the Moon Landing Hoax. If Corbyn had been helping I doubt if it would have looked so realistic.

  • Nico

    @Nicholas Gray: For one, Corbyn’s not a terrorist, though he hangs out with a lot of them. For another, Corbyn is the UK’s problem — well, was. Lastly, or maybe firstly, who?

  • Nullius in Verba

    “There have almost certainly been treaty provisions (most likely UN treaties) which conflict with the Constitution, and our friends the Democrats would love to use a treaty to castrate various parts of the Bill of Rights — whether the courts would tolerate that or not is, as far as I know, an open question.”

    It was decided by the Supreme court in Reid v. Covert, 354 U.S. 1 (1957). A plurality of the Court reaffirmed the president’s ability to enter into international executive agreements, though it held that such agreements cannot contradict federal law or the Constitution.

    “Here was all are, talking about forgiveness instead of permission.”

    Or impeachment! 🙂

    There’s nothing to forgive. The action was legal (or at least, in a sufficiently grey and ambiguous area that nobody can prove it isn’t legal), following long precedent of the US taking out terrorists in other people’s countries, and (so far at least) everyone but the Iraniams is happy about it. However, it’s not that the President can do whatever he likes. He is constrained by international law. It’s that this action complies with international law.

  • bobby b

    The talk in Washington and amid Washingtonians has rapidly switched from “this is illegal” to “this is awful, and not a good decision, and will make us all unsafe.”

    That’s the first sign that the legality of this move is clear. It happend in a war zone, in which we have troops at risk and have declared our presence, and was in direct retaliation against a combatant for aggression against us and our cause.

    We can debate whether or not we like what he did – which is exactly what the impeachment process has become – but the United States Supreme Court is not going to rule that Trump acted illegally. And that’s the bottom line.

    It takes a special kind of doublethink to see a bullet fly past the men in the front line and strike down a general and cry “assassination!”

  • Julie near Chicago

    Nico, on January 5, 2020 at 11:45 pm:

    I’ll be contrarian and say that treaties are part of the law. Article Six of the Constitution reads [2nd Para. of Article VI, my boldface –J.]:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    I believe that is crystal clear.

    Given the way the para. is punctuated, it’s proving very difficult for me to nail down the meaning. For quite awhile I’ve been reading it exactly as Nico does, but it’s like one of those optical illusions where you go back and forth between two different interpretations of what your eyes are telling you, and I can also take it that the part after the first semicolon assumes a regime in which that first phrase already rules subsequent strictures.

    So my personal opinion at this point is that the para is in fact ambiguous, being capable of supporting two different statements of its meaning. The trouble arises because of the way it’s punctuated. I would love to know whether the Framers had a unanimous and fixed opinion of what it means.

    And I should stress again that this is not about what I want it to mean. I’m questioning what it was supposed to mean.

    Lest anyone feel injured by the way I put my request for the opinion of an attorney well-trained in American Con-Law, I did not ask how treaties have been handled in practice (and thus, what precedents have been set). Regardless of whether we’re following it or not, what does the dammm thing say?

    Then again, I guess trying to answer that is really a mug’s game: It’s not as if any two Con-Law profs agree about what the Const. means in any part of any Article, she added sourly.

    In any case, thanks for your thoughts, guys. :>)

    .

    And by the way, Nico’s proposed changes are interesting, and I could get behind all or almost all of them. I also agree with Richard (Epstein) that SC Justices’ terms should be limited. He likes 18-year terms.

  • bobby b

    “I believe that is crystal clear. One could argue that there’s a pecking order: Constitution, statues, treaties, in that order.”

    I think y’all are reading the Supremacy Clause more expansively than any Supreme Court has done in the past.

    The sub-clause that’s getting short shrift here is ” . . . and the Judges in every State shall be bound thereby . . .”

    It’s a declaration that properly formed federal law is superior to the law of individual states. It has not been read so as to add any weight to treaties.

    “In essence, it is a conflict-of-laws rule specifying that certain federal acts take priority over any state acts that conflict with federal law, but when federal law conflicts with the Constitution that law is null and void. In this respect, the Supremacy Clause follows the lead of Article XIII of the Articles of Confederation, which provided that “Every State shall abide by the determination of the United States in Congress Assembled, on all questions which by this confederation are submitted to them.”[3] A constitutional provision announcing the supremacy of federal law, the Supremacy Clause assumes the underlying priority of federal authority, only when that authority is expressed in the Constitution itself.[4] No matter what the federal government or the states might wish to do, they have to stay within the boundaries of the Constitution. This makes the Supremacy Clause the cornerstone of the whole American political structure”

    https://en.wikipedia.org/wiki/Supremacy_Clause

    Additionally, the U.S. President retains the power to unilaterally withdraw the U.S. from international treaties. Congress has tried to sue the President to stop this in the past – the USSC has refused to take the cases, stating that the issue is a political question and thus not within its purview. Remember when Bush took us out of the ABM Treaty? The USSC kicked Congress’s protest of that out.

  • bobby b

    “Regardless of whether we’re following it or not, what does the dammm thing say?

    Then again, I guess trying to answer that is really a mug’s game . . .”

    Exactly.

    The Constitution consists of that document, plus all US Supreme Court rulings on it since it was ratified. They are inseparable. You can parse the words of a contract. Parsing the words of the Constitution in a vacuum is a fun exercise, but gives you little insight into our Constitutional law.

    “Congress shall make no law . . . abridging the freedom of speech . . .” But they do, all of the time. You have to consider the USSC’s pronouncements to the Constitution to read it accurately.

    All y’all grammarians will never replace us lawyers!

  • Julie near Chicago

    “If that’s all there is, my friends, let’s keep on dancing …. Let’s drink up booze and have a ball….”

    And if we all survive till Independence Day, we can hoist some of bobby’s mead and be thankful that the Great Frog has sent us people like bobby, who have practical skills. 😀 😎

  • Mr Ed

    Treaties are essentially about regulating the interactions of the United States with other States, e.g. defining the border of the United States with UK territory (as it then was) along the 49th Parallel for a stretch, even when it creates the ridiculous but legitimate Point Roberts in Washington State.

    If other States wish to enforce their treaties with the United States, they have two options, point out the benefits/disbenefits of adhesion, in as whiny a tone as they care to adopt, or abrogate the treaty themselves.

  • staghounds

    “It takes a special kind of doublethink to see a bullet fly past the men in the front line and strike down a general and cry “assassination!”

    Unless, of course, you are a General’s boss yourself.

  • Surellin

    Dude was in uniform, out of his country, doing war stuff.

  • bobby_b writes:

    All y’all grammarians will never replace us lawyers!

    Along those lines, and having read some 70 comments, I have picked up the impression that the one of the cases being made here is: “Red Tape does not beat AK47s and IEDs, but it sure does beat Hellfire missiles.”

    Best regards

  • QET

    Yes, but the Supreme Court will determine what the law is by reading the treaty. And that’s even assuming there’s no precedent.

    Reading the treaty, yes. Reading how it interacts with other provisions of the Constitution. Maybe, as with a statute, the operative article of the treaty would be found to be unConstitutional. Maybe it would be found to have been nullified/superseded by a later treaty or a later statute. As others have said, a treaty, like a statute, cannot
    “amend” the Constitution.

    However, I can easily envision today’s federal judiciary taking upon itself the power to evaluate whether it (meaning the judge to whom the case is assigned) is “persuaded” by Trump’s claim that the killing was intended to prevent imminent attacks. The judge would transform himself into a Field Marshal as he reviewed the intelligence and decided that no, the evidence did not substantiate in his mind such a claim. And anyone who has been following this sort of thing in the US lately will understand at once that the only relevant variable in the judge’s “evaluation” is the identity of the current President.

    And speaking of libertarians, just today our silly flagship libertarian mag Reason has an utterly predictable article headlined “No Evidence of imminent attacks,” which “no evidence” becomes “thin evidence” in the article’s body, and the evidence of such “thin evidence” is merely the say-so of some unnamed sources and the Washington Post (the Washington Post!).

    Regardless of one’s reflex feeling toward military action like the Soleimani killing, no one can in good faith deny that the standards being applied to Trump by progressives and libertarians alike, in all that he does and not only this event, are entirely novel and entirely different from the standards such minds applied to other presidents, and most especially the last. Obama’s every act was given the presumption of lawfulness and propriety because it was He; the burden of proof for any detractor was even higher than reasonable doubt. Trump is adjudged guilty out of the gate for actions of the same kind, and the burden of anyone disagreeing with said judgment is the wholly subjective one of gaining the agreement of the judges, which agreement it is in their power to withhold as they see fit, and they universally see fit. Only vis-a-vis Trump is the argument ad hominem held not to be a logical fallacy but logic itself.

  • Julie near Chicago

    This is really a follow-on thought, inspired by bobby’s remark above at 10:04 a.m. [I trust everybody knows I haven’t an argumentative bone in my body. ;>) –After all, bones themselves can’t argue, except metaphorically. 😆 ]

    bobby wrote:

    “The Constitution consists of that document, plus all US Supreme Court rulings on it since it was ratified. They are inseparable.”

    I’ve seen this claim before, but it can’t actually be accurate, can it? The Constitution can only be altered by Amendments to it, and it specifies the two routes to Amendments. ( From the Federal Register on “The Constitutional Amendment Process”:

    https://www.archives.gov/federal-register/constitution

    The authority to amend the Constitution of the United States is derived from Article V of the Constitution. …. The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. )

    Supreme Court Majority Opinions (or “Majority Decisions”) are just that — opinions. If they were to be incorporated into the Const. as a legitimate part of it, they could become such only by going through one of the two initiating steps, before becoming Amendments themselves; and furthermore, could only be repealed by another Amendment, as the 18th Amendment (Prohibition) was repealed by the 23rd.

    Yet Plessy vs. Ferguson was overturned* by SCOTUS in Brown vs. Board of Education, as well as by the fact that it wasn’t made an Amendment by the rules set forth in the Const., it can never have been part of the Const. — and neither can the anti-discrimination opinion (“decision”) of Brown v. Board.

    *Brown v. Board wasn’t and isn’t an Amendment either, since it didn’t go through the Amendment process.

    In short, we tend to treat SCOTUS opinions-of-the-majority as if they were the Supreme law of the land, but they’re really not. The Great Foot lists, IIRC, 10 overturned SCOTUS rulings. Properly understood, they have only probationary status as testing or superseding statute law.

    To me, that is crystal clear.

    .

    Interesting sidelight: Richard, naturally, is all for the majority ruling in Brown v. Board, but he also think the arguments seen as supporting it were “an intellectual mess” and that on the merits, it s/ never have been passed. :>)))

    . . .

    I enjoy QET’s characterisation of Reason magazine. LOL

  • Nico

    @JnC: The Constitution doesn’t say it, but it strongly implies, and long has been taken to be so anyways, that unconstitutional Acts of Congress are… unconstitutional, but who shall decide? Well, the Court. It’s been over 200 years since this has been accepted. Occasionally Congress makes noise about it, and occasionally Presidents do too, but as long as the Court doesn’t make too outrageous a decision (relative to contemporaneous politics), it gets away with saying what the Constitution means.

    This is either a bug or a feature. It depends.

    BTW, my earlier list of bugs was not a list of fix proposals. Though many of the bugs listed have obvious trivial fixes.

  • Julie near Chicago

    As to the first: Correct.

    Sometimes a bug, sometimes a feature. Correct.

    Your Point 3: Correct, as the obvious fixes.

    :>)

  • bobby b

    Julie near Chicago
    January 7, 2020 at 12:02 am

    “The Constitution can only be altered by Amendments to it . . . “

    Correct. The actual words in the Constitution are sacrosanct. It takes supermajority+ support to make changes.

    But the words are just words. Sometimes strings of words are clear. Sometimes, not so much. (“A well regulated Militia, being necessary to the security of a free State . . .”)

    So, without changing the words, someone has to decide what the words mean, and then apply that meaning to some new situation. In our system, the final arbiter is the USSC. This is why we feel it so important that Ruth Bader Ginsburg retires soon to a comfortable villa in the south of France for her remaining eight or so decades of life.

    And opinions about the meaning of words can change. For decades, the “well regulated militia” language was interpreted one way. With a change of personnel, and some new historical information, that institutional opinion changed, and the old interpretation was replaced with a newer one. No amendment was needed – simply a changed interpretation.

    “In short, we tend to treat SCOTUS opinions-of-the-majority as if they were the law of the land, but they’re really not.”

    No, they’re not. They’re only the official interpretation of what the Law of the Land actually says. Imagine a country with a dictator who only speaks an obscure and dead foreign language. Now imagine the power his interpreters would hold.

    This is why I greatly fear amendments or constitutional conventions. We’ve had 230+ years to interpret the words in the base constitution, and we still come up with new interpretations. But when people draft new language, we’re then going to see the courts reviewing and parsing and investigating that new language for decades more, and I doubt that the finished product is going to resemble what those new drafters thought they were writing.

    It’s probably not proper to say that the Supreme Court opinions change what the Constitution says – but they do change what it means.

  • Julie near Chicago

    Ah, bobby. Alas, I agree with your conclusion (and the rest of your comment). But it is entirely against my nature to do so. As I said before (this discussion? I fergits), I am a good hobbit. I like “yes” and “no” answers. And one of things I like(d?) about Miss R. was her insistence that “words have meanings.” And so they do, but even in my head a word can have two meanings at once. It’s very confusing. And I guess that that’s why nowadays I bow to none but the Great Frog.

    I guess that’s the price we pay for having brains flexible enough to change our mental maps when we run into inconvenient facts. Sometimes, anyway.

    .

    I agree. Let’s not do the Amendment thing. Can you imagine what the Ungreat State of Chicago-in-Springfield, Illinois would have its Congressmen put up? In the hands of, say, little Dicky Durbin? (Have you heard what Richard has to say about him & his amendment? Quite heartwarming.)

    .

    I do wish that Mrs. Ginsburg could heal perfectly and then be so excited and feisty that she would resign from the Court and spend the rest of her life laughing and dancing in the most interesting places in the world. And that the G.F. would then burp a directive to our President as to whom he shall nominate to fill her seat, and soap Dem Congresscritters’ Congressional lily pads so that if they try to sit on them they simply slide off. 😆

  • Paul Marks

    This man killed many Americans and was involved in attack around the world – he never bothered to issue a “Declaration of War”, anymore than the Barbary Pirates that Jefferson attacked bothered with this.

    As far as this non-army (essentially SS) General was concerned the Koran itself was the Declaration of War – as I can not read Arabic (and translations are considered worthless in Islamic jurisprudence) I do not know whether the General was correct or not in his interpretation of the Koran, the Hadiths and the Commentaries.

    However, this is what he believed – and a lot of people (including vast numbers of the MUSLIM people – because they had, supposedly, got the Koran and so on wrong) were killed by the General on this basis. And he did not give a damn whether you were in Iran, Iraq, or Argentina – he wanted you DEAD or ENSLAVED where-ever-in-the-world-you-live.

    If the Democrats, and some of are own libertarian brothers and sisters, do not know whose side they are on between President Trump and the Islamic Republic of Iran – well to Hell with the Democrats and to Hell with the Rothbardians.

  • Paul Marks

    If someone deliberately murders Americans and the local government will do nothing about it, then the President of the United States has the right (and the DUTY) to have them killed.

    “But only Congress has the legal power to Declare War” – President Trump has NOT Declared War, he is just ordering enemies of the United States killed, as almost every President has done for centuries (including President Washington and President Jefferson).

    One does not need to Declare War to kill those who have deliberately killed one’s own people – not when the local regime protects them (so there is no way to “arrest” them).

    “Chesty” Puller dealt with a lot of this in Central America many decades ago (kill Americans and destroy what they built – and he would hunt you) – certainly Marine Corps General Butler denounced it, but Butler (good fighter though he was) was a stooge for the Marxists, he lied to Congress (and the American people) about being asked to lead a Fascist coup against President Franklin Roosevelt.

    Why would anyone who wanted Fascism overthrow the President who pushed the National Industrial Recovery Act and the National Recovery Administration (the Blue Eagle thugs – struck down by the Supreme Court in 1935) – which was all based on FASCIST ITALY.

    And why would Big Business (which was certainly not “Woke” back in the 1930s) seek out General Butler to lead their evil coup – when he was known to HATE Big Business and to have been working with the Marxists for years? Why make an ENEMY military dictator?

    Yes General Butler won a lot of medals – but he was also a LIAR, and what he said about Central America was also lies.

    The anti American “Freedom Fighters” he supported were a collection of savages – bandits (and worse).

    Almost needless to say…. some of our libertarian brothers and sisters take the words of General Butler as gospel, because they depict the United States as evil (out to “oppress” and “exploit” people for the benefit of “the capitalists”).

    Still one good thing about savages – people such as MS13 (motto “Rape, Kill, Control”) at least they know what “Social Justice” actually means (see their motto) and they do it with their own hands. They do not pretend to be nice.

  • bobby b

    And now, Iranian missiles are flying from inside Iran to US bases in Iraq.

    Interesting times . . .

  • Rich Rostrom

    Niall Kilmartin @ January 5, 2020 at 6:17 pm:

    In the US, treaties, in which President and senate must concur (and which IIUC cannot be made contrary to the US constitution), become law.

    It would be more precise to say “have the force of law”, equal to the laws passed by Congress. This doctrine led to one of the earliest “states’ rights” cases in the US.

    In the 1820s, South Carolina was well over half slaves. In 1823 or so, white Carolinians were terrified by the discovery of a plot for a slave insurrection in which they would all be killed. The leader was a former slave, Denmark Vesey. South Carolina then took steps to eliminate nearly all presence of “free colored” people in the state.

    One step was the Negro Seamen Act, under which free black crewmen of a ship calling at South Carolina were held in local jails till the ship sailed. However, some of the ships were British, and some of their black crewmen were British subjects. The US and Britain had made a treaty providing that each other’s visiting mariners would have the same civil rights as natives. The Negro Seamen Act clearly violated this treaty, and a Federal judge ruled it void.

    (South Carolina paid no attention, and the xxxxjudge had to flee to the North.)

  • mikee

    I advocate the repeated assassinations of the new leadership of the Iranian Quds forces, again and again, until the job remains open because nobody wants it.

  • William O. B'Livion

    Y’all are missing something.

    Soleimani was a *general*, a member of the military, and hence a *military* leader. He is almost always pictured in uniform.

    Gaddafi also styled himself a Colonel, and hence in the military.

    There is, in combat, no difference between a private and a general.

    Soleimani wasn’t “assassinated” in the political sense. He was killed (essentially) on the field of battle.

  • Nullius in Verba

    “Y’all are missing something.”

    I don’t think so. As I said in my first comment above:

    It depends somewhat on whether the ‘war on terrorism’ is technically a war. If so, the laws of war allow the killing of combatants, which may certainly include leaders directly involved in directing military operations – although it forbids doing so by treacherous or perfidious means (e.g. pretending to be a non-combatant). No problem there. And counter-terrorist conflict is firmly in the grey area on the edge of the laws of war.

    If there was an official declaration of war, you’d be absolutely right and targeting generals actively organising combat would clearly be legal. But technically, the USA is not officially at war with either Iran, whose general it was, or Iraq, whose territory was fired upon and whose militia leader it was. And you can’t kill even soldiers of countries you’re not at war with.

    Terrorism is a legal grey area. It’s illegal in international law, and unofficial/disavowed by those nations who practice it, so the laws of war don’t precisely cover it. Strictly interpreted, the law of war says that it is the responsibility of Iran and Iraq to arrest and try their own criminals for their war crimes, and all the USA can do is apply to the UN and Iran/Iraq to ask that they carry out their obligations, and to make a complaint through the UN if they’re obviously not doing. But Iran/Iraq either deny it’s happening, or claim to be making every effort to catch them while not doing, and it’s very hard to prove or push through the heavily biased and political UN process. But the UN Charter also had a temporary option for the brief interval between one nation illegally attacking another, and the UN getting it stopped, which is the ‘self defence’ clause. Prior to getting the UN to deal with it, a nation can use force to defend itself.

    This is a legal fiction on both sides. Iran are pretending not to be officially sponsoring terrorism, which is a war crime, and pretending not to be able to stop their ‘rogue elements’. The USA are treating the terrorism as ‘warfare’ for the purposes of invoking the self-defence clause, but then not following that through in the UN, and not making the ‘war’ official. The international community don’t want to get involved, as the UN Charter would inevitably require them officially to go to war with Iran (assuming they could prove in the court of international opinion that Iran were doing it, which as the Iraq war demonstrated is harder than it looks), and so are allowing both sides to get away with their diplomatic legal fictions. State-sponsored terrorism is clearly an act of war – so the USA are in the clear on that part. But they’re not following the proper procedure through the UN. (And nobody in the UN wants them to, either). And Iran are being a bloody nuisance, as usual, but Russia and China support them as it keeps the West occupied and distracted from their own interests, and the Europeans have pretty much abandoned armies as a means of international law enforcement and have replaced it with mutual economic interdependence.

    If the UN wanted to argue with the legality of the USA’s actions, they could. But they don’t want to, and they’d be vulnerable in turn to having the USA argue the legality of their actions in not taking enforcement action against Iran (Articles 42-49 of the UN Charter). Legally it’s a grey and very murky area, which for diplomatic reasons nobody is going to contest. But it’s not contested that Soleimani was a combatant, and therefore a legitimate target *if* you’re fighting a war.

  • bobby b

    “And you can’t kill even soldiers of countries you’re not at war with.”

    I believe that the two AUMF’s that remain in effect for Iraq both contemplate military action even absent a declaration of war. (If there were a declaration of war, I don’t think the AUMFs would have been needed.)

    I also believe that a credible argument exists, accepted by both JAG and civilian authorities, that both AUMF’s retain applicability to the present situation in Iraq.

    The 2002 AUMF is summarized by Wikipedia thusly: The resolution authorized President Bush 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.”

    https://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Iraq_Resolution_of_2002

    That remains as Trump’s AUMF mandate from Congress.

    So I don’t think your legitimacy argument holds.

  • Nullius in Verba

    bobby b,

    Legality under US law is a separate matter to legality under international law and the Geneva Conventions. I’m not qualified to say whether the AUMFs are *technically* still valid in US law, but I think that if you were to try that in the court of international public opinion, to claim that UN sanctions justified by the behaviour of Saddam back in 2002 could be used to take out visiting Iranian officials today in 2020, they’d laugh you out of court. You was at war with Saddam’s regime, not the current Iraqi government. Of course, many in the UN argued that it didn’t even justify war back in Bush’s day. But since the new Iraqi government was set up and granted its own sovereignty, the view internationally has been that the continued American military presence has been purely at the request and with the permission of the allied Iraqi government, to assist them in their domestic peace-keeping and law enforcement, in the same way you have military forces stationed in Germany or the UK. As such, had the Americans taken out Soleimani on behalf of the Iraqis and with their consent, I think a good case could be made that this was domestic law enforcement. Given that the Iraqi government seems (officially at least) opposed, not so much.

    However, the Iraq war does give a good illustration of how the US is supposed to go about it. Iraq was identified as a threat to international peace and security by the UN, following the proper process. Sanctions were applied. When it became clear (after 12 years of suffering) that the sanctions were not going to work, it was a legally required treaty obligation for all members of the UN to support enforcement action by military means. Those governments who were the deepest creditors of the Iraqi regime breached international law by refusing to do so, but a sufficient coalition of members nevertheless recognised the legal requirement to act and acted in the spirit of the UN Charter, which is where the AUMFs came from. They could only do so, and get away with it, because it was in compliance with and hence implicitly authorised by the UN Charter (but not the UN members). It was allowed because we were legally at war at that time, since the UN’s refusal to cooperate was itself illegal. The UK would not have joined in unless this was the case.

    Governments can’t legally kill the citizens of other countries abroad if they’re not at war with them, not even if they’re soldiers. It’s not your country. You’re not the elected government of it. You don’t have jurisdiction. You only get to operate in Iraq and other Middle Eastern countries on behalf of, and with the consent of, those governments whose jurisdiction it is.

  • bobby b

    “Legality under US law is a separate matter to legality under international law and the Geneva Conventions.”

    My short answer to this is, we have not reached the day when matters of US security and defense have been ceded to determinations by non-US actors. So long as “national security” is shown to be impacted, the UN has no power to overrule US decisions.

    “You only get to operate in Iraq and other Middle Eastern countries on behalf of, and with the consent of, those governments whose jurisdiction it is.”

    Just as the Allies could only operate in Germany in 1944 with the consent of the German government?

    Your view of international law remains aspirational in nature.

  • I’m not qualified to say whether the AUMFs are *technically* still valid in US law, but I think that if you were to try that in the court of international public opinion, to claim that UN sanctions justified by the behaviour of Saddam back in 2002 could be used to take out visiting Iranian officials today in 2020, they’d laugh you out of court. (Nullius in Verba, January 11, 2020 at 1:52 pm)

    Some would no doubt treat that argument with loud contempt but others would say that if they have not been formally repealed and did not have explicit expiry dates then they remain valid. One question is: when Obama withdrew US troops from Iraq and/or when he returned them to help deal with the not-so-JV team, did the UN (and/or the Iraqi and US governments) formally rescind or qualify anything, or was it status quo ante. There is precedent (during and long after WWII) for foreign troop presences to be governed by agreements made (or imposed) in long-defunct circumstances.

    If, as bobby b notes, they are still valid in US law then I think the US would instantly laugh out of court any argument that could not demonstrate a highly-explicit UN formal public revoking or sunsetting of them.

  • Nullius in Verba

    “So long as “national security” is shown to be impacted, the UN has no power to overrule US decisions.”

    But the US *decided* to give the UN that power. The UN Charter was *written* by the USA. This was the USA’s decision.

    It’s like saying that if it impacts national security, the government shouldn’t have to obey the law. (Topical!) That’s an attitude that a lot of governments do indeed have. I’m a bit surprised to see it here, though. Patriotism is a wonder.

    “Just as the Allies could only operate in Germany in 1944 with the consent of the German government?”

    No, like the way the Allies could only operate in Germany in 1939 with the consent of the German government. In 1944 they had already declared war.

  • Nullius in Verba

    “One question is: when Obama withdrew US troops from Iraq and/or when he returned them to help deal with the not-so-JV team, did the UN (and/or the Iraqi and US governments) formally rescind or qualify anything, or was it status quo ante.”

    Like I said, I believe that after the Iraqi government was set up and given sovereignty, all foreign military involvement since has been at the request of the Iraqi government, under their terms. They no longer had any authority based on the UN resolutions or their war on Saddam. That was certainly the impression I got from their public statements at the time.

  • “So long as “national security” is shown to be impacted, the UN has no power to overrule US decisions.”

    But the US *decided* to give the UN that power. (Nullius in Verba, January 11, 2020 at 10:34 pm)

    The US has been a permanent member of the security council, with veto, from the UN’s foundation, so the UN indeed has no power to overrule US decisions without US consent.

    Obviously, one may regardless debate, as we are doing, the various international law defences they can in principle deploy.

  • bobby b

    Nullius in Verba
    January 11, 2020 at 10:34 pm

    “But the US *decided* to give the UN that power.”

    Only subject to US veto, so it really isn’t power after all. “We Are The World” made for a fun song, but the US has decidedly not entered into a world government scheme.

    The US has treated the UN mostly as a Public Relations exercise. We’d like to get UN approval and support for whatever we do. But no US administration has ceded any actual authority over US security interests to the UN, ever. Heck, we don’t even cede criminal court sovereignty over US citizens to the UN.

  • Nullius in Verba

    “The US has been a permanent member of the security council, with veto, from the UN’s foundation, so the UN indeed has no power to overrule US decisions without US consent.”

    Auugh! That’s the point! The US *has* given consent!

    Ratified international treaties are incorporated into American law.

    Article 6 Clause 2 (the Supremacy clause) of the United States Constitution:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    International law embodied in treaties becomes part of American law, and Presidents *are* subject to that. National security is not an excuse. If you don’t regard such a constraint as acceptable, you don’t sign the treaty. Or you withdraw from it. You don’t go round telling the world that the rules don’t apply to you because you’re American!!!, and how many tank divisions does the UN have anyway? That’s not impressing anybody.

    But I fear I’m repeating myself, so I’m going to stop arguing about it.

  • Nico

    NiV: You infuriate yourself as you attempt to infuriate others. The UN has no actual power over the U.S. for the time being, full stop. Whatever is written in whatever UN treaties matters not one whit when it comes to getting the U.S. to actually cede any particular bit of sovereignty to the UN (or anyone else).

    Nobody cares whether this action was illegal under international law. Not even those who pretend to, such as the dems, not when the President is one of theirs (otherwise they pretend, yes, pretend, to care). We’ve seen that movie! We know they don’t care! We know they didn’t care when Obama went into Libya.

    Ditto the anti-war agitprop people: they are only ever anti-war when their guys are not in power. The code pink folks don’t even try much anymore: even they must be bored and ever so slightly embarrassed. Well, I lie. Code pink must be bored, dejected even, but certainly not even slightly embarrassed. Immunity to embarrassment must be a requirement for those wishing to be useful idiots.

    This is just so boring, NiV. Please entertain us. Say something new.

  • Actually, Nico, I would mildly disagree. Even from the PoV of bobby b

    The US has treated the UN mostly as a Public Relations exercise. We’d like to get UN approval and support for whatever we do.

    and even granted that in practice the UN disrespects its own international law and votes politically (as Nullius noted above in regard to some cases), it remains a doable intellectual exercise, of intellectual interest to some, to assess how well the US could in logic be granted its PR goal, even if in the real world the UN has a lot in common with a CNN newsroom as regards noting it. Nullius in Verba’s first comment (January 5, 2020 at 12:08 am) lists a range of US defences, but not including the UN authorisations of use of military force that bobby b later raised and which Nullius thinks have lapsed. Very much in line with the rather technical, intellectual exercise, not very important in the real world, character of the whole discussion, I responded by questioning whether one could prove they had been formally rescinded. And I both note the way US treaties become equivalent to US law and how the US veto nullifies impact of this.

    I agree it may be time to draw this discussion to a close but I would not say it was useless. If you find yourself arguing with some “the US is a criminal in international law” lefty, you could use some of its points. And it is reasonably On Topic.

  • Nullius in Verba

    “NiV: You infuriate yourself as you attempt to infuriate others. The UN has no actual power over the U.S. for the time being, full stop.”

    I’m not sure why this is proving so hard to understand. Let’s try this. Which of the following statements do you disagree with?

    1. The President has to obey the Constitution and laws of the United States of America – his actions are constrained by them. He can be impeached, or blocked by the courts, if he breaks them.

    2. The Constitution says that laws and international treaties made under the authority of the United States are the supreme law of the land and binding on all its courts.

    3. The UN Charter is a treaty agreed to under the authority of the United States, per the Constitution.

    4. Therefore (logically) the UN Charter is part of the supreme law of the United States, binding on the nation as a whole, its courts, its military, and its President.

    I’m not sure why we’re going in circles on this – that’s usually a sign that one or other of us is misunderstanding what the other is really talking about. Do you mean that treaties are not binding on the government in the same sense that NO law is binding, because they can always retrospectively CHANGE any laws (or amend any bits of the Constitution) they disagree with or don’t want to obey? Or do you mean that laws are not binding on America (or governments in general) in the sense that nobody is big and strong enough to enforce them if the President chooses to break them? Or do you really mean that whenever the US signs international treaties it secretly has its fingers crossed behind its back, and always reserves the right to ignore them whenever it chooses?

    Is this power to break the law in the United States (what the US Constitution declares to be “the supreme Law of the Land”) a power specific to the President, or to the US government, or to any American citizen? And is it specific to international treaties, or does it also apply to federal law and the constitution? Can the President only break US law with respect to foreigners, or does this also include US citizens?

    Because it’s not that I’m “attempting to infuriate” anybody – it’s that I’m seriously confused as to why this is even an argument.

    And as a citizen of another nation, I’d be concerned if it turned out America thought it wasn’t legally bound by any international treaties it signed! There’d be no point in doing this trade deal Trump keeps promising us, if that’s the case. There’d be no point in even signing contracts with American companies, if they can’t be enforced. It would suddenly become very dangerous for anyone walking down Fifth Avenue in New York. It would change everything.

  • bobby b

    Niall Kilmartin
    January 12, 2020 at 9:40 am

    “Nullius in Verba’s first comment (January 5, 2020 at 12:08 am) lists a range of US defences, but not including the UN authorisations of use of military force that bobby b later raised and which Nullius thinks have lapsed.”

    I have to jump in here to state that the Authorization of Use of Force In Iraq (2002) was a joint resolution passed by the United States Congress in October 2002. It has nothing to do with the UN. It remains in effect today, as it had no sunset provision and Congress has not rescinded it. It authorized the President to take military action in Iraq in defense of “national security”, which leaves enough wiggle room for interpretation to fit the US military forces through it, as several Presidents have now done.

    The US “prefers” to secure UN approval of its military acts, because it makes the rest of the world feel better and it boosts the domestic perception of the goodness of the party fighting to use the force if it gets the “international community” on its side, but handing off decision-making authority over things that affect our security and safety and military wellness to anyone outside of this country has been another third rail of politics – like the subway power rail, step on it and die. We’all still see the UN – treaties or not – as a PR operation that has been taken over by the whackos and nuts. (“Let’s pick the top eight most awful countries and place them in charge of supervision of awful countries.”)

  • bobby b

    “2. The Constitution says that laws and international treaties made under the authority of the United States are the supreme law of the land and binding on all its courts.”

    No. See supra. Quite a lot of supra, as a matter of fact.

    “Is this power to break the law in the United States (what the US Constitution declares to be “the supreme Law of the Land”) a power specific to the President . . . “

    Pretty much.

    “And as a citizen of another nation, I’d be concerned if it turned out America thought it wasn’t legally bound by any international treaties it signed!”

    The US considers itself to be bound by treaty, up until the point that that treaty requires action that the President considers to place our security (??) at risk. The USSC has, many times, refused to intervene when Congress has objected to the president acting in derogation of treaty for at least facially-colorable security purposes.

  • Although Blair’s supreme court (soon to have its wings clipped, I hope) sort of indirectly pretended otherwise over issuing article 50, in the UK treaties are not laws in and of themselves – they are promises by the executive. Parliament must pass laws if the treaty seems to require laws to be passed and Parliament can revoke any such laws in the same way as other laws. I have said enough above about the US approach being a conscious change from the UK division of powers, made by the founding fathers. So

    “as a citizen of another nation, I’d be concerned if it turned out America thought it wasn’t legally bound by any international treaties it signed!”

    seems questionable since the US is merely in the formal position of that other nation, the president being able to do by the excuse of ‘national security’ what our government can do on any excuse.

  • Nullius in Verba

    “No. See supra.”

    Specifically?

    “Parliament must pass laws if the treaty seems to require laws to be passed and Parliament can revoke any such laws in the same way as other laws.”

    Yes, so far as I know all nations do it this way. The UK has to pass a law for each treaty individually. The US incorporates all authorised treaties into domestic law automatically through the Supremacy clause. International law is translated into domestic law by the process of ratification. Domestic law is binding.

  • bobby b (January 12, 2020 at 11:14 am), you are right: the AUMFs were US law, pursued in a context of seeking UN approval. Thus the UN could not formally rescind them, only indicate that the approving context was withdrawn, but not (without US consent) in any way requiring a security council vote. They appear valid defence in US law against any attempt to use US treaty law against the assassination (supposing, just for the sake of argument, that it were otherwise possible).

    The UK has to pass a law for each treaty individually. (Nullius in Verba, January 12, 2020 at 12:04 pm)

    Historically, it is much less one-for-one than that phrasing implies. One treaty might require several laws and still be mainly about much that was not controlled by any of them. Another may have no laws passed at all, yet be a valid treaty for all that.

  • “Chester Draws” made a very relevant point:

    There is a convention that political leaders are not killed.

    There is also a convention — literally — that embassies are not to be attacked. Iran broke that one first. And then again recently.

    That fact alone, that until now the Islamic Republic of Iran got away scot-free with invading an embassy and kidnapping diplomats, made me much more willing to approve the unconventional killing of a representative of that government. Let those who boast that the rules do not apply to them learn that in that case the rules do not apply to them.

    This is also known as the Carter Doctrine. Prior to 1979, the seizure of embassies and diplomats was considered an act of war. After the advent of the Carter Doctrine, not so much. More’s the pity. It’s been far past time that this particular doctrine was laid to rest. Civilized nations DONT SIEZE EACH OTHERS DIPLOMATS OR EMBASSIES. Once you move beyond that, everything becomes permitted. Thus it is permissible and acceptable to kill senior members of government of the offending nation.

  • Nullius in Verba

    “Historically, it is much less one-for-one than that phrasing implies.”

    Agreed. My point is that a treaty is considered ‘ratified’ only when it is incorporated into enforceable domestic law. That might be by way of a pre-existing law (or Constitutional clause), by way of a single enabling law, or by ways of dozens of specific implementing laws. (Or if it’s a non-binding treaty, no law may be required.) Only when it has been so incorporated can you say you have ratified it, and gain internationally the protections, powers and advantages agreed by the treaty.

    Any government can pass new laws contradicting an international treaty, and thereby de-ratify it. (Or a court case may demonstrate it was never properly ratified in the first place.) By doing so you may lose the obligations, but also all the advantages of the treaty. So for example, if you de-ratify the UN Charter, you may well lose your permanent seat on the UN Security Council, and the veto that goes with it. That’s a political decision, of course, and within the proper powers of Parliament or Congress. But you can’t have it both ways. Either you’re bound by the treaty and a member of the UN, or you’re not.

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