There is now little doubt that the U.S. will soon act to remove Saddam Hussein from power. President Bush has made his case to the American people, and has been compelling enough to bring a firm majority, both in Congress and the country, over to his way of thinking.
Having lost the basic policy debate, opponents of U.S. military action against Iraq now seek refuge in a number of insupportable legal arguments by which they hope to tie the president's hands. Perhaps the most desperate is that U.S. law forbids an attack on Iraq, even with a broad congressional resolution authorizing the use of force, unless the U.N. Security Council also passes a resolution specifically permitting war.
The reasoning here is that the U.N. charter forbids the use of armed force, absent a direct attack on a state's territory or Security Council action, and, because the charter is a treaty ratified by the U.S., it is also the law of the land, binding on both Congress and the president. Therefore, unless the Security Council authorizes military action against Iraq, the U.S. cannot itself -- regardless of what resolutions Congress may adopt -- attack without violating its own law. These claims are unsupported by either the Constitution or the U.N. charter.
The U.N charter is, of course, a treaty. And the Constitution does state that treaties, like the Constitution and federal statutes, "shall be the supreme Law of the Land." But the meaning and purpose of this phrase emphatically was not to limit the power of the president, or Congress, in carrying out U.S. foreign policy. The balance of the pertinent constitutional provision, Article VI, clause 2, makes this plain in stating, "and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."
In short, the federal Constitution makes treaties the "supreme law of the land" so that they are binding on the States that, under the Articles of Confederation, did not necessarily consider themselves bound by "national" treaties with foreign powers. The fact that the president is free to terminate a treaty on his own authority, even though he could not similarly "terminate" a federal statute, underscores the proposition that treaties do not impose insurmountable constraints on the executive branch.
The language of Article VI, clause 2, in no way limits the ability of the president to formulate and implement U.S. foreign policy, including the interpretation and application of treaties such as the U.N. charter, or of Congress to declare war, or authorize the use of force without such a declaration. These are constitutional powers, and cannot be constrained by later enactments, regardless of whether those provisions take the form of federal statutes or international treaties. The Constitution trumps. As the Supreme Court noted in a recent case, Breard v. Greene (1998), addressing whether the execution of a Paraguayan national was in violation of the Vienna Consular Convention, "although treaties are recognized by our Constitution as the supreme law of the land, that status is no less true of provisions of the Constitution itself."
To the extent that the president or Congress act in accordance with their constitutional powers, they have not violated the laws of the U.S., even if the result is to derogate from the provisions of a treaty. Such a derogation, even in the case of the U.N. charter, would not constitute a repudiation of the treaty. The U.S. would remain a member of the U.N. and, not to put too fine a point on it, that body's only indispensable member.
Of course, in a case where the U.S. acts inconsistently with a treaty, it may well be in violation of its international obligations, even if it has manifestly not violated its own Constitution or laws. However, in attacking Saddam, even without a new Security Council resolution, the U.S. would not be in violation of its international obligations, and particularly the U.N. charter. Not only has the Security Council already authorized the use of force against Iraq, in Resolution 678, passed shortly before the Gulf War, which remains in full force today, but the charter has fully preserved the right of nation-states to individual and collective self-defense, including the customary international law doctrine of "anticipatory" self-defense. Any military action undertaken by the U.S. against Iraq would both constitute implementation of Resolution 678, and an act of anticipatory self-defense.
The proposition that the U.N. charter does not bar acts of anticipatory self-defense is reinforced by actual state practice since the charter was adopted, which is the most important indication of what international law actually provides. Perhaps the most important contemporary example of the U.S.'s actual use of this right was the Cuban Missile Crisis in 1962. President Kennedy imposed a "quarantine" on Cuba, a warlike action, to prevent the deployment of Soviet nuclear missiles that would have threatened the U.S. once activated, but which did not pose any threat of immediate attack.
Although some opponents of U.S. military action against Iraq have tried to dismiss this instance of anticipatory self-defense, because President Kennedy also sought and obtained the support of the Organization of American States, they have badly misread the precedent. The OAS resolution necessarily was grounded in the legal right of each individual member, including the U.S., to take action in its own defense. International law does not create some greater legal right based on the number of states who act together. If each has the right to use force, then collective action does not expand that right, and if no individual state has that right, then multilateral action cannot create it. For its part, the U.N. charter guarantees the right of self-defense, in response to an actual attack or in anticipation of one, whether it is exercised individually or collectively.
In 1962, the Kennedy administration did both. President Bush may do the same today, as he builds a new coalition to fight Saddam. However, while such a coalition may well increase U.S. firepower and diplomatic leverage against Iraq, it cannot and will not increase its undoubted legal right to act, any more than unilateral action would diminish that right. There are, of course, many who continue to believe that the U.S. should not act against Iraq without specific Security Council approval. That position, however, should be recognized for what it is -- a policy plea -- and not a legal requirement.
Messrs. Rivkin and Casey, attorneys in Washington, served in the Justice Department during the Reagan and first Bush administrations.