declare war


The War on Yugoslavia is Illegal

by Fred E. Foldvary, Senior Editor

The President's war on Yugoslavia is contrary to U.S. law on three counts. First, the United States government is waging war, and the President and other U.S. officials have used the term "war" referring to the conflict. The U.S. Constitution in Article I, Section 8, paragraph 11, states that Congress shall have the power to declare war. This implies that the U.S. military may initiate a war only if Congress declares war.

House Joint Resolution 44, declaring a state of war between the United States of America and the Federal Republic of Yugoslavia, was introduced by Representative Tom Campbell on April 12, 1999. It was defeated by 2-427 on April 28. Since Congress explicitly rejected a declaration of war, it is illegal for the U.S. military to be at war in Yugoslavia.

If the U.S.A. is attacked, the President is authorized to use the military to defend the country. This concept was made explicit in The War Powers Act of 1973, Public Law 93-148, also known as the "War Powers Resolution." Under that Act, unless Congress has authorized action, the President is authorized to use the military only in "a national emergency created by an attack upon the United States." The law specifies that unless Congress acts within 60 days, "the President shall terminate any use of United States Armed Forces" in that conflict.

There was no attack on the United States by Yugoslavia, and so under the War Powers Act the President had no legal authority to initiate the war. Moreover, as noted in the Progress Report article "Covering the War, Mainstream Media Fail Badly" ("What's Democracy Got To Do With It?" by Norman Solomon), as of May 25, more than 60 days have passed since the start of the war, and since Congress has opposed a declaration of war and has not granted the President an extension of time under the War Powers Act, the President is in violation of the law.

On April 30, Congressman Tom Campbell of California, along with Dennis Kucinich of Ohio and 15 other members of Congress filed a lawsuit in Federal District Court to require the President to obtain authorization from Congress before continuing the war against Yugoslavia.

The war on Yugoslavia is thus illegal on three counts. First, it violates the Constitutional provision that a war requires a declaration by Congress. Second, it violates the War Powers Act because the war was not in response to a threat to the United States. Third, the 60-day period for conflict without authorization has passed.

The founders of the Constitution of the United States of America wanted to avoid the situation where a king used his power of office to start a war. The President of the U.S.A. is not a Roman Caesar with absolute power, but is to be constrained by the Constitution and by the powers of Congress and the Judiciary.

Congress has also been deficient in not acting to deny funding for the war in the absence of explicit authorization for the war. Much of the American public has also been ignorant and apathetic about the illegal nature of the war, although the opposition to the war itself is increasing. The government of Yugoslavia is indeed guilty of murder and expulsion, of violating the human rights of the Kosovars, but two wrongs don't make a right, and the ends do not justify the means if the means are also immoral and illegal.

It would, in fact, be dangerous for the President to declare war, since that would both authorize a full scale assault on the people of Yugoslavia and also grant the president vast powers over civil liberties and the U.S. economy. The Constitutional requirement of a declaration of war was intended to authorize war only when Congress, and by implication the American citizens, are in favor of the war, normally because the United States is threatened by foreign powers.

It is not hypocrisy for Congress to pass law after law, and for the President to request ever more laws, when they are not implementing the Constitution and a major law? It will take weeks for the legal action by Tom Campbell and the others to go through various courts. Meanwhile, the best hope for a restoration of legality in warfare is for the American public to become informed and aroused.

There is also a deeper issue that cuts to the core of our system of government: why is the Constitution and law being disregarded? Our very system of overly centralized government and mass democracy is at fault. That's why, as I argued in my editorial of October 1997, Democracy Needs Reforming. Only when there is a genuine rule by the people will government abide by law and not wage illegal and unwise war.

-- Fred Foldvary      

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Copyright 1999 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.