- - Thursday, August 25, 2016

Republican presidential nominee Donald Trump is more right than he knows about our NATO pledge to defend member nations from aggression. His many detractors on that score are ill-informed. They are echo chambers of the multi-trillion dollar military-industrial-counterterrorism-complex (MICC) terrified by the prospect of a quietus for presidential wars.    

Both Mr. Trump and his detractors are wrong. But his detractors are more wrong than him.

On July 20, Mr. Trump hedged on whether as president he would defend Baltic State members of NATO from Russian aggression in an interview with reporters David Sanger and Maggie Haberman of The New York Times:

SANGER: If Russia came over the border into Estonia or Latvia, Lithuania, places that Americans don’t think about all that often, would you come to their immediate military aid?

TRUMP: I don’t want to tell you what I’d do because I don’t want Putin to know what I’d do…

SANGER: They are NATO members, and we are treaty-obligated—

TRUMP: We have many NATO members that aren’t paying their bills.

SANGER: That’s true, but we are treaty-obligated under NATO, forget the bills part.

TRUMP: You can’t forget the bills…

SANGER: My point here is, Can the members of NATO, including the members in the Baltic, count on the United States to come to their military aid if they were attacked by Russia? And count on us fulfilling our obligations–

TRUMP: Have they fulfilled their obligations to us? If they fulfill their obligations to us, the answer is yes.

HABERMAN: And if not?

TRUMP: Well, I’m not saying if not….”

The all-star team of the MICC, ranging from Democratic presidential nominee Hillary Clinton to Republican Sen. Lindsey Graham, immediately assailed Mr. Trump’s evasion of a putative United States NATO obligation under Article V to go to war on behalf of any member nation that is attacked. Mr. Sanger made that assumption in the Trump interview, and Trump did not directly contradict it. But the assumption is demonstrably false, and thrives only because it suits the ideological needs of Empire.

A page of history speaks volumes of logic over the interpretation of NATO’s Article V.

President Woodrow Wilson’s League of Nations treaty was defeated by Senator Henry Cabot Lodge. His opposition was provoked by the treaty’s obligation on the United States to employ military force to defend the borders of other nations without a congressional declaration of war required by Article I, section 8, clause 11 of the United States Constitution.

President Harry Truman learned from President Wilson’s defeat in negotiating the United Nations Charter. When it came to the use of military force authorized by the United Nations Security Council, Article 43, paragraph 3, stipulated that agreements for the use of the armed forces of member nations “shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.” The United States Constitution requires congressional authorization for any offensive use of the military. President George Washington, who presided at the constitutional convention, sermonized: “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.” In accord with President Washington and more than 150 years of constitutional understanding and practice, President Truman cabled Senator Kenneth McKellar on July 2, 1945, “When any such [United Nations] agreement or agreements are negotiated [for the use of American armed forces] it will be my purpose to ask Congress for appropriate legislation to approve them.”

The 1949 NATO treaty was antedated by Senate Resolution 239 (Vandenberg Resolution) on June 11, 1948. It endorsed United States participation in regional and other collective security arrangements that honor “constitutional process,” i.e., require congressional authorization for offensive use of the United States Armed Forces to defend foreign nations.

The NATO text of the following year is faithful to the Vandenberg Resolution. 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 on them all and consequently they agree that…each of them…will assist the Party or Parties so attacked by taking…such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.” Companion Article 11 makes clear, however, that decisions to use armed force shall be made in accord with the respective constitutional processes of the member nations: “This Treaty shall be…carried out by the Parties in accordance with their respective constitutional processes.” For the United States, that means Congress, not the President acting unilaterally, decides whether to authorize use of the armed forces to defend NATO members from aggression.

That would be the rule even without NATO Article 11. The United States Supreme Court declared in Reid v. Covert (1957) that treaties are subordinate to the Constitution. They may not disturb the allocation of powers in our constitutional scheme. The Office of Legal Counsel of the U.S. Department of Justice endorsed this understanding in a Memorandum Opinion advising the President and the Attorney General dated February 12, 1980.

This is the upshot. Contrary to the propaganda of the MICC and its exponents, the President would be prohibited by the Constitution from employing the armed forces to defend the Baltic States from Russian aggression without a congressional declaration of war or equivalent legislation. The same constitutional prohibition would apply if any other NATO member were attacked. Conventional wisdom expounded in the corridors of power that teaches the opposite is indefensible.

The law in all Empires, however, is like a spider’s web. It catches the weak and poor, but is torn to shreds by the rich and powerful, to borrow from Honore de Balzac.

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