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Oppose H.R. 4453
 

 

  

For the purpose of comparison, H.R. 4453, H.R. 4654 and H.R. 4669 
are included in one analysis.

H.R. 4453 - The United Nations Rapid Deployment 
Police and Security Force Act

H.R. 4654 - The American Servicemembers'
Protection Act

H.R. 4669 - The Citizen Soldier's Protection Act

Constitutional Analysis
by Herbert W. Titus, Senior Legal Advisor

  

I.  Introduction

II. 
H.R. 4453 Promotes the Unconstitutional Misuse of the United States Military in Foreign Affairs

III.  H.R. 4654 is a Constitutional Exercise of Congressional Authority Under the Necessary and Proper Clause of Article I, Section 8 of the United States Constitution  

IV.  H.R. 4669 is a Constitutional Exercise of Congressional Authority to Make the Rules for the Government of American Armed Forces and to Ensure the Undivided Patriotic Loyalty of Citizens in Service of the Government of the United States

V.  Conclusion



I.  Introduction

H.R. 4453, H.R. 4654 and H.R. 4669 address the conduct of American foreign policy.  H.R. 4453 is designed to transfer additional powers to the United Nations by directing the president of the United States to “urge the United Nations...to establish a United Nations Rapid Deployment Police and Security Force” to maintain more effectively the domestic peace of nations experiencing internal civil conflicts.  If enacted into law, and if the president meets with success at the United Nations, H.R. 4453 would lead to the creation and maintenance of an elite military-civilian police force at the beck and call of the United Nations Security Council for deployment in troubled nations throughout the world.

In contrast, H.R. 4654 and H.R. 4669 are designed to limit the transfer of power to the United Nations.  H.R. 4654 seeks to impose jurisdictional limits upon the newly-created International Criminal Court (I.C.C.), through the withholding of United States economic and military assistance to countries which fail to provide effectual guarantees that they will not turn over United States servicemembers and other officials to the I.C.C. to be tried for crimes against humanity and other newly-minted international offenses.   H.R. 4669 prohibits any member of the United States armed forces from being compelled to wear, as part of his military uniform, any insignia of the United Nations or other foreign entity, and protects any member of the United States armed forces from having to serve under any commanding officer of the United Nations or any foreign state, except during a war formally declared by Congress pursuant to Article I, Section 8 of the Constitution of the United States of America. 

Both H.R. 4654 and 4669 are constitutional exercises of congressional power, whereas H.R. 4453 is not.

II.  H.R. 4453 Promotes the Unconstitutional Misuse of the United States Military in Foreign Affairs

Writing of the rights and duties of nations in a state of peace, the great American jurist and expositor of American law, James Kent, professor of law at Columbia University and Chancellor of the State of New York, observed:

          Nations are equal in respect to each other, and entitled to 
          claim equal consideration for their rights, whatever may 
          be their relative dimensions of strength, or however 
          greatly they may differ in government, religion or manners....
          It is a necessary consequence of this equality, that each 
          nation has a right to govern itself as it may think proper, 
          and no one nation is entitled to dictate a form of government, 
          or religion, or a course of internal policy, to another.  No state 
          is entitled to take...notice of the domestic administration of             
         
another state, or of what passes within it as between the 
          government and its own subjects.  I. J. Kent, Commentaries 
          on American Law 21 (1st ed. NY: 1826-30)

H.R. 4453 constitutes a significant departure from this principle of equality among nations.  It declares the need of the “developed nations” to intervene in the domestic affairs of third-world nations experiencing internal conflicts, such as East Timor, Sierra Leone, Kosovo and Rwanda.  In the name of restoring peace and establishing democracy in those war-torn nations, H.R. 4453 promotes the creation and maintenance of an international military police deployment force with the capacity and authority “to control crowds, deter vigilante actions, prevent looting and disarm civilian agitators while, at the same time, winning the trust of the communities in which they are deployed.”  In short, it encourages the creation of an international police force to quell civil strife between competing political factions within the so-called developing nations.

As James Kent warned, over 170 years ago, nations and consortiums of nations have, throughout the ages, cited similar “noble” reasons for intervention into the domestic affairs of other nations, but in the hindsight of history, those reasons turned out to be profoundly duplicitous, as was the case of the ancient Romans who “pretended to take part with the oppressed for the sake of justice, though in reality for the purpose of dominion.”  Id. at 22 

Because of a long history "of unwarrantable and flagrant violations of the independence of nations” that had already accumulated by the late 18th century, it became a norm of international law that no nation could “justify” interference into the internal affairs of any other nation without  proof that the intervening nation’s “own security or essential interests were seriously endangered by the internal transactions of another state.”  No cause short of one justifying a declaration of war could support interference with the domestic affairs of another nation.  Id. at 22-23

H.R. 4453 turns its back on this settled international rule of law limiting the use of armed force, urging the return to an era where the only rule was that of raw power.  Although the Charter of the United Nations has given lip service to protecting the domestic jurisdiction of nations, the United Nations has disregarded this principle in relation to relatively weak nations, like Somalia, which has received the “benefit” of a United Nations' peacekeeping force to restore law and order, but observed it in relation to nations like Russia and Turkey, equally beset by internal conflicts.  Nothing in H.R. 4453 will change that reality.  To the contrary, the United Nations Rapid Deployment Police and Security Force, called for by H.R. 4453, will become the peacekeeping arm of the United Nations Security Council; itself composed of five permanent member nations - China, Russia, France, Great Britain and the United States - each of which will have veto power over the mission of such a force.  To be sure, none of these five nations - nor any of their allies - will be subject to the power of any Rapid Deployment Peace and Security Force.  Such a force will be employed only against the weak and disfavored nations of the world, such as was the case with the N.A.T.O. bombing of Kosovo. 

To guard against such temptations of the powerful over the weak among nations, and to ensure the international equality principle among nations, the founders of the United States lodged the power to initiate the use of armed force in Congress, lest the president - with singular executive power - misuse that power in foreign adventures of his own making.  Yet, modern Congresses and presidents have failed to heed these restrictions upon the use of United States  armed force.  The Charter of the United Nations has accelerated the transfer of more and more power to the president to wage war in the name of an international “police action.”  See Stromseth, “Rethinking War Powers: Congress, the President and the United Nations,” 81 Georgetown L. J. 597 (1993).   H.R. 4453, if enacted into law, would simply provide added legitimacy to the claim that the United Nations was created to police the world.

Under the Constitution of the United States of America, however, no such use of armed force against a nation, by the United Nations or otherwise, qualifies as an international police action; such use of armed force is only war.  Cf. Tuomala, “Just Cause: The Thread that Runs So True,” 13 Dick. J. Int’l. Law 1, 38 (1994).  To initiate a war, or other use of armed force in pursuit of foreign policy objectives under the Constitution of the United States of America, Congress - and therefore, the president - is constrained by the limited nature of the war power granted to Congress by Article I, Section 8.  As Professor Tuomala has noted, Congress was granted the power to declare war because it required a legislative judgment, not executive discretion because  “[t]he decision to go to war involves a legal question and a prudential judgment.”   Id. at 41   Legally, a nation may not use armed force against another nation without “just cause”  and “just cause,” in turn, requires judgments both of lawful right and prudential use of force. 

Under traditional international law, no nation has a lawful right to intervene in the domestic affairs of another nation unless the other nation is an unmistakable threat to the security of the intervening nation.  Because H.R. 4453 disregards this principle of just cause, it is constitutionally flawed and should be rejected.

III.  H.R. 4654 is a Constitutional Exercise of Congressional Authority Under the Necessary and Proper Clause of Article I, Section 8 of the United States Constitution

At the time of the founding of the United States of America, there was no international tribunal constituted to adjudicate disputes between nations.  Thus, when the representatives of Congress assembled in Philadelphia, Pennsylvania and declared the independence of the United States of America, they did not take their case to any international court to adjudicate their right to “dissolve the political bands” to the mother country and “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”  See J. Rabkin, Why Sovereignty Matters 10 (The AEI Press: 1998).   While they took their case to the world “court of public opinion,” they did not do so to ask permission to wage war against the English King and Parliament, but simply to “declare the causes which impel them to the separation.”  For the justice of their cause, however, they appealed to “the Supreme Judge of the world,” for as James Kent, quoting Lord Bacon, observed in his Commentaries, when one nation goes against another in war, “princes and states acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms.”  I J. Kent Commentaries on American Law, supra, at 45

With the advent of the United Nations after World War II, however, an International Court of Justice (I.C.J.) was constituted as an integral part of the Charter of the United Nations.  The I.C.J. was granted jurisdiction to resolve disputes between states.  From the beginning, however, its jurisdiction was not only limited to disputes between states, but it had no authority to “intervene in matters which are essentially within the domestic jurisdiction of any state.”  See Article 2(7) of the  Charter of the United Nations; Chapter II, Article 34 of the Statute of the International Court of Justice; and The Charter of the United Nations: A Commentary (B. Simma, ed., Oxford U. Press: 1995)(hereinafter “U.N. Charter Commentary).    Because its jurisdiction was so limited, states are exhorted by Article 33 of the charter and Article 36 of the statute of the I.C.J. to submit their disputes to the I.C.J. or other means of dispute settlement, but they are not required to do so.  U.N. Charter Commentary, supra, 149-51.  Thus, even weak nations have been able to refuse to submit their disputes to the I.C.J.

With the establishment of an International Criminal Court (I.C.C.) in Rome on July 17, 1998, under the auspices of the United Nations, however, there will soon be an international court with jurisdiction over alleged crimes committed by individuals, a jurisdiction that will be backed by force of the signatory nations.  Thus, for the first time in history, there will now be a court with worldwide jurisdiction over individuals who do not have the diplomatic and military power wielded by nations to protect themselves from an overreaching international tribunal.

H.R. 4654 is designed to remedy that problem.  Because the United States has, to date, refused to adopt the “Rome Statute of an International Criminal Court,” and because the statute contains no provision reserving to a signatory nation its claim of jurisdiction over its own citizens, it is incumbent on Congress to marshal the nation’s diplomatic, economic and military power to protect the liberties of American citizens serving overseas in countries that are signatories to the I.C.C.  Thus, Section 4 of H.R. 4654 prohibits any government official, federal, state or local from cooperating with the I.C.C. in its attempt to obtain jurisdiction over an American citizen.  Section 5 restricts United States participation in international peacekeeping operations only to those countries which certify that “United States military personnel are able to participate in a peacekeeping operation without risk of criminal prosecution” by the I.C.C.  Section 7, with some specified exceptions, withdraws all United States military assistance to countries that are    parties to the I.C.C.  Section 8 authorizes the president “to use all means necessary and appropriate to bring about the release of any person who, on account of their service to the United States abroad, are “being detained or imprisoned...by or on behalf of the” I.C.C.                      

So long as the United States remains an active participant in international affairs, it will send members of the armed forces and other American officials abroad to aid in the implementation of United States' foreign policy objectives.  Pursuant to its powers to regulate foreign commerce, to declare war, to raise and support armies and navies, and to define and punish piracies and felonies on the high seas and offences against the laws of nations, Congress has the power, under the necessary and proper clause of Article I, Section 8, of the Constitution of the United States of America, to make the rules determining the means by which its policies in those areas are to be carried out.  Additionally, pursuant to that same necessary and proper clause, it is for Congress to determine the rules governing the means whereby the president carries out his power to conduct the nation’s foreign policy.   H.R. 4654 is, therefore, well within the authority of Congress.

IV.  H.R. 4669 is a Constitutional Exercise of Congressional Authority to Make the Rules for the Government of American Armed Forces and to Ensure the Undivided Patriotic Loyalty of Citizens in Service of the Government of the United States

No issue was more divisive at the time of the ratification of the Constitution of the United States of America than the creation of a standing army in the time of peace.  To guard against executive misuse of military power, those who supported such an army because of “necessity” vested Congress with several powers, including the power “to make the rules for the Government and regulation of the land and naval forces.” J. Madison,  Notes of the Debates in the Federal Convention of 1787 481-82 (Norton Press:1966)   As Joseph Story observed:

          This [power] is a natural incident to the preceding powers to 
          make war, to raise armies,  and to provide and maintain 
          a navy...The whole power is far more safe in the hands of 
          congress, than of the executive; since otherwise the most 
          summary and severe punishments might be inflicted at the 
          mere will of the executive.  II J. Story,  Commentaries on the 
          Constitution Section 1192 (5th ed. 1891) [Emphasis added.]

When coupled with the power of the United States Senate to withhold its advice and consent to presidential appointments of subordinate executive officers - including military officers, as provided in Article II, Section 2, the legislative branch has been granted significant constitutional powers to guard against executive abuse of the power of military discipline.  See generally  Weiss v. United States, 510 U.S. 163, 169-76 (1994)   

Additionally, to ensure the undivided loyalty of citizens enrolled in the service of their country, whether as members of the armed forces, of the diplomatic corps or otherwise - uninfluenced by presidential favoritism towards other nations,  Article I, Section 9 prohibits, “without the consent of Congress,” the acceptance of “any present, Emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign state.”  This prohibition prompted St. George Tucker, the author of the first systematic commentary on the Constitution of the United States of America, to observe:

          Nothing can be more dangerous to any state, than influences 
          from without, because it must be bottomed on corruption 
          within.  Presents, pensions, titles and offices are alluring things.  
         
In the reign of Charles the second of England, that prince and 
          almost all his officers of state were either actual pensioners 
          of the court of France, or supposed to be under its influence...
          from that cause.  The reign of that monarch has been, accordingly,
          proverbially disgraceful to his memory.  St. G. Tucker, 
          View of the Constitution of the   United States 234 (Liberty Fund: 1999)  

Notwithstanding these constitutional delegations of power to Congress, and the existence of laws forbidding the wearing of foreign insignia as part of an armed servicemember’s uniform, United States service men and women have been threatened with prosecution - and prosecuted - for refusing to wear foreign insignia, such as emblems of the United Nations, and for refusing to submit to orders placing them under the command and control of foreign officers loyal to the United Nations, not to the United States.  See D. New, Michael New, Mercenary or American Soldier (3d Rev. ed. 1998)   

To date, military courts martial have even refused to entertain, on the merits, claims of the unlawfulness of such orders, even though such claims have been based upon statutes and constitutional provisions requiring express congressional consent to such overseas assignments.  See Final Brief on Behalf of Appellant in United States v. New, USCA Dkt. No. 99-0640/AR, Crim App. No. 9600263.  Indeed, the United States government has argued that these claims of unlawfulness raise “political questions” outside the jurisdiction of military courts martial.  See Final Brief on Behalf of Appellee in United States v. New, USCA Dkt. No. 99-0640/AR, Crim. App. No. 9600263.  Surely, it is a denial of due process of law to put military service members in jeopardy of liberty and property, and deny them statutory and constitutional defenses because the political interests of the nation are at stake!      

To remedy these deficiencies in the military justice system, Section 3 of H.R. 4669 prohibits requiring any “member of the armed forces...to wear as part of the military uniform any badge, symbol, headgear, or other visible indicia or insignia of the United Nations or any foreign state.”  Section 4 of H.R. 4669 prohibits requiring any “member of the armed forces...to serve in any capacity under an officer of the United Nations or any foreign state, except as specifically provided by law and, then, only during time of war declared by Congress in accordance with Article I, Section 8, of the Constitution.” 

These are salutary rules designed to protect the citizen soldier, sailor, marine, or airman who has taken an oath to protect, preserve and defend the Constitution of the United States of America from being court-martialed for obeying that oath by declining to serve under a commanding officer who has not only not subscribed to that oath, but has subscribed to an entirely different one whether it be to the United Nations or other foreign power.     

V.  Conclusion

For the reasons stated here, H.R. 4669 and H.R. 4654 are constitutional exercises of power and deserve support.  However, H.R. 4453 is unconstitutional and should be opposed.     


 

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