An Illegal War is Inherently Unjust

Bush took a year to make the case for war. Trump took 8 minutes.

Not a photoshop. Real billboard from 2010. They weren’t ready for this sign yet, but their kids are gonna love it. (PHOTO: anglerove)

I talk to a lot of people on the internet, so the law of averages dictates that many of them are idiots.¹ This is not their fault and I have spent decades practicing the habits of good conversation, even with idiots: listen closely, argue clearly, claim firmly, question gently, and pursue common ground aggressively.

For example, in the Catholicism forum on Reddit, I recently took the position that, if you have sex with your wife and penetration alone is insufficient to get her off, it is morally praiseworthy to use your mouth to finish her, and I cited 19th-century sources supporting the general principle to argue that it’s a long-established teaching. My view was generally well-received, but it also provoked one specific guy to message me several times a day every day since to inform me that he is praying for God to reprimand me for my blasphemy against the Virgin Mary. I am trying to be firm but kind,² because that is how you persuade. It’s also how you learn. And it’s how you discuss important disagreements without going to Hell. After all, Christ warns us: “…whosoever shall say, Thou fool!, shall be in danger of hell fire.” (Mt 5:22)

Recently, despite all this, I lost my temper. A guy said something so stupid that I opened with an insult, doubled down by belittling him, got sarcastic, rejected any possibility of common ground, and generally tried to make him feel every inch of how stupid he was being. I knew it was bad and I did it anyway. I, who am understanding toward QAnon and gentle toward people who tell me they would take my kids away from me if they came out as trans, lost my crap.

So what unspeakable obscenity did this guy propose? Was he defending Jeffrey Epstein? Did he propose genocide of humanity for environmental reasons?

No. This man started by arguing that Donald Trump had done a good job preparing the American people for his war with Iran. Foolish, but I stayed my hand. He argued that Donald Trump had done a better job preparing the American people for a war than other recent presidents.³ Madness, but I told myself to be the bigger man.

Then this degenerate implied that the “recent presidents” Trump had outdone included George W. Bush.

And then I went at him.⁴

“Well, sir, this was a matter o’ pride.”

How to Start a Legal War

In January 2002, President George W. Bush gave the “axis of evil” State of the Union speech, which briefly enumerated the sins of Saddam Hussein’s Iraqi government:

Iraq continues to flaunt its hostility toward America and to support terror. The Iraqi regime has plotted to develop anthrax, and nerve gas, and nuclear weapons for over a decade. This is a regime that has already used poison gas to murder thousands of its own citizens—leaving the bodies of mothers huddled over their dead children. This is a regime that agreed to international inspections—then kicked out the inspectors. This is a regime that has something to hide from the civilized world.

With this, the Bush White House kicked off its campaign to win public, constitutional, and international support for a policy it had decided was vital to the interests of the United States: war with Iraq.

Over the next year, the White House made Iraq the center of an astonishingly long news cycle. Saddam Hussein was the Tim Magazine cover story on May 13… and again on September 16… and again on March 10. It was a constant feature in the news. Newsweek identified it as the top story of 2002, above even that year’s midterm elections. Heck, the midterms were, in large part, a referendum on the proposed Iraq War anyway!

On the international front, top administration officials made the pilgrimage to the United Nations to make the case, forcefully and repeatedly, that Saddam Hussein had violated multiple U.N. resolutions, including the ceasefire agreement that had suspended the Persian Gulf War. The U.S. sought new rounds of weapon inspections, acknowledgments that the agreements suspending the Gulf War were in breach, and a new U.N. Security Council resolution, Resolution 1441, which promised “serious consequences” if Iraq failed to avail itself of this “final opportunity to comply with its disarmament obligations.” In the U.S.’s view, the broken ceasefire, combined with a new Security Council resolution, would satisfy our obligations to peace under the United Nations Charter Treaty.⁵

Through a heroic amount of persuading, presenting, and (of course) lobbying, the Bush White House was able to win all three of its wishes. Res. 1441 passed in November 2002, eleven months after the Bush Administration began earnestly making the case for war. A few months later, Sec. of Defense Colin Powell’s presentation to the U.N. on supposed Iraqi weapons of mass destruction were riveting television the world over.

Meanwhile, domestically, the Bush team labored even harder to crack an tougher nut: the U.S. Congress. The House was under narrow but adequate Republican control, but the Democrats held the Senate, 51-49, and the progressive faction was already in the streets protesting the war. The White House launched a well-coordinated media campaign in September, hoping to convince voters and elected officials of the threat posed by Iraq. This outreach campaign was successful to an extent hardly imaginable today. The war resolution passed the Senate 77-23 (even Hillary Clinton voted for it!), and it got 296 votes in the House (the GOP only had 221 seats, 6 of whom voted nay). The Iraq War Resolution became law October 16, 2002, the product of months of hard political lifting.

The Iraq War Resolution was styled as an Authorization for the Use of Military Force (AUMF) Against Iraq. Since the War Powers Resolution, the AUMF has evolved into Congress’s modern way of exercising its constitutional power to “declare war.” Congress can use an AUMF to declare war directly, by authorizing immediate military force against specified enemies, or Congress can, through an AUMF, make a special, ticket-good-for-this-ride-only delegation of war powers to the President, authorizing him to use military force if certain conditions are met. Either approach satisfies the requirements of the War Powers Resolution, and either constitutes “declaring war” for purposes of Congress’s exclusive war-declaring powers under Article I, Section 8.⁶

Congress took the first, immediate path just after 9/11, when it declared war on al-Qaeda and all its affiliates in perpetuity. For Iraq, though, Congress made the AUMF take the form of an ultimatum: they did not allow the President to launch a war unless the President could certify to Congress that peaceful means had failed and that the war on al-Qaeda would continue full-force. They hoped this ultimatum, backed by Congressional war authorization, would convince Iraq to comply without war. However, if the President certified the conditions were met, the AUMF allowed him to initiate hostilities without further action from Congress.

The Bush White House recognized that both the U.N. and Congress had given one last chance for Iraq to comply with its ceasefire obligations, and the White House honored that insistence. The AUMF passed in October, the U.N. resolution in November. The U.S. then spent four months pressuring Iraq to comply, repeating its clear message on Iraq throughout that time, both for Iraq’s benefit and the American People’s. President Bush finally issued Saddam Hussein a globally broadcast ultimatum on March 17: leave within 48 hours, or we will attack. He did not. We launched a limited first strike 49.5 hours later,⁷ with the true opening attack (the “shock and awe” bombing of Baghdad’s military and leadership targets) arriving 45 minutes after that. By the time the bombs fell, Bush had already secretly transmitted to Congress his certification that peaceful means had failed, and his public notice under the War Powers Resolution was on their desks the next day.

We don’t like to remember this because of how the war went later, but, just before and just after the first bombs fell, the Iraq War was extremely popular:

Would you favor or oppose invading Iraq with U.S. ground troops in an attempt to remove Saddam Hussein from power?

• Favor: 64%

• Oppose: 33%

• No Opinion: 3%

-Gallup, March 14-15, 2003

***

Do you think the United States action in Iraq is morally justified, or not?

• Yes, is: 73%

• No, is not: 24%

• No opinion: 3%

-Gallup, March 29-30, 2003

This popularity had been built up over the course of a long, difficult year of presenting the case for war to a wide range of audiences, using the whole of the White House. The reason the Iraq War Resolution passed Congress was because elected officials had been, first, convinced by the arguments and, second, buoyed by the war’s popularity.

Now, the Iraq War was a mistake.

To be sure, great good came from it: Iraq has enjoyed more than 20 years of freedom. Although the cost in blood and treasure (for all concerned) was far higher than we expected, the government we built for them remains intact, and continues to govern. It has federalism, a parliament, and separation of powers. It has regular competitive elections. It has problems up the wazoo, but it no longer has Uday and Qusay Hussein’s rape-torture chambers for pretty women who catch the dictator’s eye. Saddam Hussein was responsible for the deaths of many thousands of innocents, and that regime has been replaced by a better one. (Not a great one. Don’t move to Iraq. But better.)

Nevertheless, the war was a mistake. The U.S. went in to topple the dictator, yes. Even in 2002, I considered that sufficient reason to attack. He’d gassed his own people! However, for most Americans, nation-building was a side project. Our main reason for invading was to dismantle Iraq’s weapons of mass destruction. That was the centerpiece of our argument for the war. When we got there, though, we found very few WMD, and the ones we did find mostly predated the first Gulf War. It gradually became clear that Saddam Hussein had actually been forced to abandon his WMD program in the 1990s, but had kept up noncompliance with the U.N. as a bluff, because he wanted his enemies in Iran and Israel to think he did still have WMD.

Unfortunately for Saddam, his bluff worked.

As the war turned sour, many people turned to the theory that Bush had lied about the intelligence and manufactured a WMD threat out of whole cloth, but every country and every intelligence service at the time agreed that Iraq did have WMD.⁸ That’s what Resolution 1441 said! In 1998, years before Bush even came on the scene, President Clinton had bombed Iraq for exactly the same reason.⁹ As I recall it, the only person who seemed to really think Iraq might not have WMD was Hans Blix, and I never thought too much of Hans Blix:

Iraq goes to show that you can have a legal war, based on a reasonable assessment of the available facts, supported by a just cause, with large-scale public buy-in… and the war can still be a horrible mistake.

This should make us even more skeptical of illegal wars, especially the ones that are missing some of those key ingredients.

How to Start an Illegal War

I’m told that, “You can actually just do things.” Apparently, this means you can just start bombing a sovereign foreign country one day, out of nowhere,¹⁰ without talking to Congress, without talking to the U.N., without making a case for war to the voters. Indeed, you can start a war by yourself, even though you campaigned on not starting wars, including this exact war.

Surely I must tell the voters something, you might think. To satisfy this residuum of conscience, you might find yourself posting a quick address to the White House website after you start the war, then cold calling reporters at random for the next week to give them a quote here or there, as a treat.

Sorry, did I say the White House website? Here in reality, the post-attack video actually went up on Truth Social, an obscure social media network used only by the White House’s sycophants.¹¹

The end. War launched.

Bush on the left, Trump on the right, this is not a compliment to Trump.

The Overlooked Just War Criterion

I frequently turn to Catholic thought on moral questions, not just because I am Catholic, but because the Catholic Church has done an awful lot of thinking about most moral questions, and has therefore gotten pretty good at it.

However, in the matter of Just War Theory, the Catholic Church has been so generally persuasive that the Catholic view (whether advertised as such or not) is a very common starting point for everyone talking about whether a war is justified or not. One way or another, most of its core ideas have found their way into international law. (In particular, Christianity has globalized the once-radical idea that wars of aggression are not a legitimate tool of statecraft, but a crime against humanity.)

The Church lays out the just war criteria in its catechism at paragraph 2309:

The strict conditions for legitimate defense by military force require rigorous consideration. The gravity of such a decision makes it subject to rigorous conditions of moral legitimacy. At one and the same time:

- the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;

- all other means of putting an end to it must have been shown to be impractical or ineffective;

- there must be serious prospects of success;

- the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modern means of destruction weighs very heavily in evaluating this condition.

These are often summarized as: war must be necessary, a last resort, not futile, and proportionate.

However, evaluating these factors can be extremely difficult. Two good men may come to very different conclusions about one or more of them.

In Iraq, for example, many of us believed (as I did) that we would be greeted as liberators, that all human beings yearned for liberal democratic freedom, and that reconstruction would therefore be a quick and relatively painless affair. We were greeted as liberators, but not by everyone, and that minority made reconstruction painful indeed, and never entirely successful. Moreover, the Iraqi people did not, in fact, yearn for liberalism in the same way that we meant it.

Those who wisely foresaw a long, expensive reconstruction period in Iraq raised serious objections to the proportionality of the war, fearing that we might replace the great evil of Saddam Hussein with the even greater evils of endless, bloody civil wars. Those of us who had bet heavy on a quick, easy victory thought those people were being ridiculous; of course the Iraq War would do a lot more good than evil! I still think the war ultimately cashed out as doing more good than harm, but it’s a much closer call than I ever expected in 2002, and we must, at the very least, admit that the critics had some very good points.

Because the just war criteria are almost always disputable, the Church has one more criterion, which is often forgotten, because it appears at the very bottom of the paragraph, and not in a bullet-point list: competent authority.

The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.

A wise and just nation creates power structures that make evaluating the just-war criteria a serious and difficult endeavor. A foolish nation places all that power in one set of hands, leaving the just war criteria to him alone. Either way, though, the power to evaluate the just war criteria belongs to the competent authority exclusively.

When someone without competent authority launches a war, then, the war is unjust, because the highly prudential calculus of just war has not been appropriately evaluated. For example, there have been several moments in our recent history where it was at least arguably justifiable for the U.S. to attack Syria.¹² However, if the governor of Kansas had quietly activated his state national guard, sent them overseas, unilaterally declared war on Syria, and sent his troops in to fight Bashar al-Assad and al-Qaeda, yes, it would be a farce. But it would also be a crime against peace. Under international law, it is probably a war crime. Under Catholic doctrine, it is a mortal sin. The Kansas-Syria war might very well be necessary in the just-war sense (at least for the defense of innocent Syrian civilians), a last resort, successful, and proportionate. However, the governor of Kansas simply lacks authority to lead America, or even Kansas, into war. He has not been entrusted with that piece of the common good. He is not entitled to impose his judgment on the American people. He would not be a liberator, but an usurper.¹³

The Wise Federal Design

When the Founding Fathers wrote the Constitution, they deliberately fragmented “responsibility for the common good” among several different branches of government. Each branch was responsible for its own pieces. Most responsibility was reserved “to the States respectively, or to the People.”

The conduct of war was assigned to the President, who was therefore declared “commander-in-chief of the armed forces” in Article II. The Founders did not believe war could be micromanaged by committee. Their own experience with the Continental Congress during the Revolution showed them that they needed a decisive leader to command U.S. military missions. Once war is declared, the President may be supervised by Congress,¹⁴ but it’s the President who eventually calls the shots.

On the other hand, the authority to decide about declaring war, the Founders gave exclusively¹⁵ to Congress:

The Congress shall have Power… To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

—Article I, Section 8

This is the authority to “evaluate the conditions of moral legitimacy for war” spoken of by the Just War Theory. The President does not have it. Congress does.

The Founders did this in part simply to separate powers. The Founders separated powers because no one person or entity could be trusted with full power. During debate at the Constitutional Convention over this provision, Elbridge Gerry famously remarked that he “never expected to hear in a republic a motion to empower the Executive alone to make war.” As James Wilson argued at Pennsylvania’s ratifying convention:

Th[e] [Constitution’s] system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war.

In part, though, they separated this specific power from the Executive because the Executive is uniquely dangerous in this regard. As Madison wrote to Jefferson in 1798:

The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislative.

He goes on in that letter to complain about the possibility that a president could, by hook and crook, abuse his power to drag Congress into a position where it has no politically viable choice but to acquiesce to the President’s war of choice, writing, “it is evident that the people [would be] cheated out of the best ingredients in their Government, the safeguards of peace which is the greatest of their blessings.”

A third benefit of the Founders’ assignment of the war-starting power to Congress is that it forced the nation into a discussion. President Bush very probably wanted to go to war with Iraq immediately by April 2002. He could not. He needed Congress on his side. He couldn’t just start a war on his own, then claim Congress was on his side when it inevitably failed to pass a War Powers Resolution ending the war. That would invert the Constitutional order, by allowing one man to start a war and a minority of Congress to continue it.¹⁶

That meant Bush had to talk to Congress. He had to talk to it a lot. It wasn’t enough to talk to Congress, either. Congress is a permanent prisoner of the election cycle, largely unable to do really unpopular things, so Bush had to talk to the voters, too.

As a result, America spent a full year talking, as a nation, about the just war criteria as applied to Iraq. We had raging national debates, including on the floor of Congress, about whether the cause was just, about its proportionality, about alternatives. Every point of the just war theory was litigated in endless detail at water coolers and dinner tables across the country. We spent months arguing whether a new war would be self-defensive enforcement of the terms of the Persian Gulf cease-fire (good), or a new preemptive war of aggression (bad). Bush was forced to pursue several alternatives that he probably didn’t really want to pursue, but political reality didn’t give him a choice. Only after those alternatives were exhausted could he launch the attack. When he did finally launch the attack, he had the great majority of the nation behind him.

That’s what happens when Congress has the power to declare war.

Now Donald Trump is showing us what happens when Congress, by negligence, loses that power. As Abe Lincoln wrote to his friend William Herndon in 1848:

Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object– This, our convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us[.]

Alas.¹⁷

The Constitution is Not Amended by Disuse

I say this kind of thing a lot, and one common response is a dejected sigh. “You’re right, James, of course this war is unconstitutional, on paper. But that paper is long dead. Presidents have been flagrantly usurping Congress’s war power for decades. Get real. Trump’s just the latest in a long line.”

First, I think this is much too cynical about the recent past. George W. Bush launched multiple wars, all of them legally, backed by authorizations from Congress that he had sought and received. George H.W. Bush, in launching the Persian Gulf War, sought and received an AUMF and the U.N.’s full blessing.

Even deviations from the war power have generally come cloaked in thick legal arguments, because even aggressive presidents mostly knew they had to have some fig leaf to justify an attack without Congress’s say-so. For example, I was just a baby when George Bush invaded Panama, so I’m not prepared to parse out the legal arguments, but Bush did try to justify his attack under both self-defense and extradition rules. (Panama declared war on the U.S. just five days before our invasion, and U.S. troops had been killed as a result.)

Since I started paying attention to politics in 2000, I don’t think I saw a President truly, obviously, flagrantly try to steal Congress’s war power until 2011. That was the year President Obama started a clearly unconstitutional war with Libya. (It was unconstitutional for all the same reasons¹⁸ as Trump’s Iran War. Many of the Iran War’s loudest critics on my wall get really uncomfortably quiet after I say that, and remind them that he should have been impeached, too.) Illegal wars are getting more common, but they aren’t super-common, they’ve usually been quite rare, and we should not simply shrug our shoulders and give up on a provision of the Constitution that was working fine just two decades ago.

Even if the critics were right, though, that wouldn’t change anything. You should be furious that Mr. Trump has stolen the war power. He has robbed you of your birthright as an American citizen: peace, until Congress says otherwise. Whether it’s the first time you’ve been robbed or the twelfth, it’s still robbery! Subsequent robberies should make you more resistant, not less. Even if your city declares it will no longer enforce anti-robbery laws (which sounds like a joke but was as far as I can tell the actual policy of San Francisco for several years), robbery is still against the law, robbing people is unjust, and you should oppose the robbers. The best time to start impeaching and convicting Presidents for starting illegal wars was when they started, but the second-best time is tomorrow.

The Constitution is the supreme law of our land. Its provisions cannot be repealed by desuetude. Nor can they be rewritten by imperial presidents. The text of the Constitution remains the text, no matter what others say.

If the President wants more war powers, fine. If you, as a voter, think the Constitution’s separation of war powers no longer makes sense in our modern, hyper-connected world, fine. There’s a simple way to change the current settlement, proposed by the Founders and used twenty-seven times since: just amend the Constitution.

However, since that, too, involves talking to the American people, it’s not something these “realists” are inclined to try. They are more likely to scoff at you for suggesting that the modes of a Republic ought to be respected.

This is good evidence you should never, ever grant them the power they seek.

Bomb Bomb Bomb Bomb Bomb Iran

I’m not using this whole “follow the Constitution” thing as a stalking-horse for secret pinko anti-war sympathies. I am exactly the kind of person the whose support the Trump Administration would have counted on in the public debate, if they had bothered to have a public debate.

I am, at heart, one of the last unreconstructed neoconservatives. When foreign people suffer under evil oppressors, I think it's good for the United States to use its vast military power to liberate the people and topple the oppressor. War is horrifying beyond all reason. But so is a tyrannical police state that slaughters tens of thousands of its own citizens for protesting the government. War is sometimes the lesser evil, and it is praiseworthy to exercise that terrible power on behalf of the suffering victims of tyrants.

The Iraq War did not change my mind about this. The Iraq War merely humbled me. My vocal support for the Iraq War—and, worse, my curt dismissal of all the critics—was one of the three greatest mistakes of my political life. Iraq taught me (at great cost) that it is very hard and expensive to liberate a people, and that a liberation gone wrong could easily be worse than leaving the evil oppressor in place. I have become much more reluctant to intervene, much more skeptical of U.S. intelligence reports. I now realize that, even though some are sure to cheer and greet us as liberators, a few people cheering on the street is not a nationally representative opinion poll. Someone pointed out to me recently that, if the E.U. invaded the U.S. today to topple Mr. Trump, there would be celebrations in the street from about 20% of us… while the other 80% would be furious.

I recognize now that, in Iraq, we asked thousands of Americans, who had signed up to defend America, to die for a people not their own, which isn’t fair to them. (Nor was the cost in gold fair to the American taxpayer.) I also see now how the Iraq War, and the calamitous failure of the Bush Administration to deliver what it had sold, deformed America’s domestic politics, leading us straight into the collapse of social trust and high polarization of the Obama-Trump Era. The cost of Iraq was far higher than I ever imagined.

Nevertheless, at bottom, I want the world to be free, and I think military force can, sometimes, be the least bad means of achieving it.¹⁹

Aside from being a brutal dictatorship that slaughters its own civilians by the hundreds (perhaps the tens of thousands), Iran really has been trying to build WMD for decades. A nuclear Islamic Republic would first dominate the region, then become a threat to the whole world, the center of a perverted Ummah backed by nuclear fire and mullahs happy to flirt with an apocalypse for the sake of their God.

As a result, if you’d asked me at almost any point in the last twenty years, “Should the United States go to war with Iran?” my answer would be somewhere between a non-committal shrug and a reluctant, “Maybe we should just get it over with.” (This made me one of the most pro-war American voters, especially around 2008-2010.) I’ve little doubt the cause would be just; it’s just the other just war criteria that have always hamstrung me. Even now, though, I remain cautiously hopeful that the results of this war (though illegal, therefore evil) could lead to a great deal of good. Imagine a Middle East free of Hezbollah and Hamas, free of the regional tensions between Iran and Israel, with a whole new nation’s worth of men and (especially) women free from the oppression of sharia law. If all goes perfectly well, an Iran war could be the dawn of peace in the Middle East. Iraq humbled me far too much to expect that, but I still hope.

I did not like John McCain, but I was nevertheless one of almost a dozen Americans who did not find this joke offensive.

Much as I would have preferred a negotiated settlement that actually disarmed Iran (and, ideally, freed its long-suffering people), that was never really on the table, because Iran had no interest in such a settlement. I laughed at Obama’s JCPOA agreement with Iran, along with the rest of the Right, because it could never achieve what it set out to do. It probably was, as the Obama Admin argued, the best deal possible, but the best deal possible wasn’t good enough. Much as we might try to delay it (and I was all for delaying it), I didn’t see an alternative, in the long run, to eventually attacking Iran.

This would mean children killed by U.S. bombs. No matter how careful we are about it, no matter how just our cause, moms and dads in the war are going to come out of the rubble of a strike and find the broken body of their dead three-year-old, skull shattered, brain splashed across the ground, where he was playing with his toys a few minutes ago. It will be an accident, but the kid is still dead.

I just believed that, at some point, we would find ourselves in a position where attacking Iran would save more children than it killed. (The mullahs kill lots of people in their own country, and they are the puppeteers behind Hamas, Hezbollah, and a whole bunch of other child-killers around the Middle East.) Sometimes dropping bombs, even knowing that some will hit civilians, is the lesser evil.

But we’d better make damn sure of that before we open the bomb-bay doors.

The U.S. has a constitutional process designed to help make sure that we do, in fact, make damn sure. We did not follow it. We are not following it. We are not going to follow it. This war is illegal, and therefore unjust. All those who believe the United States is ruled by its Constitution, not by a King, have both a moral and a practical duty to oppose the U.S. war on Iran.

1. None of you, of course. My entirely unbiased and not-at-all made-up market research shows that reading De Civ is an unfailing signal of intelligence.

2. Here’s just an excerpt from our exchanges over the last 24 hours:

GUY: I believe blowjobs are a form of disordered lust. I believe going down on your wife is a form of disordered lust. I believe it’s justifiable to use fingers to stimulate one’s wife to orgasm, if her needs are not met after a male orgasms. That’s the only correct option if such a moment arises. For you to claim Mary or Christ or the Church supports such an act or oral sex is blasphemy and sacrilege against the dignity of the flesh & God’s innate Image.

ME: Why? Why are you drawing a distinction between fingers and mouths? What is that based on? And why are you so confident that I am a blasphemer when you seem unable to produce one solitary teaching document against cunnilingus? It wasn’t invented yesterday. The Romans had cunnilingus. Don’t you think that if it were immoral, the Church would have said so at some point? Do you really think you are making yourself look good in the eyes of the Lord and the Virgin when you go on the Internet accusing people of extremely serious sins without any evidence?

GUY: Fingers are the last stronghold against any other acts which go opposite the natural order of morality involving coitus in a fallen world. They are the last tools of aid for unity in the marriage bed. They are the purest form which passes trust from one another. Cunnilingus is abhorrent and defames the purity of God’s inherent plan pre fall and post fall in Eden. It supports perversion of inadequacy and nothing else. It’s blasphemy to speak for the Mother of God, that She would support humanity’s disability to try and solidify their brokenness which such mortal actions of impropriety. Yes, I am defending the True Christ & His Image. You are guilty of leading your brothers and sisters away from purity of intention in the marriage bed. You have corrupted their innocence, promoting rotten fruit not in accordance with obedient passions, that therefore honor the God and His Mercy towards us in a fallen state.

ME: Why are fingers “the last stronghold” and not tongues? Why do you feel comfortable teaching things the Catholic Church has never taught?

GUY: I just told you why they are the last strongholds. I am comfortable because The Catholic Church teaches preservation from immorality. I am its faithful servant that honors its teachings of dignity considering our fallen nature. You are lost. You have been told. Your Guardian Angel bears witness to what I tell you. Your wicked theology of the flesh is not in accordance with the Image of God, pre eden and post eden. You promote what the world has infested the bedroom with, wickedness. Repent.

ME: You didn’t make an argument. You made some bald claims, several of which didn’t even make sense, none of which are supported by the Church, nor by the Bible, nor by Jesus. What are your reasons for treating digital and lingual stimulation of the clitoris as ontologically different? Where do you find these reasons in the teachings of the Church? As far as I can tell, you—respectfully—just made some stuff up and then started yelling it at me. I don’t think my guardian angel agrees with you. I don’t think what you are saying is right or just. I’m trying to listen to you, but I don’t get the sense that you’re listening to me. Am I wrong?

…and so on in this vein.

3. He soon insisted his claim was narrower than that: that Donald Trump had done a better job explaining the war to the American people, specifically through news interviews, specifically in the 48 hours since its commencement, than any President in living memory. But, since that claim is even more ludicrous, I don’t think I’m doing him a disservice by omitting that.

4. Any reasonable editor would have told me to cut this entire introduction, because it is long and meandering and only tenuously connected to the main legal argument. However, I thought it was entertaining, I’m not fighting for clicks, and I have no editor. Mwahaha! That’s the De Civitate Difference™!

5. I don’t really believe in “international law.” Human law comes from sovereign governments, and there is no sovereign global government. “International law” is a series of white papers published by a shadowy cabal of technocrats, most of whom seem to think of violence as a kind of relic of a barbaric past, rather than the guarantor of law.

However, I do believe in treaty obligations. Sovereigns can make treaties. They can also withdraw from treaties, but, until and unless they do, they are bound by their treaties. Our own Constitution confirms this in Article V, when it declares Senate-ratified treaties part of the law of the land. It is therefore necessary that the U.S. either engage in a good-faith effort to meet its treaty obligations, or formally withdraw from the treaty. President Bush appears to have felt likewise.

I understand that some U.N. members believe the U.S.’s efforts in 2002-03 were neither adequate nor, even, in good faith. I don’t agree with that. Iraq violated a ceasefire. The consequence of a ceasefire violation is a resumption of hostilities. In my view, Res. 1441 was necessary only insofar as it formally confirmed Iraq had breached the ceasefire (Res. 687).

Several U.N. members disagreed with me about this. On the other hand, quite a few members did agree. 41 countries sent troops! This was not a fringe view! Bush’s legal interpretation was, at least, well within conventional thinking.

The member states that dissented against the Iraq War could have made their contrary interpretation legally binding on the United States by passing either a new Security Council resolution or by expelling the United States under Article VI of the U.N. Charter. They did neither. First, as a practical matter, the U.N. depends upon the U.S. for its continued financial existence. Second, as a constitutional matter, the U.S. has the power to veto any attempt to expel it. This points to some fundamental constitutional defects at the U.N., but does not mean the U.S. neglected a good-faith effort to meet its treaty obligations. Likewise, the U.S. Congress could have rejected the President’s legal argument very easily, by simply taking no action, but, as we shall see, it didn’t.

6. The key word in a declaration of war is “authorize,” placed next to some predicate that means “military violence.” Examples:

The 2002 Iraq War AUMF:

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

The 2001 Al-Qaeda AUMF:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.

The 1941 Declaration of War against Japan:

…the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the government to carry on war against the Imperial Government of Japan…

The 1846 Declaration of War against Mexico:

…the President be, and he is hereby, authorized to employ the militia, naval, and military forces of the United States…

Often, the enemy has already declared war or made war against us, as in 1941, so Congress does not so much start a war as declare the war recognized. In all cases, however, the decisive moment is when Congress formally authorizes the President to use the military against an enemy.

7. This limited first strike was an attempt to kill or incapacitate Saddam, Uday, and Qusay, reported to be staying at a retreat called Dora Farms overnight. However, according to some reports, President Bush ordered the strike delayed until his 48-hour ultimatum had expired, as an honorable man must. Unfortunately, some reports indicate that Saddam was there, but left shortly before the ultimatum expired.

8. The most potent charge against Bush was retired ambassador Joe Wilson’s claim that the Bush Administration fabricated a story, based on obvious forgeries, that Iraq had bought uranium yellowcake in Africa. Wilson’s charge was false, and Wilson was a huge partisan hack (as was his wife, the soon-to-be-famous Valerie Plame).

The Bush Administration accused Iraq of seeking uranium yellowcake in Africa. In 2005 or so, I read the Senate Intelligence Committee report on Iraq WMD (the sections on Niger and the nuclear program, specifically, I read cover-to-cover). This revealed three things:

1. Saddam Hussein probably was seeking yellowcake in Africa (which was a breach in itself).

2. He almost certainly never found a willing seller, so he never actually obtained any.

3. President Bush was honestly reading and acting on the intelligence estimates he was receiving from his government. Bush didn’t lie.

That being said, I do not exonerate the American government on its titanic intelligence failure in Iraq. Years later, I saw Armando Iannucci’s dark comedy In The Loop (starring an incredibly vulgar Doctor Who), and my experience reading the Senate Intelligence Committee report told me that this was, spiritually, the most accurate telling of the character flaws and telephone games that that allowed the global intelligence community—and, yes, the White House—to trick itself into believing something that was catastrophically false.

9. Well, okay, many argue that Clinton may have bombed Iraq simply to distract from the fact he’d boned an intern he wasn’t married to and committed a federal crime, perjury, to cover up the scandal, but, at the very least, his pretext was Iraq’s WMD program, and nobody doubted that was pretext was legitimate.

And perhaps Clinton’s motivations had nothing to do with the Lewinsky scandal at all. Perhaps he had motives as pure as Bush’s. I am asking some readers to be more generous to George W. Bush than they would like, so the least I can do is try to extend some similar generosity to Clinton.

10. When I say, “out of nowhere,” I do not mean to imply that I was stunned by the attack or that it came without signs and portents. I can read a deployment map. My mother asked me point-blank on Sunday night, a week or two before the war, “Are we going to go to war with Iran?” and was a little startled when I said, flatly, “Yes.” Practically every American tanker in the world had been flown to the Middle East over the preceding weeks. Of course we were going to war.

It has also been clear for some time that the Second Trump Administration considers Iran a key threat, especially after the October 7 massacre orchestrated by Iran through its proxies. This Administration, as well as its allies in the Israeli government, have systematically degraded Iranian power since October 7. It was not exactly a surprise that they escalated.

The war came “out of nowhere” all the same. The American people were not clamoring for it. They weren’t even discussing it. It wasn’t even in the news cycle. We are a week into this war and we are still guessing wildly at the Administration’s war aims. Is this a regime change war? Every Trump supporter I’ve spoken to is very clear what the answer is and insists everyone with a different answer is a stupid idiot… but they themselves have different answers. What’s our plan? I guess we’re arming the Kurds and hoping the people rise up? When do we stop? “Unconditional surrender,” according to Trump today, so we’re going to own Iran after this is over? What’s that look like? Do we want that? Is Iran even the real target here? Are we doing this to affect China?

These are all questions that would have and should have been asked, had the President started this war legally.

11. Perhaps this is a bit tan-suit of me, but I considered it an added insult that Mr. Trump didn’t even address us from the Oval Office or the Cross Hall, and he did it wearing a gaudy “USA” baseball cap. This is a war. You have just killed people. Some of them were innocents, unavoidable even in a just war. Americans will soon die. Show some goddamn respect!

12. I have a very, very old unpublished De Civ draft from right after Assad used chemical weapons on insurgents arguing that the U.S. ought to attack to enforce the norm against chemical and biological weapons.

Incidentally, you have to admit that it was a little odd that we never found any chemical or biological weapons in Iraq, but, a decade after the Iraq War, Assad showed us that he did have all that stuff now. Syria borders Iraq. The drive from Baghdad to Damascus is just 10 hours, about the same as the drive from the Twin Cities to Louisville, KY. There were quiet rumors at the time that Assad had helped out his old buddy Saddam when the U.S. rolled in.

I don’t actually believe Syria took Iraq’s WMD stockpiles in 2002-2004 as a favor to Saddam. The official story still seems more likely. But I do still think it’s possible. Maybe if I looked into it fiercely for the first time in many, many years, I would discover it has been definitively disproven, but it hadn’t been last time around.

13. One interesting consequence of this is that a war might meet the just war criteria for one belligerent while being unjust for one of its allies. For example, as far as I know, Israel’s current war on Iran is entirely legal under the laws of Israel. While I must stand foursquare against Operation Epic Fury (the American campaign), I am actually (as we will see later on) somewhat inclined to support Operation Lion’s Roar (the Israeli campaign).

14. Because the Constitution views Congress as the primus inter pares, it allows Congress to supervise pretty nearly anything it likes.

15. Almost exclusively. The President has some inherent authority under Article IV, Section 4 to respond to insurrection. The President also (arguably) has some inherent authority to respond to direct attack or invasion, under that same provision:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. —Article IV, Section 4

(NOTE: “domestic violence” meaning here means insurrection, not wife-beating. Thanks, originalism!)

For what it’s worth, virtually every modern authority agrees that the President does have inherent authority to respond to direct attack / invasion. Even if he doesn’t have inherent authority, however, Congress granted him statutory authority to do so under the War Powers Resolution, so the point is academic:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

—key text of the War Powers Resolution, 50 USC 1541 [emphasis added]

But if the war isn’t in response to present kinetic attack or invasion (or perhaps an imminent one), the President is not the competent authority designated by the Constitution.

And, no, the fact that Mr. Trump said the words “imminent threat” in his eight-minute Truth Social video does not, in fact, create an imminent threat, nor even the legal fiction of one. Quite apart from failing to provide any evidence of an imminent threat, he forgot to even describe anything resembling an imminent threat in the constitutional sense. The Caroline Test, an American-coined international law formula, suggests that a threat is imminent (in this sense) only when it makes the “necessity of self-defense… instant, overwhelming, leaving no choice of means, and no moment of deliberation.” No one, including Mr. Trump, has even pretended to suggest that Iran posed a threat of this kind. Trump’s actual War Powers Resolution report to Congress, explaining his (unauthorized, illegal) war to them, makes no mention of an imminent attack.

Some argue that the commander-in-chief designation gives the President power to declare war by himself when he sees it as vital to foreign policy. This is a constitutional absurdity, as it not only renders Congress’s war-declaring power redundant, but defies what we know about the original public meaning of “commander-in-chief.” Take Madison in Federalist 69:

[T]he President is to be Commander in Chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the King of Great-Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature. [emphasis in original]

Using the commander-in-chief power to start wars is just an excuse.

16. I wrote this Friday night. Saturday morning, I woke up to a slightly-viral Facebook post which although it included some welcome sobriety about the situation, also made just this (absurd) argument:

Congress and the Constitutional Question

Congress was notified before the strikes began.

The Senate has since voted to continue authorizing the operation.

The constitutional concern about a president launching major military action announced on social media in the middle of the night was real and worth raising.

But Congress has now formally weighed in.

That vote matters for both domestic legitimacy and international standing.

The Senate has not voted to authorize this war; rather, it narrowly failed to pass a resolution ending it. Even if it had voted to authorize the war, it would be irrelevant, since both houses of Congress must affirmatively declare war. Congress’s shirking of one of its core powers is, of course, shameful and humiliating. Congress has been shameful and humiliated so often during this century one can’t help suspecting that the members get off on it. It would be better for the nation if members of the President’s party showed up to work in gimp suits whimpering for “daddy” to teach them a lesson.

Nevertheless, the war remains unauthorized and unconstitutional. This is not a close question.

Pressed on the point, defenders of the war in Congress are quickly reduced to mumbling about “targeted strikes of limited duration” or (the favorite excuse from the unconstitutional 2011 Libya war) “kinetic military action.” Because a war magically stops being a war if we refuse to say “war” out loud. Except… Mr. Trump didn’t get the memo, called it a “war” in his initial address, and has referred to it as a “war” several times since. Because duh.

17. An interesting question I’m not going to explore today: given that the Iran War is unconstitutional, and given that U.S. servicemembers swear an oath to the Constitution, are current members of the U.S. armed forces permitted, or even obligated, to refuse orders that would have them participate in this unauthorized war?

To be clear, I don’t think any actual real-life servicemembers should refuse orders until the question has been thoroughly examined. It would be too easy for me, as an armchair lawyer, to say something here that would, if acted on, get an actual U.S. soldier imprisoned or shot, so I’ll say that again: I don’t think anyone should refuse orders right now.

Nevertheless, I think the question deserves some intellectual attention from those competent in military law, the law of war, and the proper role of our military in “supporting and defending” the Constitution when it is our own government that is attacking it. Their conclusions might need to be applied at some future date.

After all, the military is the guarantor of the Constitution. If they refused, with one voice, to carry out this illegal campaign, Mr. Trump’s usurpation of the Constitution would immediately stop. Would this refusal to submit to the commander-in-chief awaken greater evils, though? Possibly. So, for now, this is just something to think about.

18. That linked article, “How to Avoid an Unconstitutional War” by Michael Stokes Paulsen, is excellent and I recommend it. He wrote a follow-up in 2025, “How to Start Another Unconstitutional War,” expanding on his earlier argument and addressing the then-current Trump strikes on Iran’s nuclear facilities.

19. Look, I made an omake for today’s article:

Do you?