Once again, an American president is threatening to use force against another country; in this case, the Bush administration is threatening, at a minimum, to launch cruise missiles into Iran. President Bush also recently said that a military confrontation with Iran could lead to World War III. And once again, such threats demonstrate that the U.S . news media is content to permit the president to operate outside the U.S. Constitution and the UN Charter when it comes to one of the most important and momentous foreign policy decisions-when to resort to the threat and use of force against another country. How can it be that one person, given our well-established system of constitutional checks and balances, can make that decision alone without any immediate need to defend the territorial borders of the United States against an armed attack?
It is clear that the president has no legal authority under the Constitution or the Charter to decide whether to attack another country. According to the Constitution's delegation of war powers, only the Congress is authorized "to declare war," while the president as "Commander in Chief" has the authority to conduct war once it is declared by Congress. Referring to the constitutional limitations placed upon the president, James Madison wrote: "Those who are to conduct war cannot in the nature of things be the proper judges whether a war ought to be commenced, continued, or concluded."
Referring again to the president's war powers, Madison wrote to Thomas Jefferson: "The Constitution supposes what the History of all Gov[ernments] demonstrates, that the Ex[ecutive] is the branch of power most interested in war and most prone to it. It has accordingly, with studied care, vested the question of war with the Legis[lature]." Jefferson, while writing to Madison, stated: "We have already given in example one effectual check to the dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend [the Executive] to those who are to pay [the Legislature]."
Likewise, no head of state, including the president of the United States, has any legal authority under the UN Charter to unilaterally resort to force. The Charter prohibits the threat and use of force by a state that is not the victim of an "armed attack"-that is, in Daniel Webster's generally accepted formulation, when military forces cross an international boundary in visible, massive, and sustained form, and "when the necessity for action" is "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The intention of the Charter in this regard is to make force the instrument of the world community, and not of individual states.
Perhaps the most coherent explanation in the United States of international law and the use of force was presented in the 1960s by a group of distinguished foreign-policy and international law scholars. The group, the Lawyers Committee on Vietnam, chaired by Richard Falk, at one point emphasized the legal synergy between the Constitution and the Charter with regard to how they limit the legal resort to force by an American president. They wrote: "Above all, the Founding Fathers restricted the power of the Executive to 'repel sudden attacks.' This expresses and foreshadows the philosophy of the United Nations Charter provisions and affirms what is being urged here: namely, that just as the framers of the Constitution accepted the need for special, carefully restricted powers 'to repel sudden attack,' so did the framers of the United Nations Charter acknowledge the need of Member states for special, carefully restricted powers 'if an armed attack occurs.' Hence, for such emergencies, the United States Constitution permits an exception to the general rule that only Congress can declare war; and the Charter permits an exception from its general rule that only the Security Council can authorize military actions if international peace is threatened. From the standpoint of both instruments, the Constitution and the Charter, exceptional emergency measures are permitted to prevent disaster."
Thus, if in fact Iran is a threat to international peace, but does not engage in an armed attack against the United States-which it won't and can't-then the decision about how to respond to Iran under international law lies with the UN Security Council, and not the United States or President Bush. This situation is parallel to the war powers in the U.S. Constitution, which gives President Bush no authority, in the absence of an armed attack on the United States, to attack Iran without a congressional declaration of war.
In addition, the Constitution requires U.S. compliance with the UN Charter and its most important rule-the prohibition against the threat and use of force. This is because Article VI, section 2, of the Constitution says that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." This constitutional stipulation would obviously apply to the UN Charter, the world's most important treaty, which has been signed and ratified by the United States. Thus, to the extent that a U.S. use of force would violate the UN Charter, it also would violate the U.S. Constitution. And as the Lawyers Committee on Vietnam argued in the 1960s, "No branch of government is permitted directly or indirectly (by delegation) to violate the Constitution." This means that, short of formally abrogating the UN Charter and dropping out of the UN, even the Congress cannot legally authorize President Bush to attack Iran in the absence of an armed attack by Iran on the United States or an authorizing resolution from the UN Security Council.
Unfortunately, when the Bush administration, from September 12, 2001 to March 20, 2003, repeatedly threatened to invade Iraq, the New York Times editorial page took none of these constitutional or international law conosiderations into account in any of its editorials throughout this period. In fact, in over 70 editorials on Iraq from September 2001 to March 2003, the Times' editorial page never mentioned the words "UN Charter" or "international law" on any of the editorials. This history is repeating itself with respect to the Bush administration's threats to attack Iran. While the Times has improved its oversight of the Bush administration's foreign policy since Andrew Rosenthal became editorial-page editor in January, it has not invoked to date the words "UN Charter" or "international law" in any of its editorials about the Bush administration's threats to attack Iran.
Why would it be important for the New York Times to integrate international law into its editorials on U.S. foreign policy? For one thing, the Times is the leading news organization in the United States. If the Times began using international law as a criterion of editorial analysis, including about the conduct of its own government, other major news organizations might follow. The net result would be increased journalistic oversight of illegal U.S. foreign policies. Invoking international law would also diminish the political utility of presidential lying as a way of justifying the illegal use of force by the United States.
For example, the Bush administration repeatedly justified its threats to invade Iraq, and ultimately the invasion itself, by claiming that Iraq possessed weapons of mass destruction that were a threat to the United States and the international community. Irrespective of the truthfulness of this claim, it was offered mainly as a justification to invade Iraq. However, by itself, this claim, even if accurate, did not justify a U.S. use of force against Iraq under the UN Charter. But the political usefulness of the WMD claim rested on the assumption-unchallenged by the New York Times and other major news outlets-that it legitimately justified a unilateral U.S. invasion of Iraq.
In this case and many others, American presidents have misrepresented facts to the American public in order to justify the illegal use of force by the United States. In almost every such instance, the New York Times reported these presidential assertions as valid, not only in a factual sense, but also as providing a legitimate justification for an American president to resort to the use of force. The result has been not only some of the worst journalism in the history of the New York Times, but the initiation of numerous illegal wars by the United States.
Today, it is difficult to tell whether Iran is developing a nuclear-weapons program or aiding armed insurgents in Iraq, as the Bush administration charges. In any event, these charges, even if true, would not provide President Bush with any authority under the UN Charter to launch cruise missiles or otherwise attack Iran. Whether Iran is a threat to international peace, and what to do about it, is a determination for the UN Security Council to make, not the Bush administration by itself. While this is an obvious and critically important point, the Times has neglected to make precisely this point throughout the course of its post-UN Charter history of supporting the illegal use of force by American presidents.
While the New York Times and the rest of the US news media ignore international law, they deprive the American public of the opportunity, and the right, to participate in the formulation of US foreign policy, and ultimately to determine (a) whether the United States should conduct itself legally or illegally in world affairs, (b) whether its citizens will fight in legal or illegal wars, and (c) whether taxed income should continue to pay for the apparently endless stream of illegal U.S. military adventures.
While the editorial page under Rosenthal's direction has certainly improved its oversight of the illegal policies of the Bush administration, the mother of all improvements would be to incorporate the UN Charter and international law into its editorials about U.S. foreign policy. This should begin at the Times and elsewhere in the U.S. news media before President Bush attacks Iran and, by that, quite possibly, starts World War III.
Howard Friel is coauthor with Richard Falk of The Record of the Paper: How The New York Times Misreports US Foreign Policy (Verso, 2004), and Israel-Palestine on Record: How The New York Times Misreports Conflict in the Middle East (Verso, 2007).