in your list of verbal boondoggles, you forgot 'stay the course'.

Heh, I said this on Christmas Eve. (But then, I have seven readers.)

"Escalation" is an excellent word. In a public discussion it will be irrepressible and it will put Little Hickory and his apologists on the defensive.

Escalation would be honest language. But that is too much to ask.

The phrase you're looking for is "cannon fodder."

Or perhaps today "IED fodder" is more appropriate.

Let's call it what it is - "More Americans driving and marching around Baghdad, waiting to get shot or blown to fucking Kingdom come".

Am I wrong about this?

I'd suggest that it would be irresponsible to oppose a true "surge" (a temporary increase in the number of troops)...indeed such a surge would be a military necessity for force protection in a withdrawal.

The people who came up with "surge" are the same folks who babble about "death tax" and "personal accounts." Let's not play this word game with their choice of vocabulary. Bush is planning an escalation, so that's what we should call it.

as well, if a surge was used to destroy Sadr and then withdraw...that could't help but be better for Iraq then simply withdrawing and leaving Sadr intact.

can we call the action a "surgency"? This seems natural; a surgency to combat the insurgency. We we'll now need a "solvency" to combat our subsequent "insolnecy".

I think a more honest way to describe it would be:

"delaying the inevitable withdraw - prolonging the artificial crisis that justifies the enormous flow of cash from the red side of the public balance sheet, to the black side of Halliburton's."

Hat tip to you, GC, Queen of the Seers.

"Surge" is marketing. "Escalation" is reality. Neocon Bill Kristol advocated a permanent increase or a "sustained large surge." So he got the Bushie memo to avoid the dreaded "E" word, too.

I hope Dems grab on to reality and never use the word, "surge," to describe Bush's escalation of Operation FUBAR in Iraq.

TCD: Am I wrong about this?

Not at all. But don't we wish we were.

The Bush Administration is the truest believer in "marketing major post-modernism:" the belief, often picked up through osmosis while majoring in public relations at college, that some egghead over in Europe proved there's no such thing as truth, it's all just spin, so spin away!

biden plans to question Gen. Keane, who in the past has called for an "18-month Surge" how many suckers will buy this? take it away, al.

Winning the political debate has always been the White House's number one priority. OK, they lost the 2006 election and they have screwed up in Iraq completely. But why would anyone expect these clowns to change tactics now?

I call it the "reinvasion of Iraq."

Like "let's rainvade!"

Well, it's going to be a "surge"-ical strike, isn't it?

nyuk nyuk nyuk

Moe Larry, the cheese!

Steve:

The Bush Administration is the truest believer in "marketing major post-modernism:" the belief, often picked up through osmosis while majoring in public relations at college, that some egghead over in Europe proved there's no such thing as truth, it's all just spin, so spin away!

I don't understand the tone of your comments, sir, but I'll have you know that the vast majority of the members of the Bush Administration have Masters degrees and that makes them a tad bit more qualified than yourself to criticize their efforts to properly market this war to the American people.

The "surge" is a move of genius proportions--once our enemies see that the United States of America can rise up, bloodied and unbowed, they will fear our resolve.

And it is resolve they suspect has been lost. George W Bush is showing them we have vast resevoirs of resolve and we will win this war, despite what the liberal media tells you fools on your little You Tube shows.

Norman: I don't understand the tone of your comments, sir, but I'll have you know that the vast majority of the members of the Bush Administration have Masters degrees and that makes them a tad bit more qualified than yourself to criticize their efforts to properly market this war to the American people.

No, the vast majority of the members of the Bush administration say they have Masters degrees on their resumes.

This is not the same thing as actually having those degrees.

Republicans are big into this luntz group language manipulation stuff. It has worked brilliantly for them afterall.

Clever, craigie. But Jeso Pete! You may have summoned the hordes of the Trolletariat by using the secret invocation: nyuk nyuk nyuk.

The dictionary definition of "surge" (a sudden increase followed immediately by a decrease toward the norm) isn't even logistically possible in a vast military operation like Iraq.

But will a debate over terminology help generate public outrage and real opposition to this grotesque new plan?

My suggestion in our morning work group was "military tsunami". This leaves room for 1 to 10 surges and a certain amount of unpredictability. It also provides connotations of absolute destruction for our enemies and a quiescent period of several centuries before it is neccessary again.

A-13: You may have summoned the hordes of the Trolletariat by using the secret invocation

Yup, Jay is on the "expectations" thread, playing his mix-tape of greatest hits to an empty auditorium.

My suggestion in our morning work group was "military tsunami".

Brilliant. Plus, it gives you a linguistic excuse to kill up to 100,000 innocent people each time, which I know is a major goal.

...playing his mix-tape of greatest hits to an empty auditorium.

How this makes me chortle.

of course, tsunamis kill innocent civilians, which i gather was al's point.

How this makes me chortle.

Me, too. You funny today, Globe.

The Crazies are dangerous for America and must be punished. Many lost mid-term Congressional races, but the administration is criminal and must be removed and punished for America to save it's soul.

Well, enough of this. Liberals, journalists, I'm calling on you. We must never talk about a surge unless we're actually talking about a surge -- a temporary infusion of troops.

I'd go farther: we must never talk about a "surge" period. Everything that has been billed as a temporary infusion of troops to be followed by a drawdown in this campaign has turned out to be just another round of upward escalation. Its time we realize that all escalations are meant to be temporary (after all, the war is, in theory at least, meant to be won, at which time troops from any escalation will be drawn down) and therefore there is no distinction to be drawn among different escalations where some are "temporary" surges and others presumably permanent escalations. They are all intended to be temporary, the duration of each is subject to conditions after the escalation, so it is right and proper that any proposal to increase the commitment of forces should be called an "escalation" with none, ever, minimized as a temporary "surge". That an escalation will produce conditions which will allow a drawdown in short order is a hope, but one which may not, and generally does not, materialize.

Any increase offered is an escalation, period. That the same people that fantasized that we would be able to maintain security and forge a new democracy in Iraq while rapidly drawing down to ~30,000 troops after the fall of Saddam Hussein's regime also fantasize that we will be able to swiftly draw down troops after the escalation so that, in retrospect, it will look like a "surge" is of no import whatsoever.

A surprising amount of the debate surrounding the war in Iraq has been about word choice.

The first mistake you make here is calling the occupation of Iraq a war. The US fought a war against Saddam's forces and then started an occupation. If it is a war then who is the US fighting?

The first mistake you make here is calling the occupation of Iraq a war.

Where separate forces are fighting and killing each other, the word "war" is not inappropriate.

This frequently occurs during a hostile occupation; war and occupation are not mutually exclusive conditions.

If it is a war then who is the US fighting?

Organized armed opponents of the US presence in Iraq and the US-sponsored Iraqi regime.

I like to visit this site for the nifty charts. Does anyone know of a chart showing troop levels by month since the invasion? I seem to remember troop "surges" during elections, and somehow, we have ended up with more troops there than at any time in the past.

The most annoying thing about calling it a "surge" is that, as far as I can tell, the term doesn't exist! Is there anyone who's heard "surge" used to describe such a military action before now? Anyone recall a great "surge" or two in the annals of war history?

Having thousands more soldiers put in harm's way for a failed policy is terrible. But to do that in support for what sounds like a slogan for an energy drink?!? Why doesn't the White House just use Schwarzenegger catch phrases and Moutain Dew ad copy to describe their military operations, and be done with it?

-L-

"Does anyone know of a chart showing troop levels by month since the invasion?"

One important detail to keep in mind is the overall foreign troop level in Iraq vs the US troop level. The US troop level is up some tens of thousands, but much of that has simply filled in for coalition troops from other countries that have left.

I assume Keane and Kagan will not be serving in combat in Iraq, so it is very easy for them to call for more troops and US aggression. Certainly escalate is a better word than surge, and coward is a much better word than strategist to describe Keane and Kagan.

Please; it's not a war of words. Vocabulationary dispute sounds so much more genteel, and Dear Leader might actually, one day, announce that he's the vocabulator!

"Does anyone know of a chart showing troop levels by month since the invasion?"

I'm sure that's classified. And if it isn't, it will be now.

Steve writes: A surprising amount of the debate surrounding the war in Iraq has been about word choice.

Very true. Then he says: ...not to say the rhetorical questions are inconsequential...

As long as the subject is word choice, I think you wanted to say "semantic", not "rhetorical".

Good post though, and important point. The right wing has been enormously successful at framing issues its way by coining phrases and misusing words -- and is seldom challenged by the other side. A passive press adopts the terms coined by Karl Rove and uses them as if they are objective ways of describing what is happening. If journalists and TV anchors would only question the word choice of the government we would be halfway to rationality.

Some conservatives sort-of agree with the sentiment here. E.g., Ralph Peters says the situation isn't necessarily hopeless in theory, but he doubts that Bush will do what's needed to prevail, which (in his opinion) is

One thing's clear: If we can't enforce security, nothing else matters. So the wisest course of action seems obvious - except to the Washington establishment: Return to a wartime footing.

Focus exclusively on security. Concentrate on doing one thing well. Freeze all reconstruction and aid projects. Halt every program and close every office that doesn't contribute directly to pacifying Iraq.

Empty the Green Zone. Pack off the contractors. Reduce the military's overhead to those elements essential to support combat operations. Make it clear to "our" Iraqis that it's sink-or-swim time. Remove our advisers from any Iraqi unit that can operate marginally without them (and let the Iraqis do security their way without interference).

Above all, establish unity of command: Stop pretending there's a fully functional government in Baghdad, recall our ambassador until the fighting's over and make this a purely military effort until Iraq has been pacified.

http://www.nypost.com/seven/12272006/postopinion/opedcolumnists/strip_for_action_opedcolumnists_ralph_peters.htm

Surge, Smurge.

What we really need is a nice word to use in place of bodybag. That would change everything.

"And it is resolve they suspect has been lost. George W Bush is showing them we have vast resevoirs of resolve and we will win this war, despite what the liberal media tells you fools on your little You Tube shows."

Which war? The civil war? All the military might in the world will not be able to quell this "uprising", "insurgency" or whatever you wish to label it. Didn't you learn anything from Vietnam?

The sad thing about the whole situation is that when you do decide to tuck tail and run, Iraq will fall apart like a house of cards. Ten years from now, even the conservatives in the US will recognize the grave error of violating international law by invading Iraq.

//Those who cannot learn from history are doomed to repeat it.--George Santayana

What we really need is a nice word to use in place of bodybag. That would change everything.

Clever, but have you noticed that "body bag" isn't used very often by the MSM these days? Out of sight, out of mind. More evidence of a passive press.

F.Bauge (from Norway): Ten years from now, even the conservatives in the US will recognize the grave error of violating international law by invading Iraq.

Nah, those of us who will think that then already do. Ten years from now the conservatives will be blaming the liberals for causing our defeat by failing to support the troops and the president. Facts will be forgotten or fudged. International law will be ignored.

Or, maybe ten years from the now an elected Iraqi government will finally succeed in putting down the insurgency and the world will realize that Bus was right to overthrow Saddam even though he royally messed up the occupation.

JS, How about Troop Carrier?

Troop Carrier
that's so friggin' sick, they'll probably use it

What we really need is a nice word to use in place of bodybag.

I believe the current term for the containers used to transport remains is "transfer tube".

Good start GC. I would propose Flexible Hero Carrier, but I'm sure Rove can do much better.

No, "surge" is honest. Remember, Kagan says a surge -- a temporary increase in forces -- wouldn't work. So Bush, following his past, completely consistent pattern of failure in Iraq, will initiate a surge.

Or, maybe ten years from the now an elected Iraqi government will finally succeed in putting down the insurgency and the world will realize that Bus was right to overthrow Saddam even though he royally messed up the occupation.
Posted by: ex-liberal

... and maybe if a stray assassin bullet picks off bush and cheney, there will be a ridiculous outbreak of world peace, and the world will thank the killer, making his actions acceptable.

do you frequently attempt to justify war crimes and other illegal actions post facto?

Remember the chant Nads,

IOKIYAR. Repeat as often as necessary.

Or, maybe ten years from the now an elected Iraqi government will finally succeed in putting down the insurgency and the world will realize that Bus was right to overthrow Saddam even though he royally messed up the occupation.

I think that if you were to compare the amount of pain and suffering caused by the occupation to the amount that would have been caused by Saddam's regime, the occupation would end up as the largest causative agent. Of course, this can't be proven since we don't know what Saddam would have done. What we do know is that Iraq was a much safer place under Saddam's regime than under Bush's regime (puppet governments don't count, sorry).

Another term that causes confusion is "Iraqi". There are no Iraqis these days -- there are Kurds, Sunnis, and Shia.

"Iraqi" is meaningful only when talking about history, like "Soviet" and "Yugoslav".

... and maybe if a stray assassin bullet picks off bush and cheney, there will be a ridiculous outbreak of world peace, and the world will thank the killer, making his actions acceptable.

If you cut off the hydra's head it will sprout two new ones. No, we must convince the hydra to go back to it's cave. This is best done by voting for the other guy.

A fifteen year long civil war would be pretty high up there on the list of worst possible ways to switch from dictatorship to democracy.

If you cut off the hydra's head it will sprout two new ones. No, we must convince the hydra to go back to it's cave. This is best done by voting for the other guy.
Posted by: F.Bauge

If anyone takes out Bush, it'll be a right wingnut who became disillusioned that he wasn't insane enough (a la Yitzhak Rabin). The point of the post was to highlight the dubious rationale of justifying the means with the ends.

"I feel a surge a'risin', I feel an escalation on it's way, I feel a surge a'risin', I feel a lot of dy'in on it's way" -----Very Bad Moon out there.

Apologies to Credence

as a matter of law, the invasion of Iraq was legal. why? because an Act of Congress authorized it. that Act was "last in time"...i.e. it was more recent than any international treaty which the U.S. may have ratified that arguably would have made the invasion legal.

this is a simple matter of fact under the U.S. Constitution. If you want to argue that the Constitution is not the supreme law of the land...go for it.

(cmdicely won't actually disagree with this -- cause it's basic law school stuff -- he'll just find a way to change the subject)

Nathan: However, the authorization was not unconditional. It stipulated that:

... the President shall, prior to such exercise [of force against Iraq] or as soon there after as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that

(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq, and

(2) acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001.

It seems to me that the Congress clearly meant that these presidential "determinations" could not be pulled out of a hat, and would be subject to congressional scrutiny. Which, hopefully, we may see one day soon.

as a matter of law, the invasion of Iraq was legal. why? because an Act of Congress authorized it. that Act was "last in time"...i.e. it was more recent than any international treaty which the U.S. may have ratified that arguably would have made the invasion legal.

this is a simple matter of fact under the U.S. Constitution. If you want to argue that the Constitution is not the supreme law of the land...go for it.

No act or law passed by the US congress changes the fact that the invasion of Iraq was a violation of international law. Any military intervention has to be sanctioned by the UN to be legal. The US government have accepted these rules.

As for the US constitution being the "law of the land" or not: Iraq is not US territory.

Funny how the US touts international law when it suits them and violates it when that is more suitable. Like with torture (Abu Ghraib) and arbitrary detainment (Gitmo).

(Oh,for clarity: I am not anti-US: I am anti-neocon)

as a matter of law, the invasion of Iraq was legal.

Depends on the legal context. As a matter of international law, it was pretty clearly illegal in initiation and, arguably so in elements of its conduct. It terms of US domestic law, the initiation is more of a gray area, though its probably an irrelevant question, legally, as it is almost certainly something that would be held to be a nonjusticiable political question in the unlikely event that anyone could establish standing to challenge it.

In practice, the forum it would be challenged in without being sidestepped is an impeachment debate, in which case the precise legality would be less important that political and policy judgements.

why? because an Act of Congress authorized it.

That's not entirely clear. An Act of Congress conditionally authorized it subject to other determinations which were required to be reported to Congress. If those required written certificates were misrepresentations, that is both a statutory crime and likely invalidates any action under the authority granted by the act taken by anyone who knew the required determinations were falsified, which would include the person responsible for giving them, the President of the United States (again, of course, the courts would likely punt the whole thing as a nonjusticiable political question.)

that Act was "last in time"...i.e. it was more recent than any international treaty which the U.S. may have ratified that arguably would have made the invasion legal.

The question (aside from whether the AUMF did, in fact, authorize Bush's actions) would whether Congress intended to overturn the treaty obligations sub silentio or to authorize action consistent with them; when a newer act can be read to be consistent with an older act rather than overturning it sub silentio, courts will often limit the newer act to the reading consistent with the older act; where the legislature expressly states an intent to override the older act, naturally, this is not a concern. Of course, there is also the question of whether under US domestic law the relevant international instruments are either implemented in legislation or self-executing.

I feel compelled, though, to reiterate that all those intricate legal details, while grist for academic debates, are likely of no other practical importance, as their merits are unlikely to ever be considered in any court in which they matter.

this is a simple matter of fact under the U.S. Constitution.

The matters, both of fact and law, are not nearly as simple as you present them.

If you want to argue that the Constitution is not the supreme law of the land...go for it.

There are certainly legal contexts in which the US action could be challenged where, in fact, the US Constitution is not the supreme law of the land. But that's mostly beside the point.

(cmdicely won't actually disagree with this -- cause it's basic law school stuff -- he'll just find a way to change the subject)

I think you'll notice that I do, indeed, disagree with you on many points, rather than changing the subject. You should probably refrain from commenting on what I will do, as that will usually make itself evident on its own soon enough, and usually make you look like an idiot.

Any military intervention has to be sanctioned by the UN to be legal.

Other, of course, than individual or collective self-defense in the event of an actual attack, which is why (for instance) US action against al-Qaeda and those protecting them in Afghanistan in response to the 9/11 attacks required no such authorization.

Game, Set, and Match to Dicely.

some problems with italics in my last post. sorry about that,

cmdicely: As a matter of international law, it was pretty clearly illegal in initiation and, arguably so in elements of its conduct.

cmdicely, what do you mean it was illegal by "international law"? There are no international law books that ban our overthrow of Saddam. No international law courts (that the US recognizes) could adjudge the US invasion a breech of law. There is simply no international law that applied to our overthrow of Saddam.

You may be assuming that a war is legal if authorized by the UN and illegal otherwise. Where is that principle written down? In what treaty did the US agree to that principle?

The so-called violation of "international law" is just a convenient excuse to criticize an action with which you disagree.

In what treaty did the US agree to that principle?

The US has signed the UN charter, no?

JS, AFAIK the UN Chater doesn't say that signatories will commit no acts of war without UN approval. If it does, could you please find the relevant section?

Note that the US had committed many acts of war without UN approval. Clinton's bombing in the former Yugoslavia; Clinton's bombing in Sudan (the target of which may or may not have been an aspirin factory; Vietnam; JFK's blockade of Cuba; our support of the UK during the Falklands Islands war; and Grenada, are a few that come to mind. And, of course, all the other countries on earth have committed hundreds of acts of war without UN approval.

cmdicely, what do you mean it was illegal by "international law"? There are no international law books that ban our overthrow of Saddam.

The UN Charter obliges all member nations to obey binding resolutions of the Security Council once a matter has been submitted to the Council and a binding resolution opposed. In the matter of the dispute between the Kuwait, the US, et al., against Iraq, the Security Council had imposed a binding resolution imposing a cease fire on all parties. Under the UN Charter, only the Security Council lifting that cease fire order would relieve any parter from its obligation to obey it. (One might also point to the broader provisions of the charter abandoning force against other member states but for the reservation of the right of individual or collective self-defense against actual attacks, but the more specific prohibition in the binding resolution would seem the stronger prohibition.)

No international law courts (that the US recognizes) could adjudge the US invasion a breech of law.

Certainly, the absence of courts of universally accepted final jurisdiction is a perennial problem in the application of international law, but somewhat tangential to discussion of its content.

There is simply no international law that applied to our overthrow of Saddam.

It is certain that no such law was applied to that action.

You may be assuming that a war is legal if authorized by the UN and illegal otherwise.

To the extent that that is a concern, its actually a secondary consideration, as I note above.

Where is that principle written down?

The principle that all use of force between UN members other than that authorized by the Security Council, except in individual or collective self-defense against an actual attack while Security Council action is pending, is prohibited is written down in the UN Charter. Most relevant are Article 2 and all of Chapter VII of the Charter.

In what treaty did the US agree to that principle?

In, again, the Charter of the United Nations.

The so-called violation of "international law" is just a convenient excuse to criticize an action with which you disagree.

Its not just that, and it is only convenient because it is also true.

UN Charter:

- All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

- All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Exception:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter...

I believe that Yugoslavia, Sudan, and Grenada were also illegal. In Vietnam and the Falklands (and other places) we theoretically joined on the side of a party fighting in self-defense. Cuba was not strictly an overt conflict but mutual posturing.

ex-liberal----------------there you go again. Iraq was a sovereign nation. Complacency will no longer suffice.
Will you ever acknowledge the folly of this war?
This very ruthless administration sending off the National Guardsman to perish in an unjust war, pretending to give a care, as they eyeball the OIL
Mr. Bush should step down.

F. Bauge is simply wrong, since the U.S. Constitution overrides the UN Charter...(as far as the U.S. is concerned).

cmdicely, as I predicted, merely changed the subject (though he actually conceded my point by noting that the SC would never hear such a case under the political question doctrine")

the World Court only hears cases where the parties accept its jurisdiction. the US would not in such a matter.

in sum, we have the typical, a 2nd year law student bloviates a little, while conceding the point, and a biochemist thinks he won the argument (which he in fact conceded)...like GC has the foggiest clue what the political doctrine is, or what it means for a treaty to be "self-executing"....

now indeed, the ICC and the World Court may not accept the supremacy of both the U.S. Constitution and its "last in time" jurisprudence, but as neither of those bodies have jurisdiction over the U.S. (the U.S. can grant jurisdiction to the WC in individual cases)...that is a nullity.

this time it really is "game, set, match"

a final explanation to JS (under the U.S. Constitution, a treaty signed by the U.S. -- such as the UN Charter -- is equivalent to an Act of Congress. it is a standing principle of American law that whichever Act of Congress is latest in time supercedes all previous Acts dealing with the same subject matter - if they contradict. thus, Congress superceded the UN Charter for purposes of the Iraq invasion)
I realize that the non-Americans on this thread may have issues with this...but too bad.

so yes, as a matter of law, Congress could supercede the Geneva Conventions as well (they have not done so)

JS, AFAIK the UN Chater doesn't say that signatories will commit no acts of war without UN approval. If it does, could you please find the relevant section?

Article 2 generally renounces the use of force between members:

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
   

However, there are limitations on that renunciation within the Charter. Article 42 gives the Security Council the authority to authorize force:

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

And Article 51 reserves to member states the right of individual and collective self-defense against actual attack, while action is pending in the Security Council:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Note that the US had committed many acts of war without UN approval. Clinton's bombing in the former Yugoslavia; Clinton's bombing in Sudan

The former was justified at the time in part by invocation of collective self-defense under Article 51 citing cross-border attacks into Albania, the latter was a response to a direct armed attack against the United States and so also within the exception of Article 51.

Vietnam;

Most of the Vietnam operation was US support for the South Vietnamese government within its own territory; those attacks outside of South vietnam by the US were acts of individual and collective self-defense by the US in its own right and collectively with South Vietnam in response to attacks on US and South Vietnamese assets, mostly in South Vietnam, by forces operating from North Vietnam and other places. Though defending Iraq by comparing it to Vietnam may not be the best approach, anyway. Again, where there is any interstate conflict at all, Article 51 applies.

JFK's blockade of Cuba;

JFK's blockade of Cuba was almost certainly a violation. Nevertheless, there was an imminent threat that would have been irreversible if it had been allowed to go forward, that was real and not oversold, and it was probably necessary; the action was proportional to the known and clearly demonstrated threat, and the system was clearly incapable of addressing it, since the fundamental belligerents were veto powers on the Security Council.

our support of the UK during the Falklands Islands war;

Which was an Argentine attack on the UK, and thus, even if we had actually engaged directly in armed combat against the Argentine aggressors, within the scope of Article 51.

and Grenada, are a few that come to mind.

I'll agree that Grenada was illegal, and without the extraordinary circumstances that could be argued to defend the Cuba blockade.

cmdicely did articulate the long-standing principle that if a newly enacted Act of Congress could under one reading contradict previous legislation (or a treaty) while under a different reading, it would not, the second reading is generally (although not always) the one to be taken.

however, insofar as Congress enacted the AUMF without reference to any further UNSC authorization, and insofar as the president did in fact issue his determination that:
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq, and

(2) acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001. ,

that Act of Congress directly abrogated any extant ceasefire called for by the UNSC.

furthermore, although cmdicely, did in fact attempt to change the subject to whether the president's determinations were in fact correct, that point is irrelevant. they probably were, in part, incorrect. however, all that matters for purposes of the AUMF is that the president did in fact make those determinations, regardless of their actual validity.

funny, cmdicely just makes my point:

"Clinton's bombing in Sudan
The former was justified at the time in part by invocation of collective self-defense under Article 51 citing cross-border attacks into Albania, the latter was a response to a direct armed attack against the United States and so also within the exception of Article 51."

well yeah, even though it turns out that Sudan wasn't involved. but it is irrelevant that Clinton made an incorrect determination. what matters is that he made that determination. ditto for the Iraq War. (boy, precedents are a bitch aren't they)

thus, Congress superceded the UN Charter for purposes of the Iraq invasion

That's curious, because both the congressional resolution and the Bush administration made liberal use of references to UN Resolutions in an attempt to justify the use of force.

Of course, to use force in support of Iraqi compliance to UN resolutions is illegal -- unless force is specifically authorized by the UN. Kowing this, Bush and Blair attempted to ask for such authorization from the Security Council -- but when France indicated it would veto, they decided to attack without it.

finally, as a quick, but valid point, if the president committed a crime by "illegally" ordering the invasion of Iraq...then so did every member of Congress that voted for the AUMF without requiring UN approval.

whoops, Hillary's got some frogmarching to do.

cmdicely, as I predicted, merely changed the subject (though he actually conceded my point by noting that the SC would never hear such a case under the political question doctrine")

Er, no, I didn't. You made an argument on the merits under US law explicitly, implying further that the merits under US law were of some relevance, not on jurisdiction: I argued against your poin on the merits, then further noted that the merits under US law were largely irrelevant, anyway, since the only (US) forum where the issue was likely to be heard on the merits was a political rather than strictly legal forum, and thus the generally applicable canons of construction and precise legal details would be secondary to political and policy calculus. I argued against you on both your explicit and implicit points. I conceded nothing you argued.

the World Court only hears cases where the parties accept its jurisdiction. the US would not in such a matter.

The ICJ is not the only possible alternative forum, and not all are necessarily so friendly in their policy on jurisdiction.

However, as I noted, alternative, non-US forums are largely a side-note.

in sum, we have the typical, a 2nd year law student bloviates a little, while conceding the point,

What point that you argued for do you think I conceded? You made an argument on the merits which I rejected as erroneous at several points. Arguing a point you did not offer (that the merits were largely irrelevant) does not concede your point, since your argument was not that the merits were practically irrelevant, but that they were relevant on the side of those saying the war was legal.

A final explanation to JS (under the U.S. Constitution, a treaty signed by the U.S. -- such as the UN Charter -- is equivalent to an Act of Congress. it is a standing principle of American law that whichever Act of Congress is latest in time supercedes all previous Acts dealing with the same subject matter - if they contradict.

That's a big "if" that Nathan keeps gliding over: if a new act is silent on the intent to override a previous act, and if it can be read consistent with the previous act, there is a strong bias not to find intent to override a previous act sub silentio. Since the AUMF did not expressly repeal the applicability of the relevant provisions of the UN Charter, the usual reading would be that, insofar as those provision were binding before AUMF, they remained binding, as nothing in the AUMF required that any military action be conducted outside of the terms permitted in the UN Charter, and therefore there was no necessary conflict between the newer and older act. Which is good, otherwise any new authorization for force would override, sub silentio, the applicability of the Geneva Conventions.

JS says: "Of course, to use force in support of Iraqi compliance to UN resolutions is illegal"

funny, where in the AUMF does it say that? in fact it says the opposite.

I don't think you quite get this -- as a matter of law, if Congress authorizes a military action, that action, is, by definition, legal. Period.

specifically, see Article I, Section 8 of the U.S. Constitution.

please note that under Reid v. Covert, no treaty may override the U.S. Constitution.

(a good thing to -- otherwise, Senate could, hypothetically, ratify a treaty with Saudi Arabia tomorrow banning free speech in our respective countries)

cmdicely also says with respect to the Cuban blockade: "the system was clearly incapable of addressing it"

this was, of course, the U.S. justification for Iraq.

"That's a big "if" that Nathan keeps gliding over: if a new act is silent on the intent to override a previous act,"

except that it wasn't silent, it was an AUMF, not an "AUMF subject to a new UNSC Resolution"

For what it's worth (not a lot, probably) Kagan was on "On the Media" and pretty firmly shot down the terminology of "surge" as very different from what he is proposing.

Now, that doesn't change the fact that the word choice is a scam to gain support for something radically different than what the overwhelming majority of the country wants.

But Kagan himself is at least being somewhat honest about it.

Nathan, without prolonging this (there was a stretched attempt to claim that existing UN resolutions from the first Gulf war were sufficient to establish legality, which other countries did not accept):

I agree that the fact that so many Democrats voted for this authorization without insisting that it require explicit prior UN authorization of force -- that was a disgrace.

The Democrats who voted for this authorization -- most of them intimidated by the risk of losing their careers, which is not an excuse -- must bear much of the blame here. But Bush is the one who started it, and who created that climate of intimidation.

But the authorization did require some prior presidential determinations, as discussed above, and I hope the Dems redeem themselves now by carefully looking at them.

Natahan, again: the AUMF was very careful to make clear that everything it authorized was in support of UN resolutions. It does not specifically say that no UN authorization is needed for force. Which is why Bush DID attempt to get explicit UN authorization, as I mentioned. But he gave that up because of France.

We have two things here:

1. Possible domestic illegality could be established on the basis of inadequate (or fraudulent) presidential determinations submitted to congress as required by the AUMF.

2. Possible international illegality on the basis of the use of force with no authorization from the UN.

These are separate.

this was, of course, the U.S. justification for Iraq. Nathan at 8:42 PM

According to the Congressional Resolution on Iraq
…SEC. 4. REPORTS TO CONGRESS.
(a) The President shall, at least once every 60 days, submit to the Congress a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted in section 3 and the status of planning for efforts that are expected to be required after such actions are completed, including those actions described in section 7 of Public Law 105-338 (the Iraq Liberation Act of 1998)….
Those conditions were not met by the Bush government.

As for the UN resolutions, those, too, do not justify the attack on Iraq

Eventually the war started without a further resolution, which was seen by many governments throughout the world as a breaking of international law. ….

F. Bauge is simply wrong, since the U.S. Constitution overrides the UN Charter...(as far as the U.S. is concerned)

It seems like your literacy is dependent on whether you want to agree with the "post" or not. As I said, it is a violation of _international_ law. It is irrelevant whether the US constitution says otherwise (of which I have no idea, I never read the thing). US law has no bearing whatsoever on whether it's actions are in violation of international law or not. Of course, it has an impact on whether americans will be prosecuted in the US for those crimes or not.

Prosecuting the US is, of course, impossible. The reason for this is simply that you are a superpower. Imagine a bully in the schoolyard running around giving people wedgies and punching them in the nose for their (alleged or not) infarctions. The Bush regime is that bully.

Comparing Iraq to Yugoslavia is silly. The bombingin Yugoslavia occured as a result of genocide. There was no genocide in Iraq (though a lot of civilians have died after the US invaded...).

I don't think you quite get this -- as a matter of law, if Congress authorizes a military action, that action, is, by definition, legal. Period.

In the US, yes. In the rest of the world, no. See my post above regarding bullies.

I realize that the non-Americans on this thread may have issues with this...but too bad.

Your statement is a perfect example of why the US has lost so much popularity in Europe.

(please pardon the flood of posts)

F. Bauge - you've just saved people the trouble of pointing out more hypocrasy involved by the nation that isn't even truely alarmed that the Coast Guard and Civil Guard are packed off to foreign shores in support of a full blown dictation of the terms of domestic government of a nation which has resources which the U.S. will spare no pains to steal.
What's not to understand ?

except that it wasn't silent, it was an AUMF,

If it wasn't silent, you can quote the language expressly denouncing limitations on the legitimate use of force stemming from the UN Charter, right? But no, that's not it! You go on:

not an "AUMF subject to a new UNSC Resolution"

IOW, you are inferring intent to override the UN Charter from the absence of express language—you are precisely arguing that it is silent, and therefore intended to override the prior act.

Mike:
"Those conditions were not met by the Bush government."

False, every 60 days a report is made to Congress.

JS, see above...there was no requirement that the determinations were in fact valid, only that the president made them, which he did.

F. Bauge: I think you need to learn something about international law...international law rests on the consent of states to it (except, arguably, for customary international law -- but that's very limited (ambassadors shouldn't be killed and that sort of thing)...now, some NGO's today are trying to push for broader international law -- but that is not commonly recognized as of yet.

what you don't seem to get is that the AUMF was, in fact, a demurral by the U.S. of the UN Charter for purposes of the Iraq War. under international law, nations do have a right to back out of treaties -- so long as they explicitly do so (many treaties do have a particular process for doing so).

cmdicely: the fact that Congress, after passing the AUMF, did not object to the U.S. going to war without UN authorization is prima facie evidence that Congress in fact did intend for the AUMF to override any pre-existing UN obligations.

there was no requirement that the determinations were in fact valid, only that the president made them, which he did.

Falsifying a legally-mandated writing by a public officer is a crime. Unless you are going to argue that Congress also intended to override, sub silentio, 18 USC § 1018, there was, in fact, a requirement that the certifications be given honestly.

I think you need to learn something about international law...international law rests on the consent of states to it (except, arguably, for customary international law -- but that's very limited (ambassadors shouldn't be killed and that sort of thing)

I would have rather thought that Nuremberg established that the prohibition on aggressive war was part of the customary international law, not dependent on treaty, as well.

what you don't seem to get is that the AUMF was, in fact, a demurral by the U.S. of the UN Charter for purposes of the Iraq War.

An argument you have failed, very badly, to make even as a matter of US law, much less as a matter of international law.

under international law, nations do have a right to back out of treaties -- so long as they explicitly do so (many treaties do have a particular process for doing so).

Irrelevant to the argument you are making about the AUMF being a "demurral" from the UN Charter for the specific purpose of the Iraq War. Such limited suspensions of treaty obligations may be recognized in particular treaties (the UN Charter is not one), but the ability to explicitly "back out" of a treaty which you correctly point to as a usually available under international law is the ability to explicitly completely repudiate a treaty, ending both the nation's rights and obligations under it, not to selectively exclude certain of one's acts from it.

The AUMF did not repudiate the UN Charter on behalf of the US, therefore the power of nations to repudiate treaties is irrelevant.

the fact that Congress, after passing the AUMF, did not object to the U.S. going to war without UN authorization is prima facie evidence that Congress in fact did intend for the AUMF to override any pre-existing UN obligations.

Legislative intent may validly be inferred from the debates leading up to an enactment, to prior enactments that provide context, to near-simultaneous enactments that were part of a legislative package, but generally not to more distant subsequent actions, and certainly not to subsequent inaction (though, I suppose, delay in objecting might be a bar to action or some particular relief if Congress was the party eventually bringing an action challenging the legality of the war.)

Silence after the act is an even weaker basis for the inferrence you suggest than the silence of the act is.

"Falsifying a legally-mandated writing by a public officer is a crime. Unless you are going to argue that Congress also intended to override, sub silentio, 18 USC § 1018, there was, in fact, a requirement that the certifications be given honestly."

of course. but that's not the point. there's no evidence that the determinations were not made in good faith. privileging one set of analysts' opinions over those of another set (even the majority set of analysts) may well be poor judgment..but that doesn't make it bad faith. there is no evidence whatsoever that the president did not believe his own determinations. whether people around him may have exercised bad faith is irrelevant since the determinations were ultimately his.

" would have rather thought that Nuremberg established that the prohibition on aggressive war was part of the customary international law, not dependent on treaty, as well."

that is the best argument. the problem is that the 60 years since Nuremberg indicate otherwise. a one-off trial doesn't set a precedent when it's not followed. (of course, the U.S. would argue that it had not engaged in an aggressive war in Iraq anyway...and that's a question of fact which could legitimately be disputed)

"but the ability to explicitly "back out" of a treaty which you correctly point to as a usually available under international law is the ability to explicitly completely repudiate a treaty, ending both the nation's rights and obligations under it, not to selectively exclude certain of one's acts from it."

eh...just because the latter is not normally done, doesn't mean that it can't be. what does the Vienna Convention on Treaties say? (not that it would necessarily apply to the UN Charter)

"(though, I suppose, delay in objecting might be a bar to action or some particular relief if Congress was the party eventually bringing an action challenging the legality of the war.)"

considering that Congress would probably be the only party with standing...that's exactly the point.

of course, all of these are alternative issues...since the U.S. would (and does) foremost simply assert that the question of whether the AUMF abrogated the UN Charter is moot since the invasion constituted a legitimate act of self-defense inherent within the sovereignty of every nation.

(the possibility that the action may have been mistaken does not render it illegitimate)

of course. but that's not the point. there's no evidence that the determinations were not made in good faith.

Certainly, that point is disputed, but certainly the evidence on either side is sketchy (which is one reason that opponents have been calling for and defenders of the war stalling inquiry into the use of intelligence to justify the war for years.)

privileging one set of analysts' opinions over those of another set (even the majority set of analysts) may well be poor judgment..but that doesn't make it bad faith.

Perhaps, but information being available from which someone reasonably should have known a representation was false is certainly itself evidence which tends to support the conclusion that they did, in fact, know it was false. It, of course, is not dispositive, as subjective rejection of that evidence could perhaps still be supported.

that is the best argument. the problem is that the 60 years since Nuremberg indicate otherwise.

While certainly the absence of prosecutions against individuals might be argued to cast doubt on the status of individual liability for aggressive war, nothing in the history of of the past 60 years suggests that the prohibition on aggressive war as a matter of international law is any less a matter of customary international law than it was as at Nuremberg. Certainly, that prohibition has been codified since in treaties of near universal applicability that have served as the framework of international response to aggression, but codification of customary international law in treaty does not destroy the customary international law.

eh...just because the latter is not normally done, doesn't mean that it can't be.

If you are suggesting that it is a matter of accepted international law that a country may selectively suspend its obligations under a treaty with no detriment to the benefits it derives from the treaty, please present some evidence of this position.

does the Vienna Convention on Treaties say?

Why, do you have trouble reading? Nothing, that I see, which supports your position, if it applied.

(not that it would necessarily apply to the UN Charter)

In fact, it would necessarily not apply to the UN Charter, for a number of reasons, most notably its own non-retroactivity provision (Article 4).

considering that Congress would probably be the only party with standing...that's exactly the point.

That the action as a whole or a particular remedy is barred by some kind of estoppel, laches, or some other rule regarding failure to make a timely claim is a separate issue from the legality of the action challenged. Further, you have established no such applicable rule, all I did was acknowledge that if the failure has any effect, it would be in that regard, not on the legality of the action. You have not, however, demonstrated that, in fact, a complete bar would be available, or even provided the slightest reason to believe that. So, if that is really "exactly the point" you were trying to make (contrary to what you actually said previously), you would do well to support that point.

since the U.S. would (and does) foremost simply assert that the question of whether the AUMF abrogated the UN Charter is moot since the invasion constituted a legitimate act of self-defense inherent within the sovereignty of every nation.

An argument which fails entirely since the right of self-defense reserved in the UN Charter (that against an actual attack) includes all of (and perhaps more, in that whether collective rather than individual self-defense among nations is non-derogable can reasonably be debated) the non-derogable right to self-defense inherent in sovereignty, and to the extent a broader derogable right of self-defense exists, accession to the UN Charter is a derogation of that right to the extent that it conflicts with the UN Charter. Ergo, any action in violation of the Charter by a UN member cannot be defended as an act justifed by the right of self-defense.

I see that you've conceded the point:

"While certainly the absence of prosecutions against individuals might be argued to cast doubt on the status of individual liability for aggressive war,"

of course, the only possible liability for aggressive war is individual. The State of Germany was not convicted of aggressive war at Nuremberg.

furthermore, violations of the UN Charter are determined by the passage of an UNSC resolution (such as the ones condemning Iraq's invasion of Kuwait and mandating measures to reverse it). also see the Korean War.

the fact that no such UNSC resolution has been passed settles the matter.

the only international body with jurisdiction to hear claims of violation of the UN Charter is the UNSC

in other words, assuming arguendo, that the AUMF did not temporarily abrogate the UN Charter, the invasion, by definition, could not be deemed violative of the UN Charter until the UNSC says so.

I see that you've conceded the point:

You keep saying that about widely divergent statements that don't concede any point you've actually advanced. I'm not sure if this is stupidity or dishonesty on your part, but it certainly is persistent.

of course, the only possible liability for aggressive war is individual.

Wrong. State liability is not only "possible" but rather more well-established and frequently imposed than the individual liability at Nuremberg; for instance, such liability is the basis for the compensation procedure administered by the UN Compensation Commission for damages resulting from Iraq's war of aggression against Kuwait.

furthermore, violations of the UN Charter are determined by the passage of an UNSC resolution (such as the ones condemning Iraq's invasion of Kuwait and mandating measures to reverse it).

Please cite the provision of the Charter supporting this contention. AFAICT, it is false: threats to international peace and security warranting specific action under the auspices of the UN are determined by the UN SC. Not all violations of the Charter are necessarily such threats, and not all such threats are necessarily violations of the Charter. The absence of UN SC action does not imply that the Charter has been obeyed.

the fact that no such UNSC resolution has been passed settles the matter.

No, it does not.

the only international body with jurisdiction to hear claims of violation of the UN Charter is the UNSC.

False. Under the Charter, the ICJ clearly has jurisdiction to hear such claims, as do other bodies to whom members refer claims, see Chapter XIV of the Charter, and the Statute of the Internation Court of Justice, incorporated into the UN Charter by reference in Article 92.

Anyhow, what international body has jurisdiction to determine a violation and impose remedies under international law is irrelevant to whether a violation actually occurred and its effect under domestic US law, unless some provision of domestic law were to prohibit a finding of violation absent a binding finding by a competent international body. However, you have presented no such provision of domestic law.