F aithful readers of this journal know that I love to get legal when I can, and from time to time, I publish my interpretation of the various parts of the Constitution that I think this present administration is screwing up, ignoring, or attempting to do an end run around.
You'll note that there is a link to the text of the Constitution in the sidebar to your left. It's there so you can check for yourself just what that famous document really says. Now, I'm not a legal scholar, but I have read extensively on early American history, most recently several books on the American Revolution and the Constitutional Convention itself, so I was pleased to come across this post by David Mills, who is a lawyer, and has some thoughts on what the Constitution means when it says what it says. In this particular piece, he lays out his thinking on the reference in the Constitution to the "law of nations."
This reference is not just a casual, meaningless phrase haphazardly thrown into the Constitution; it is a concept originating with the early Romans, who saw the need for universal justice in their empire. David's article, reprinted in full, from Dissident Voice:
Article I, Section 8, and the Law of Nations vs. The Man Who Would Be King
by David G. Mills
January 15, 2006
<1.> The congress shall have power...<10.> To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; <11.> To declare war... and make rules concerning captures on land and water; <12.> To raise and support armies... <13.> To provide and maintain a navy; <14.> To make rules for the government and regulation of the land and naval forces....
-- Article I, Section 8, of the United States Constitution
Clause 10 states that “Congress shall define and punish offenses ... against the Law of Nations.” What is the Law of Nations? I guarantee you most constitutional scholars unfortunately do not know, but in the Law of Nations lies the key as to which branch of government was given the authority to make the laws of warfare (intelligence gathering for example) and is even the key to how our founders believed we are supposed to treat “enemy combatants.”
The Law of Nations was a four-book treatise written by a Swiss legal scholar, Emmerich de Vattel, in 1758. Early Supreme Court cases suggest to me that there may have been several other treatises, by other authors, on the Law of Nations, but the one by Vattel was by far the most prominent and authoritative of the time. In reading it, you will find many of the origins of our Declaration of Independence and our Constitution. The third book of Vattel's Law of Nations is about how warfare between nations is to be conducted. Reading many sections of the four books of Vattel's Law of Nations has clearly left me with two impressions.
The first impression is that since the Constitution grants to the Congress the right to define and punish offenses under The Law of Nations, that the founders intended Congress to be the body that defined the laws of warfare. Let me say that again. The founders intended Congress to be the body that defined the laws of warfare and the founders did not intend for this power to be in the hands of the executive. There is no comparable clause in the constitution for the executive.
This notion becomes even clearer when clause 10 on the Law of Nations is read in conjunction with Clause 14 where Congress is to make rules and regulation of the land and naval forces. The Law of Nations has many of its own rules and regulations on the land and naval forces and makes an excellent template on this subject.
Thus, the founders intended the executive to prosecute warfare within the legal constraints that Congress enacts. If Congress passes a law that says our soldiers can not rape the women of the enemy, the President does not possess the prerogative to order the rape of the women of our enemies even if he believes that raping the women of the enemy will bring about a quicker end to the hostilities.
The second impression Vattel's Law of Nations has given me is that there are two distinct types of wars: wars against sovereign nations and wars against organizations or consortiums who are not sovereign nations.
The laws of warfare are decidedly different depending on which war one is fighting. When there is warfare against a sovereign, the soldiers who are fighting for the sovereign are doing so vicariously for the sovereign, and have limited personal responsibility for their actions, so long as they are not engaging in personal acts outside the purposes of the sovereign. If captured, these soldiers were to be considered prisoners of war and were to be returned home once the hostilities between sovereign nations ceased. Under the law of nations, civil wars were to be treated as a war between sovereigns.
On the other hand, a war perpetrated by non-sovereign fighters (called by Vattel's Law of Nations a war of depredation) is for personal gain, benefit or motive of the individual, and as such, the individuals are treated as having committed personal crimes. Pirates were the terrorists of their day. They fought wars of depredation. The punishment for fighting a war of depredation was death. Pirates got the death penalty.
Nothing is new under the sun. Applying the principles of the Law of Nations to the present day, it seems clear to me that the war against the Taliban and the War against Saddam's Iraq were wars against sovereigns and their soldiers should have been treated like ordinary prisoners of war. When the fighting was over, they should have been released and returned home.
I also believe that the Iraq insurgency would be classified as a second war between sovereigns although this is less clear. It also seems clear to me that the war against Al Qaeda is a war against non-sovereigns, (a war of depredation), and that the fighters of al Qaeda should be treated as common criminals. That means that they are entitled to a lawyer and a trial. If they are found guilty of being "enemy combatants" then they are to be treated as having committed personal crimes. Upon conviction, they are punished. Under the Law of Nations, there is no such thing as a perpetual war of depredation. A sovereign would not have been able to hold prisoners indefinitely or suspend civil liberties indefinitely.
It is equally clear under the Law of Nations clause that if the Congress enacts a law prohibiting our intelligence services from searching the American public without a warrant in order to ensure that these searches are reasonable searches under the fourth amendment, (warrantless searches or searches without probable cause are presumed to be unreasonable searches under the fourth amendment) the President is not free to ignore this law.
This is Congress' prerogative, not the president's. And on this issue, clause 11, concerning captures, is also supportive of congress' war prerogative as information can be captured as well as people and property. The Law of Nations is so instructive in gaining the proper perspective on these issues, it is past time we brought the Law of Nations back into our constitutional analysis.
David G. Mills has been a licensed attorney for 28 years. He is licensed in Texas and Tennessee and currently practices in Memphis, Tennessee. This article may be reproduced provided it is not changed. The author encourages its dissemination. He can be reached at: firstname.lastname@example.org
* Text of Vattel's Law of Nations
Notable sections of Vattel's Law of Nations:
War of Depredation: Book III, Sections 67 & 68
Declaration of War: Book III, Sections 51 - 64
Just and Unjust war: Book III, Sections 24 - 27
Treatment of Enemy Women and Children: Book III, Section 145
Prisoners of War: Book III, Sections 148 & 149
Poisoning the Enemy's Water: Book III, Section 157
Bombarding Towns: Book III, Section 169
Spying: Book III, Sections 179 - 182
On Civil War Producing two Sovereigns: Book III, Section 293
On the Nation's Constitution: Book I, Sections 27 - 31
On the Nation's Pursuit of Happiness: Book I, Section 110
On Free Speech: Book I, Section 114