What are we doing?

Dear Readers, Article 2(4) of the UN Charter restricts unprovoked attack on a sovereign state except for invasion, an imminent threat of attack, or as authorized by the UN Security Council. We have shredded this bedrock principle of international law. Not only are we global kidnappers (Nicolás Maduro), but we are also international provocateurs in Iran and (as foreshadowed) Cuba.

We are one of the 51 original members of the UN, a signatory to the Charter on June 26, 1945, in San Francisco. The Senate ratified this treaty on July 28, 1945, making it the law of the land. October 24^th is celebrated worldwide as United Nations Day.

We have thrived under the fits and starts of the umbrella of the United Nations. It is an imperfect vessel of international cooperation. It has not ended war – Ukraine and internal conflicts in Africa are prime examples of the UN’s impotence; it has elevated humanitarian discourse.

As a Senate ratified treaty, the UN Charter occupies the highest laws of at the core this country, akin to our Constitution. The UN Charter reaches that deep into our legal essence.

When it comes to acting in compliance with Article 2(4), we have bifurcated our war-making apparatus.  To the Executive Branch, Article II of the Constitution grants Commander-in-Chief powers to the President, as the head of our armed forces. In a nuclear world, hanging on the precipice of supersonic ICBM planet-wide destruction, this authority hangs on the momentary whims of a single person, safeguarded only by the confirmation of launch codes. 

A President has quick-strike response authority to order active conflict when deliberation is impractical. There are restrictions.

Principally, there are Article I Constitutional exclusive responsibilities of Congress. Declarations of War are made by Congress and Congress alone. Franklin Delano Roosevelt orated, “Yesterday, December 7th, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.” This thunderous December 8^th pronouncement was delivered from the well of a joint session of Congress debating a war declaration.

With Korea, President Truman diverged from the genuflection of seeking a declaration of war. He labeled it “a police action,” and we never formally went to war with Korea. Congress meekly condoned it.

Presidents Eisenhower, Kennedy, and Johnson piggybacked on this novel interpretation of modern warfare in Vietnam. None of them sought congressional authorization of this quagmire; nearly 60,000 of our brave soldiers and countless lives were shattered here and abroad; Congress silently permitted this death and destruction.

Finally, Congress acted. It passed the “War Powers Resolution” in 1973.  Henceforth, Presidents have had to brief Congress about military adventures abroad within 48 hours, triggering a 60-day window requiring Congress to approve the mission. This briefing was done with our military activity in Iran – the 60-day clock is ticking,

Congressional muscle is strengthened by its other Article I tools. Congress has the “power of the purse.”  While a President can take action, Congress has to appropriate the funds for it. Military missions are expensive and disruptive to military family lives. Ultimately, Congress controls the purse strings.

Politically, we “rally around the flag.” Congress squirms when a President commits troops, as cutting funds off may leave troops stranded and exposed to enemy fire. It takes courage to instruct a defiant President to bring the troops home “or else.” As unpopular as Vietnam was, Congress never told a President to end our mission in the region.

Relocating our military resources to the Mideast is a presidential prerogative; the same for bombing Iran.  We have not placed “boots on the ground.” The messaging from the Pentagon and White House is muddled.  We are at war, we are not at war; we are engaged in regime change, we are just proactively defending ourselves.

Clarity is needed. We have invaded a country and toppled its command structure, an Article 2(4) violation of the UN Charter and thereby of American law. Military families are strained by new deployments and extended rotations. Billions of dollars are committed in support of this Iranian mission; our military ordinance stockpile is being seriously depleted.

The first War Powers Resolution to end this Iranian excursion has failed in Congress.  It needs to reclaim its Article II authority, debate the mission, demand answers, and, potentially, exercise its legal authority.  We cannot have a King singularly committing us to war.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.