Proof of the Unconstitutionality and Illegality
Being in and Using Force in the Mideast
(Updated August 31, 2011)
1. The Constitution means exactly what it says. In legal terms this means: If a constitutional
provisional is plain and unambiguous, we do not construe it but apply it as written
. As shown in
attachment A, the framers of the U.S. Constitution clearly intended that the president not have
the authority to wage any acts of war without Congress specifically declaring war.
As President James Madison once said:
“War ... should only be declared by the authority of the people, whose toils and treasures are to support its burdens, instead of the government which is to reap its fruits... Testimony of all ages forces us to admit that war is among the most dangerous enemies to liberty, and that the executive is the branch most favored by it of all the branches of Power.”
2. In September/October 2002, President Bush presented a proposed use-of-force-against-Iraq resolution to be acted on by Congress. When the House of Representatives debated this resolution, Congressman Dennis Kucinich made the case for NOT going to war. He prepared a paragraph by paragraph Analysis of the Joint Resolution on Iraq pointing out “Key Issues” which argued against Congress voting to go to war. He distributed his analysis, personally, to over 200 members of Congress from October 2, 2002 until October 10, 2002 when the vote occurred.
3. The Authorization for Use of Military Force Against Terrorists (Pub. L. 107-40, 115 Stat. 224, enacted September 18, 2001), and "AUMF" ("Authorization for Use of Military Force Against Iraq Resolution of 2002") approved by the House and Senate in October, 2002, were obtained by fraud and has been used to commit fraud and are unconstitutional, null and void.
4. Without a formal declaration of war, it is illegal for Congress to authorize or appropriate money for the Iraq War or the so called war on terror and it is illegal for the President wage such wars, use force or conduct any military operations in Iraq or any country in the world.
5. The items in italics below are excerpts from the February 20, 2006 article “The Constitution Limits the President Even as "Commander in Chief", by Dr. Edwin Vieira, Jr., Ph.D., J.D. (Available at http://www.citizensforaconstitutionalrepublic.com/Vieira2-21-06.html)
6. In his article Dr. Vieira makes it clear that:
The President, even as "Commander in Chief," has a circumscribed and contingent authority dependent upon mandates from Congress not some limitless "inherent" power
Merely labeling some situation a "war" cannot call the President's rightful powers as "Commander in Chief" into operation
according to strict constitutional logic, a "war on terror" is an existential impossibility--if only because "terror" is a tactic, not a country; and "terrorists" do not constitute one or more independent nations, but at most are mere bands of private criminals.
Congress has never exercised its constitutional power ... to declare a "war on terror."
Congress has not declared "war" on Iraq, either
This absence of Congressional action is consequential, because only Congress has the power "[t]o declare War." And the Constitution plainly understands that, absent such a declaration from the only source authorized to pronounce it, a "War" cannot be conducted legally by the United States.
the Constitution denies the President any pretense of power himself either "[t]o declare War" or to involve this country in actions usually appropriate only after such a declaration has been made. (For example, ordering American soldiers intentionally to kill the soldiers of some other nation, ... )
an attack by one nation upon another independent nation not justified by "the common defence" of the former constitutes a crime under international law, as settled at the Nuremberg and Tokyo War Crimes Trials."
a declaration of "War" by the United States against some other nation in the course of "the war on terror" ... certainly cannot be rationalized by an airy appeal to "spreading democracy" in foreign lands. ... Nowhere does the Constitution empower the United States to further naked "democracy," either at home or abroad, by any means, let alone "War."
Neither could a declaration of "War" be justified simply on the grounds of defending some other country.
even if the leaders of some other nation were planning to attack the United States in the indefinite future, a declaration of "War" now would be beyond Congress's power. ... preemptive war has been considered illegal for several hundred years.
Nowhere does the Constitution empower Congress to exercise "force" itself, or to license the President to do so.
because he is "Commander in Chief" "of the land and naval Forces" and of "the Militia of the several States," the President is bound by such rules and regulations Congress provides for those entities.
If the President does disregard or violate any valid Congressional directive or prohibition relating to "the Government and Regulation of the land and naval Forces" or the Militia, then to that extent he fails to perform his duty to "take Care that the Laws be faithfully executed.". If his failure is intentional, the President violates his "Oath or Affirmation * * * that [he] will faithfully execute the Office of President of the United States, and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States." Such perjury constitutes a "high Crime[ ]" for which the President may--and should--be impeached, convicted, and "removed from Office."
The case is even clearer if the agency involved in the President's misdeeds ... is a purely civilian agency, such as the NSA. ... a civilian agency is entirely a creature of Congress, which Congress may create or refuse to create, and to which it may give such powers, or from which it may withhold such powers, on such conditions, as it chooses. With respect to such an agency, the President enjoys no authority other than what Congress delegates to him--and self-evidently no power that Congress withholds. ... Should the President venture one Angstrom Unit beyond the boundaries of the statute that creates the agency and defines its authority, he would not be "tak[ing] Care that the Laws be faithfully executed." And if this misstep were intentional, he would be subject to impeachment, conviction, and removal from office
"self-defense"--whether on the part of an individual or a nation--is a specific legal conception, not a open-ended license simply to shoot first and ask questions later. At the minimum, the use of deadly force in self-defense is justified only in response to some imminent, unavoidable peril. The defender must employ only the amount of force reasonably necessary to stop the attacker. And the defender must cease the use of force when the threat has been thwarted, not continue to apply, let alone to escalate, force so as to turn his own actions from self-defense into aggression.
Moreover, even self-defense would not necessarily entail "War," unless Congress so declared.
the contention that "the war on terror," as it is being waged, has any sound constitutional basis at all is bogus.
Congress cannot authorize the President to take any actions that violate the guarantees of, say, the Second, Fourth, Fifth, Sixth, and Eight Amendments. Neither can the President's own powers (whatever they may be) override these, or any other, constitutional limitations.
the President cannot have "inherent" authority to declare anyone to be an "enemy combatant," without recourse to judicial review.
In sum, the arguments that all too many "conservative" media personalities typically put forward these days to infuse the Presidency with Fuhrer-like powers are the products of constitutional illiteracy. They are, however, not just nonsense, but extremely dangerous nonsense--because they will surely be trotted out in the future in support of a comprehensive police state
"situation constitutionalism"--the notion that the Constitution may be creatively interpreted to fit some immediate political agenda, rather than all political agendas being required to square with the original intent of the Constitution--is a Sirens' song that will surely lure America's ship of state onto the rocks of destruction. And far sooner than most Americans imagine.
Defensive and Offensive War Powers and Responsibilities of Congress and the President and the National Constitutional Role of the National Guard (Militias)
The U.S. Constitution clearly shows that:
• The president has no inherent war making powers or even the authority to make the rule or regulations for the conduct of war or handling of prisoners. As Commander-in-Chief he is responsible for executing the Laws, Rules and Regulations made by Congress.
• The president does not have the authority to wage any acts of war without Congress specifically declaring war.
• Standing armies are not permitted
• State Militias now called the National Guard provide everything required of a standing army
“War ... should only be declared by the authority of the people, whose toils and treasures are to support its burdens, instead of the government which is to reap its fruits.”
“Testimony of all ages forces us to admit that war is among the most dangerous enemies to liberty, and that the executive is the branch most favored by it of all the branches of Power.” President James Madison
1. War Powers and Responsibilities granted to Congress by the Constitution under Article I. - The Legislative Branch, Section 8 - “The Congress shall have Power:”
To Provide for the common Defense [Not offense]
To Define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
To make all Laws
which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.
a. War powers and responsibilities granted to the President by the Constitution are very limited and are:
i. Article II - Section 1:
(1) The executive Power shall be vested in a President of the United States
(2) The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; ...
ii. Article II - Section 3
(1) The President “shall take Care that the Laws [made by Congress] be faithfully executed”.
Please note that:
“Shall” is a mandate and “faithfully” executed implies that the spirit and intent of the “Laws” are executed. This mandate is all encompassing and covers all the private and public sectors, the legislative, judicial and executive branches of government, corporations, the election laws, banking laws. The president has the entire executive department to support him in executing this massive and critical responsibility.