A renowned constitutional scholar predicts a United States-led war with Iraq could result not just in the
loss of Saddam Hussein’s sovereignty, but that of the U.S. as well, which in turn leads to the loss of
personal liberty for individual American citizens.
It’s not that Herb Titus is anti-war. He just thinks President George W. Bush is going about it the
wrong way. Titus sees a hidden danger in the Bush administration’s need to appease the international
community by working through the diplomatic channels of the United Nations Security Council.
Security Council members in New York continue to debate proposals on the table that
range from declaring Saddam Hussein in material breach of Resolution 1441 and invading now, to
giving Hussein another six months to cooperate with U.N. weapons inspectors.
A one time dean of Regent School of Law and 1996 vice presidential candidate on the U.S.
Taxpayers Party ticket with Howard Phillips, Titus is considered one of America’s leading constitutional
scholars. He’s also an author and practicing
attorney specializing in constitutional litigation and strategy.
“Presidents have substituted Security Council authorization for constitutional declaration of war,”
Titus told WorldNetDaily.
And in doing so, he argues, Bush and his predecessors play into the hands of internationalists who
assert only the U.N. can authorize war and view the U.N. charter as trumping the U.S. Constitution.
“Article I, Section 8 is inoperative,” said Titus, referring to the Constitution’s mandate that the
decision to go to war come from Congress: “The Congress shall have power to … declare war, grant
letters of marque and reprisal, and make rules concerning captures on land and water.”
“Letters of marque and reprisal” refers to limited actions of war and was often used in the late 18th
century to authorize surgical attacks on lawless Muslim pirates harbored by Tunisia and Libya. The
“captures” cited as the third constitutional military option before Congress refers to the capture of naval
“The declaration of war is both a legal question and a practical decision,” Titus explains. “At the time
of the drafting of the Constitution, two factors were relevant: ‘Do you have good, legal reason?’ and ‘If
you have legal grounds for war, is it practical to declare war?’
“While presidents have not said as a matter of law that the U.N. charter trumps the Constitution, the
emphasis on the practical matter [seeking U.N. approval so that military action against Iraq isn't viewed
by the international community as aggression or U.S. imperialism] reinforces the legal claim of the
internationalists,” Titus continued.
He concludes that Congress has failed on both counts in allowing presidents to make both the legal
and practical decisions, and is complicit in the presidents’ giving up American sovereignty to the U.N.
Congress and war
Congress has not formally declared war since World War II.
In response to the Vietnam War, it passed the War Powers Act in 1973, which requires the president to seek congressional approval before or shortly after ordering any military action abroad, including limited airstrikes.
At least one congressman tried to adhere to the Constitution. Last October, Rep. Ron Paul,
R-Texas, proposed a declaration of war to his colleagues. Instead, Congress passed a resolution that
authorized the use of military force against Iraq, provided the international community supports it.
“Sadly, the leadership of both parties on the International Relations Committee fails to understand
that the Constitution requires a congressional declaration of war before our troops are sent into battle,”
Paul said after his proposal was voted down. “One Republican member stated that the constitutional
requirement that Congress declare war is an anachronism and should no longer be followed, while a
Democratic member said that a declaration of war would be ‘frivolous.’ I don’t think most Americans
believe our Constitution is outdated or frivolous, and they expect Congress to follow it.”
“It’s an undeclared, illegal war. Not only do I object to the war,” Paul told WorldNetDaily, “but I object
to the way the president is going about it.”
The Iraq resolution, which came through the International Relations Committee and was promoted by committee Chairman Rep. Henry Hyde, R-Ill., was proposed by Bush.
“Terrorists willing to commit suicide in order to kill large numbers of innocents cannot be stopped by
the familiar conventions of deterrence,” Hyde said in a statement released while the committee was
deliberating the resolution. “To assume that these terrorists and others will remain unarmed by Saddam
is an assumption with a deadly potential. … The president has demonstrated his determination to act to
remove this threat and has asked the Congress for an authorizing resolution. … In the name of those
brave souls, both living and departed, who purchased our freedom, let us now act,” he urged.
Worse than declaring nothing, Paul maintains, is that Congress transferred the authority to
go to war to the president.
“We should never have one man making the decision to send young men to war 6,000 miles from
our shore,” Paul told WND. “We still haven’t admitted to the 150,000 suffering from Gulf War Syndrome
– I’m convinced as a physician there is a syndrome. We shouldn’t be doing this so casually.”
As WorldNetDaily reported, a group of
Democratic lawmakers, soldiers and families of servicemen agree with Paul and filed a lawsuit in federal court, claiming war with Iraq would be
illegal and unconstitutional, and accusing lawmakers of unlawfully ceding the decision to President
“The president is not a king,” the group’s lead attorney, John Bonifaz, said at a news conference
announcing the suit. “He does not have the power to wage war against another country absent a
congressional declaration of war. Congress has not declared war.”
U.S. District Judge Joseph Tauro dismissed the suit Monday, ruling the judicial branch can only
judge the war policies of the other two branches of government when they’re in conflict. In this case,
Congress and the president are in agreement.
“If you want constitutional government,” said Titus, “don’t look to the courts for your salvation. Look
to yourselves and who you’re electing to office.”
Bush is not the first commander in chief to be sued over his military orders. A similar lawsuit was
filed against President George H.W. Bush before the 1991 Gulf War by 54 members of Congress. It
was denied by a federal judge in December 1990, who ruled the lawmakers did not have legal standing.
WorldNetDaily reported in 1999 that 26
congressional members filed a lawsuit against former President Clinton for violating both the
Constitution and the War Powers Act by allowing U.S. forces to participate in NATO air attacks
against Yugoslavia. The suit maintained that, according to the War Powers Act, Clinton must
seek congressional approval for the Balkan war if he wished to pursue it beyond 60 days.
U.N.: Higher authority?
Bush and other administration officials present Iraqi disarmament as the crucial next step in the
“war on terror.”
In his State of the Union address, Bush cited
evidence from intelligence sources, secret communications and statements by people now in custody
that Hussein aids and protects terrorists, including members of Osama bin Laden’s al-Qaida network.
Secretary of State Colin Powell subsequently laid
out the Bush administration case in detail before the Security Council and congressional panels,
claiming an al-Qaida cell based in Baghdad coordinates movement of people, money and supplies to
and throughout Iraq and was responsible for the ricin plot in London and other planned terrorist attacks
against countries including France, Spain, Italy, Germany and Russia.
Titus asserts officials use the word “war” as a “rhetorical device” with no more meaning than the
phrase “war on drugs” or “war on poverty.” He said the term is designed to elicit an emotional response
to silence detractors.
If the term were taken seriously, Titus thinks Bush should have submitted his cause for war in
careful and specific form to members of Congress last fall just as Powell did for members of the
Security Council. He argues Congress didn’t act on the basis of specific evidence and that’s why the
resolution authorizes the use of force but doesn’t outright declare war.
While the Iraq resolution enables Bush to abide by the War Powers Act, because “authorization of
military force” is not “declaration of war,” Titus concurs with Paul that war on Iraq does not pass
So Bush – and presidents before him – instead seeks a “higher authority,” says Titus, and subscribes to the rules of international law.
The U.N. charter was signed on
Jun 26, 1945, in San Francisco, at the conclusion of the United Nations Conference on International
Organization, and came into force on Oct. 24, 1945.
Although signed as a treaty, Titus said the charter was crafted more as a constitution for world
government. Its preamble reads like the Constitution, referring to “we the people” as opposed to “we the
member-nation governments.” It also has an amendment clause similar to Article 5 that allows amendments to the charter approved by a two-thirds majority of the General Assembly.
Titus argues because it’s a global constitution, the U.N. charter is illegitimate because it created a supranational government that derived its powers not from the consent of the governed but from the consent of the peoples’ government officials who have no authority to bind either the American people nor any other nation’s people to any terms of the charter.
Unlike the Constitution, the U.N. charter doesn’t authorize war, only police acts to keep the
peace. In fact, the charter’s preamble states the main objective of the signatories was to “save
succeeding generations from the scourge of war.”
This may, in part, explain the uphill battle Bush has faced in securing Security Council approval for the use of military force against Iraq.
Paul maintains “police acts” is merely “1984 newspeak” for war.
“Police acts are to keep the peace. But there’s no war in Iraq right now. We can’t go there to
establish peace if there’s no war,” he said.
Four years ago, Paul founded The Liberty Committee, an organization committed to rolling back the “socialists’ authoritarian agenda” at work in the national legislative process. Sixteen of Paul’s House colleagues joined a liberty caucus. Titus serves as senior legal adviser for the group.
The group touts one example of its successes on its website.
It cites legislation that was thwarted in December 2001 that would have “accelerated the transformation of the U.S. military into the standing army of the U.N. – a long-sought goal of the world socialists.”
Ironically, Hyde painted the Iraq resolution in terms of America asserting its sovereignty.
“For those convinced of Saddam’s murderous intentions, the debate has centered on whether or
not we should focus our efforts on assembling a coalition of friends and allies and seek the enhanced
legitimacy that approval by the United Nations might render to our actions. But I believe that is the wrong
debate,” he said in his statement last fall. “We have no choice but to act as a sovereign country
prepared to defend ourselves, with our friends and allies if possible, but alone if necessary. There can
be no safety if we tie our fate to the cooperation of others, only a hope that all will be well, a hope that
eventually must fail.”
Despite the rhetoric, Congress only equipped Bush with an authorization of military force, not a
declaration of war.
The difference, say Paul and Titus, boils down to subscribing to the U.N.’s world constitution,
instead of our own.
“I don’t believe in resolutions that cite the U.N. as authority for our military actions,” Paul said.
“America has a sovereign right to defend itself, and we don’t need U.N. permission or approval to act in
the interests of American national security. The decision to go to war should be made by the U.S.
Congress alone. Congress should give the president full war-making authority, rather than binding him
with resolutions designed to please our U.N. detractors.”
The difference is also a question of whether or not the military force achieves victory, according to Paul, who maintains history bears witness to the importance of a declaration of war.
“When Congress issued clear declarations of war against Japan and Germany during World War II,
the nation was committed and victory was achieved,” he said. “When Congress shirks its duty and
avoids declaring war, as with Korea and Vietnam, the nation is less committed and the goals are less
“When you don’t declare war for national security reasons, you wind up conducting war for political
reasons and you don’t get victory,” he concluded.