Theologians and Just War theorists should be interested in War Powers by Peter Irons. It goes to the jus ad bellum criteria of Legitimate Authority: only duly constituted public authorities may use deadly force or wage war.
Yet that cage long ago sprang open.'”.
The problem is that, as the theologians would say, there is an inherent tension between the need to act quickly in the face of an immanent threat and Madison’s desire to slow down the decision process in order to prevent the “evils of elected monarchies” To put the question in Just War terms: In a crises, who should be the duly constituted public authority?
Presidents have tended to act quickly, not wanting to wait for congressional approval – and not wanting to see their powers diminished by the legislative branch. Many military strategists now see this failure to seek Congressional approval as the reason why we lost in Vietnam even though we won all the major battles.
The jus ad bellum criteria of Legitimate Authority and Last Resort should be high on the Bishop’s agenda. They (and we) should be thinking hard about the President’s Global Strike Plan. The President has contended that we should be ready to act in the face of an immanent threat. Terrorists, he noted, do not send cards announcing their intent. Thus, the President contents that we should be ready and able to strike first. While this makes sense in terms of prepardness to defend the country, it raises grave moral questions.
Pre-emption can, some theologians find, be compatible with the just war criterion of Last Resort. In order for this to be the case, the immanence of a threat must be morally certain. The recent performance of the intelligence community gives us little confidence on this score.
The need for prompt decision pushes the President towards Madison’s “evils of elected monarchies.” The problem is an old one. Lincoln at least recognized it, going to Congress after he suspended habeas corpus.
My guess is that the Bishops will ignore the question – being busy with topics such as 1) who should decide whether a politician should receive communion; 2) whether or not Harry Potter is a threat to children’s faith; 3) closing parishes in order to pay for their dereliction of administrative duty; and 4) changing the language of the Mass.
Having spent all their time on these issues, they will fulfill their duty to speak by waiting until a national crises occurs. Then they will drag out their Just War Documents and make public statements, unaware of the ambiguities.
Military Ethicists and Army Chaplains, however, are hard at work on the question.
Herb
http://freedomspeace.blogspot.com/2005/04/roots-of-war.html> This is a much more substantive challange to Just War theroists. Again at a prudential level. The requirement for a reasonable level of success, I assume, means rather more than 50.0001%. Thirty percent seems a little low.
If you use it note the carful phrasing because of the limits of his evidence, or you will be eaten alive.
Posted by: hank | August 26, 2005 at 10:16 PM
Herb
I do no think the legitimate public authority problem is as difficult as many people make out. The law in question is not exactly table discussion so it is often approached as a new item when actually there is a well developed law.
Of course this is a “prudential judgment” item just because the “proper authority” requirements are met does not say any thing about the rest of the jus ad bellum criteria.
In International law armed conflict can be divided in to a declared wars and other lawful combat (various names are used.) A declared war requires that the country against whom war is declared be a properly constituted nation state. An easy example is the American Civil War. The Union never declared war on the Confederacy. The Union was of the position that the confederacy was a rebellion and the Confederate government was not legal. If the Union had declared war on the confederacy it would have been acknowledging the legitimacy of the Confederate government and could no longer claim it was in rebellion.
Additionally a declared war has several other attributes. All the citizens of one country is legally and enemy of all the citizens of the other country. There is no geographic limitation on the legal effect. A ship on the high seas can be attacked anywhere. The citizens of the two counties cannot engage in normal commercial relations even in neutral countries. A declared war requires a formal peace treaty to end. It is sometimes described that a declaration of war is not an announcement to fight, rather an announcement to stop talking.
A state of lawful combat can be limited in geographic scope, to whom it applies, be concurrent with negoiations, and ended with a lot less formability. It also provides the means to suppress rebellions or deal with organizations like Al Quaida which no one to give the status of being a lawful nation state.
In my opinion, a declared war in pretty much obsolete in a globalized world with nuclear weapons. But if Congress’s power to declare war is obsolete where does that leave us?
The constitutions give congress the power to raise Armies. That is, pass the law thqt establishes them, laws governing them, and laws governing their use. Congress also votes the budget, which in the case of the Army and Air Force the appropriation cannot exceed two years. In 1953 a very comprehensive law was passed, since added to in the post Viet Nam era. Generally speaking for more than short notice actions that require quick response the President always goes back to Congress for authority.
Every military action that I have looked at since 1953 the letter of the law was scrupulously met.
This is not so much a question of proper authority problem in the meaning of the Just war doctrine. The “I”s are always doted and the “T”s are always crossed. The problem is political will; Congress is usually not willing to conduct aggressive reviews of the other criteria while bullets are flying.
Of course as we both know from roe vs Wade just because it is legal does not mean it is moral.
Posted by: Hank | August 26, 2005 at 10:04 PM