The oft-repeated declaration -- "We are a nation of laws, not men" -- expresses a bedrock principle of our country. It signals our resolve to be governed by laws and legal process, not by the impulses of individuals in power.

The rule of law seems to mean little, however, to President Bush. Despite his address to the United Nations seeking UN action against Iraq, he continues to insist on the United States' right to launch war against Iraq, with or without authorization from the UN Security Council.

As a signatory to the UN Charter, the United States is bound by the Charter's requirements. Article 39 specifically gives the UN Security Council, not individual nations, the authority to determine "the existence of any threat to the peace, breach of the peace, or act of aggression", and the authority to "decide what measures shall be taken ... to maintain or restore international peace and security."

Article 42 authorizes the Security Council, if non-military measures fail, to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." No nation can take it upon itself, without Security Council approval, to act to enforce UN resolutions.

While there is a right of self-defense contained in Article 51 of the Charter, it is very limited: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." No nation has a right under the UN Charter to take pre-emptive action.

There has been no armed attack by Iraq on the U.S. or any other country since the Gulf War, and there is absolutely no evidence of Iraqi involvement in the September 11 terrorist attacks. Iraq does not even pose an imminent risk to the U.S. -- it has no long-range missiles that could reach us. Despite Iraq's past history of aggression in the Middle East (the only region that Iraq could strike with its missiles), all Arab nations oppose a unilateral U.S. attack against Iraq.

To support its claim that the U.S. has the right to act against Iraq in self-defense, the Administration contends that Iraq has or is developing weapons of mass destruction. That is precisely the point of UN weapons inspections -- first, to determine the existence of weapons of mass destruction, and second, to destroy them.

Iraq has agreed unconditionally to renewed UN inspections. So what's Bush's beef? If Saddam is recalcitrant after the inspectors are in Iraq, the UN can ratchet up the pressure, and, if necessary, approve military force against Saddam.

If President Bush jumps the gun and strikes pre-emptively against Iraq, he will undermine the United Nations as an institution (perhaps this is his goal), and he will diminish respect for international law as the means to resolve conflict (perhaps also his goal).

A unilateral attack on Iraq will foster international anarchy, as other nations emulate U.S. disregard for international law. Wars of aggression will be cloaked in the rhetoric of pre-emptive "self-defense". Will India or Pakistan -- both having nuclear weapons and both facing a far greater risk of attack by its neighbor than the U.S. faces from far-away Iraq -- take a cue from the U.S. and pre-emptively attack its neighbor in "self-defense"?

President Bush has asked Congress to grant him unbridled authority to use "all means that he determines to be appropriate, including force," against Iraq, and for that matter, to use whatever means he deems necessary to "restore international peace and security in the region." Congress should not approve any resolution that gives the President carte blanche to unleash the dogs of war against Iraq or other countries or peoples.

To do so would subvert our Constitution, which provides that all treaties to which the U.S. is a party are part of the "supreme Law of the Land" (Article VI, Section 2), with as much validity as the Constitution and federal laws. Accordingly, violating the UN Charter transgresses the U.S. Constitution as well. Congress, the only body that has the power to declare war (Article I, Section 8, Clause 11), should not abdicate its responsibility to uphold the Constitution in the face of a grab for unlimited war powers by the Executive Branch.

The only resolution that Congress should adopt at this time is one directing the President to abide by the UN Charter and to work with the UN Security Council to get the inspectors back into Iraq, so that any weapons of mass destruction can be destroyed. If the UN Security Council later concludes that Iraq is reneging on its commitment to unconditional inspections, or is blocking destruction of any weapons of mass destruction, then and only then should Congress vote on whether to authorize the President to take military action against Saddam or Iraq ... and with US action limited to what the UN Security Council specifically authorizes.

Arlene Zarembka is an attorney in private practice in St. Louis, Missouri. She has been active in peace and justice issues since the 1960s. E-mail: azarembka@cs.com

Copyright, 2002, by Arlene Zarembka, Attorney at Law

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