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
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.
H.R. 4654 and 4669 are constitutional exercises of
congressional power, whereas H.R. 4453 is not.
Promotes the Unconstitutional Misuse of the United States
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:
are equal in respect to each other, and entitled to
equal consideration for their rights, whatever may
be their relative
dimensions of strength, or however
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.
is entitled to take...notice of the
domestic administration of
another state, or of what passes within it as
government and its own subjects. I.
J. Kent, Commentaries
on American Law 21 (1st ed.
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.
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
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
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.
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.
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
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.
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
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.
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
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
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
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
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
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
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.
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
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
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
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.
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
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 St
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:
[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
than of the executive; since otherwise the most
and severe punishments might be inflicted at the
mere will of
the executive. II
J. Story, Commentaries
Constitution Section 1192 (5th ed. 1891) [Emphasis
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)
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
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:
can be more dangerous to any state, than influences
without, because it must be bottomed on corruption
Presents, pensions, titles and offices are
the reign of Charles the second of England, that prince
almost all his officers of state were either actual pensioners
the court of France, or supposed to be under its
from that cause.
The reign of that monarch has been,
proverbially disgraceful to his memory.
St. G. Tucker,
View of the Constitution of
States 234 (Liberty Fund: 1999)
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)
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.
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!
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.”
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.
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.