Immoral, Unconstitutional War; D. Mayer

The Clinton administration's decision to bomb Yugoslavia, under the rubric of NATO, is an incredible foreign policy blunder. Not only is the situation there none of the United States' business, but our participation in the NATO bombings also threatens to destabilize eastern Europe far more than anything done by Slobodan Milosevic's government. (Indeed, David Mayer is professor oflaw and history at Cap ital University in Columbus, Ohio. He is the author of The Constitutional Thought of Thomas Jefferson (University of Virginia Press). 8 it can be argued that the bombing of Kosovo worsened the so-called "ethnic cleansing" and other atrocities being committed by Serbian orYugoslav forces in that province.) Critics of the United States and of the West generally can point to the bombings as clear evidence of Western "imperialism." Undoubtedly, many communists and other leftists in the new NATO member nations of Poland, Hungary, and the Czech Republic are doing just that possibly setting back for decades whatever progress in foreign relations the United States has made in eastern Europe since the fall of the Soviet Union.

Regardless of the outcome of the war itself politically-whether it will bring about the demise of Slobodan Milosevic, and at what price-the lasting importance of the war to Americans will be its significance constitu tionally. What it reveals is that the actual bal ance of power in matters of foreign policy has shifted decisively toward the President, and that Congress has failed utterly to function as the institution the Framers of the Constitution intended it to be. What that signifies, in terms of the concentration of unchecked power in the White House, should be a matter of pro found concern to all Americans. The Wisdom of the Framers The Framers of the Constitution gave the power to declare war to Congress, and not to the President, because they recognized that the people have a vital stake in war: it involves the expenditure ofAmerican tax dol lars as well as the loss of American lives. For that reason, Congress· must be involved in making the initial decision to commit Ameri can forces abroad. As James Madison explained in 1793, the momentous questions of war and peace properly belong to the legis lature, where they can be publicly debated by the people's representatives.

The decision to declare war-that is to say, the decision to initiate the use of force aggres sively and not in self-defense-is a decision that only the Congress can make. The debate over war-indeed, the debate not only over strategy (war versus economic sanctions) but also whether any American intervention is justified, as a matter of policy-should have taken. place publicly in both houses of Con gress, not in the Oval Office among a clique of presidential advisers. By committing the United States to a course that led inevitably to war without the explicit authorization of Con gress, President Clinton committed an act that violates the Constitution. Congress's exclusive power to declare war under Article I, Section 8, is not the only pro vision of the Constitution violated by Bill Clinton's war in Yugoslavia. Arguably, the Yugoslav war also violates the first clause of Article I, Section 8, which limits Congress's taxing power-and hence, the U.S. govern ment's spending power-to matters that con cern "the common Defence and general Wel fare of the United States." Nothing in the Constitution authorizes the President, even with Congress's consent, to use the military forces of the United States not for national defense, but for offensive military actions in Europe-in effect to transform the U.S. mili tary into a kind of Peace Corps with guns.

Moreover, Article II, Section 2, provides, "The President shall be Commander in Chief of the Army and Navy of the United States." By committing U.S. troops to a NATO opera tion, under NATO command (whether or not the NATO commander is an American), Clin ton has abdicated his legitimate power as commander-in-chief (the power to actually wage war) in the name of asserting a fictitious power as commander-in-chief (the power to 9 ~ enter into war) that in fact usurps Congress's legitimate authority. Some legal scholars have advanced the extraordinary argument that Congress has neither a constitutional obligation nor a right to declare war before the United States joins in a "police action" sanctioned by either the United Nations or NATO. They argue that U.S. ratification of the U.N. Charter and of the North Atlantic Treaty after World War II made us part of a "new world order" in which mem ber nations can no longer "make war," in the classic sense. The implication of this argu ment is that the Article I, Section 8, grant of the war-making power to Congress has been rendered obsolete since 1945. Even with con currence of the Senate, however, the President cannot amend the Constitution; only the peo ple can do that, according to the amendment procedures prescribed by the Constitution itself. Until that happens, the Constitution binds all the branches of government, espe cially the President, who has no higher oblig ation than his duty to adhere to the oath he swore, to "preserve, protect, and defend" the Constitution.

Charter Violations NATO's attack on Yugoslavia, moreover, violates both the United Nations Charter and NATO's basic charter, the North Atlantic Treaty. Article 2(4) of the U.N. Charter requires that members "refrain in their inter national relations from the threat or use of force against the territorial integrity or politi cal independence of any state." Similarly, Article 2(3) states, "Members shall settle their international disputes by peaceful means." No matter how great a thug Slobodan Milosevic may be-no matter what atrocities the Ser bians commit in Kosovo-no member of the United Nations has a right, under the U.N. Charter, to initiate the use of force against Yugoslavia. Article 51 of the Charter does recognize the "inherent right of individual or collective self-defense" for all members, but the bombing of Belgrade is not self-defense; it is an act of aggression. Similarly, Article 5 of the North Atlantic Treaty contemplates use 10 THE FREEMAN/IDEAS ON LIBERTY • WAR IN THE BALKANS • JULY 1999 ~ ;)t( )( ~ ;)t( )( >< )( ~ of military power only defensively, not offen sively; it provides, "an armed attack on one or more [members] . . . shall be considered an attack against them all," clearly a defensive provision. Needless to say,Yugoslavia has not attacked any NATO member.

NATO was created for the purposes of mutual defense (by the United States and western European nations) against a hostile Soviet Union. With the Soviet Union no longer existing, one might ask whether NATO itself is today obsolete. Even if we assume that Russia poses a great threat, NATO'slegit imacy still rests on its fundamental purpose as a defensive alliance. Nothing in NATO's char ter allows it to become a general European police force, which is what it has now become. Advocates of presidential war power (whether defending George Bush's war in the Persian Gulf or the various actions in which Bill Clinton has committed U.S. military forces in such places as Haiti, Bosnia, and now Kosovo) also have asserted that the need for an international consensus prior to a NATO-or U.N.-sanctioned "police action" provides a sufficient check on presidential power. The validity of that argument, howev er, is belied by these presidential military actions themselves. It is not surprising that both Presidents Bush and Clinton bypassed Congress and the American people, choosing instead to first assemble international support.

Of course other nations will approve "police actions" staffed almost entirely by U.S. troops and funded almost entirely by U.S. taxpayers. To be effective, the check on presidential powers must be given to Congress because Congress is directly representative of the American people, who must pay for these "police actions" with their taxes and their blood. International politics cannot adequate ly substitute for the checks and balances of the Constitution. The Framers of the Constitution carefully devised a scheme of separation of powers and checks and balances to minimize the dangers of concentrating too much power in the hands of anyone person, or group of persons. They would be appalled at the resolutions in Con gress expressing unqualified support of the president in whatever actions he should decide to take-resolutions that reveal the degree to which Congress has failed to fulfill its constitutional obligation to act as a check on presidential power. Nothing could be far ther from the intent of the Framers. As Thomas Jefferson explained it in 1798, "Free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power. . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

The Other Costs of War American involvement in war is too impor tant a matter to be left to the private delibera tions of the president and a small group of advisers. Surely the lives of tens of thousands of Americans lost in Korea and Vietnam wars in which other presidents unilaterally embroiled the country-bear eloquent wit ness to the other, noneconomic costs of war. Just as surely, the domestic turmoil that resulted from those conflicts, particularly Vietnam, illustrates the danger of presidents' making commitments that the American peo ple do not wholeheartedly support. Bill Clinton and his apologists (who include many conservatives as well as so called "liberals") defend U.S. involvement in Yugoslavia with the argument that the United States, as the world's only superpower, has a duty to use its military force for "humanitari an" purposes. The argument assumes that Americans should take the responsibility for the world's troubles simply because their country is a superpower. But the United States is a superpower-and, indeed, also is the world's richest nation-because its legal and constitutional system more fully protects free market capitalism and the rights of the indi vidual than any other system anywhere in the world. Americans should not feel guilty about their wealth or power; they've earned it. And simply being successful does not make a nation responsible for the problems of other nations, just as being successful as an individ ual does not make one responsible for the problems of other individuals. The fundamen tal rules of morality apply equally to nation states as to individuals; and the basic rule of morality-the only rule of morality based on reason rather than emotion or mysticism-is the precept "do no harm to others." Rather than following that basic rule of good behav ior (for nation-states as well as for individu als), Bill Clinton has led the United States into acts of aggression that violate the princi ple. And our so-called "humanitarian"

effort-like similar assumed "humanitarian" policies domestically-is in fact exacerbating the problem, for the NATO bombing com pounds the atrocities being committed on the people of Kosovo. Altruism Makes Bad Policy Morally, the essential flaw in Clinton's war on Yugoslavia is the principle of altruism that underlies it. By "altruism," I mean the moral code that asserts that people should sacrifice their own happiness or well-being to the hap piness or well-being of others; the moral code that preaches that self-interest is bad but that self-sacrifice is noble, that the proper ethical posture of human beings is that of sacrificial animals to the supposed "good" of society, or some other collective. This moral code of altruism is a very old, traditional moral code that has been responsible for virtually all the evil, all the suffering, that has occurred throughout human history. It is the same moral code that underlies the atrocities being committed in Kosovo itself, where people on both sides of the ethnic conflict (Serbian and Albanian alike) ignore the rights of individu als and instead regard people as significant only as members of a collective (in this case, an ethnic group).

Tyrants throughout human history have jus tified their tyranny by appealing to some form of collectivism. The pharaohs ofancient Egypt, the emperors of Imperial Rome, and the kings of medieval Europe all called upon their people to sacrifice their individual well-being to that IMMORAL, UNCONSTITUTIONAL WAR 11 )r< )()( )r< )( of the collective; and their accomplices were the priests, who appealed to superstition and mysticism-the supposed will of the one or more gods-to convince the people that it was a "sin" not to sacrifice their well-being to the thugs who ran the government. In more recent times, totalitarian dictators on both the "left" and "right"-Lenin, Stalin, and Mao, as well as Hitler, Mussolini, and Peron-similarly have preached that the indi vidual is nothing, that the collective is every thing. They too have been supported by priests of sorts, namely, so-called "intellectu als" who preach either a sectarian or secular form of civic religion that also condemns as sinful the individual's pursuit of his own hap piness or self-interest and extol a "duty" to serve the state. As F. A. Hayek has shown, "the road to serfdom" has taken many paths in the twentieth century. The call for "national service" that Bill Clinton and like-minded collectivists (again, both on the left and the right) made at the President's Conference on America's Future in April 1997 differs from the philosophy of other twentieth-century totalitarians only in degree, not in kind.

The principle of altruism makes bad policy, whether in domestic law or in foreign rela tions. In domestic law, it has made possible the welfare state and all the problems associ ated with it-not only economically but socially and morally-as David Kelley ably shows in his excellent new book, A Life of One s Own. In foreign relations, it has made possible a series of wars in the twentieth cen tury, beginning with World War I (and Woodrow Wilson's campaign to "make the world safe for democracy"), in which young Americans were told it was their duty to sac rifice their lives not for their own country's freedom or security, but for some fancy of the foreign-policy wonks who advise the Presi dent. It's time that those of us who truly "sup port ourtroops"-those of us who believe that the lives of young Americans are too precious to waste on the follies of presidential advis ers-show our support for them by calling for the immediate end of this immoral and uncon stitutional war. 0 WAR IN THE BALKANS The KosovoTangle by Gary Dempsey • History B ordering Albania and Macedonia, Kosovo is the southernmost province of present day Serbia, which, together with Montenegro, makes up what remains of the Socialist Feder al Republic of Yugoslavia. Kosovo was origi nally populated by the Illyrians, an ancient people who inhabited the western part of the Balkans from about 2000 B.C. The earliest known Illyrian king was Hyllus, who died in 1225 B.C., and the last was Gentius, who was defeated by the Romans in 165 B.C.l Although it is a point of anthropological debate, many modern Albanians contend that they are the direct descendants of the ancient Illyrians and thus the original inhabitants of Kosovo.