- - Thursday, May 25, 2017

ANALYSIS/OPINION:

Article 5 of the 29-member North Atlantic Treaty Organization (NATO) has been willfully misinterpreted to accommodate the vaulting ambition of the American Empire for world domination.   

Article V does not and constitutionally could not require the United States to commence war if a NATO member is attacked. For example, if Montenegro were attacked by Serbia. A congressional declaration of war would be necessary to defend a NATO member from aggression under the Declare War Clause of the U.S. Constitution, Article I, section 8, clause 11.    

But the law bends to become an instrument of power, not of justice.  The plain meanings of words are routinely ignored under the banner of Realpolitik.  Article V is exemplary, as a few pages of history and the treaty text demonstrate.

The Declare War Clause was unanimously supported by every participant in the drafting, debating, and ratifying of the Constitution.  It entrusts to Congress exclusive responsibility for taking the nation from a state of peace to war.  All participants understood the Executive would be an untrustworthy steward of the war power because of the temptation to initiate hostilities gratuitously to aggrandize executive power generally.  

James Madison, father of the Constitution, wrote to Thomas Jefferson:   “The constitution supposes, what the History of all Govts demonstrates, that the Ex. 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 Legisl.”   James Wilson, future Supreme Court Justice and delegate to the constitutional convention, explained to the Pennsylvania ratifying convention that the Declare War Clause required the House of Representatives as well as the Senate and President to concur before war could be commenced:

“This 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 interest can draw us into war.”

In other words, a treaty ratified by the Senate alone without the House of Representatives cannot bind the nation to war under any circumstances.  Indeed, the League of Nations Covenant was rejected by the Senate for precisely that reason.  President Woodrow Wilson insisted on Article 10, which would have required the United States to defend militarily every boundary in the world without a congressional declaration of war.  It provided:

“The members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.”

The defeat of the League of Nations Covenant informed the United States drafters of the post-World War II United Nations Treaty.  Thus, Article 43, paragraph 3 of the document stipulates that signatory nations will make available to the United Nations Security Council (UNSC) armed forces to maintain international peace and security “in accordance with their respective constitutional processes.”  For the United States, that means a congressional declaration of war is necessary to commit the armed forces to fight under the banner of the UNSC.

Thus, President Harry Truman cabled Senator Kenneth McKellar during the Senate’s deliberations on the United Nations Treaty:  “When any such [Article 43] agreement or agreements [for the use of the United States armed forces] are negotiated it will be my purpose to ask Congress for appropriate legislation to approve them.”  The understanding that only Congress—not the President and Senate acting via a treaty-can commit the United States to war was reinforced by Section 6 of the United Nations Participation Act enacted on December 20, 1945. It authorizes the President to negotiate an agreement or agreements with the UNSC for the use of the armed forces of the United States “which shall be subject to the approval of the Congress by appropriate Act or joint resolution.”

NATO was negotiated in 1949 against this background and constitutional understanding of the war power.   Article 5 provides in relevant part:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”

But Article 11 of NATO, a direct descendant of Article 43, paragraph 3 of the United Nations Treaty, clarifies that any use of the armed forces by NATO parties in carrying out Article 5 must be in accord with their respective constitutional processes:   “…Treaty…provisions [shall be] carried out by the Parties in accordance with their respective constitutional processes.”  For the United States, that means Congress must enact a declaration of war before the President may employ the armed forces to defend a NATO Member from external aggression.  Article 5 is not and could not be made to be self-executing— even by amending NATO.  The United States Supreme Court held in Reid v. Covert (1956) that treaties are subordinate to the Constitution.  The Declare War Clause may not be circumvented by any treaty whatsoever.

But the common contemporary understanding of Article 5 of NATO in the United States is the opposite.  Our craving for world domination, aka world leader, in the aftermath of World War II has caused us to ignore or distort the plain meaning of words to accommodate the American Empire.  It began with President Truman’s Orwellian characterization of the Korean War as a “police action” to evade the Declare War Clause.  It has continued ever since.  Article 5 of NATO is only one of countless examples. 

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