Lawful authority in just war doctrine

In an earlier article, I set out the conditions that traditional just war doctrine says a war must meet in order to be morally legitimate, and argued that a war with Venezuela would not meet them.  Here I want to look more closely at one of those conditions, namely that a war can be just only if carried out by lawful authority.  It seems to me that many of those defending a prospective war with Venezuela too glibly assume that this condition has been met, and focus almost exclusively on what they take to be the justice of the cause.  I don’t think the justice of the cause has in fact been established, and indeed it has only become more doubtful in the week since my first article appeared.  But even if it had been established, that is by no means the only crucial consideration.

When just war doctrine says that a war can be legitimate only if carried out by lawful authority, the point is in part that private individuals have no right to declare and prosecute a war, no matter how just their cause.  Only governments have that right.  But that doesn’t mean that just anyone in government has the right.  As Francisco Suarez writes in his classic treatment of just war doctrine:

[A]n inferior prince, or an imperfect state, or whosoever in temporal affairs is under a superior, cannot justly declare war without the authorization of that superior.  A reason for the conclusion is, first, that a prince of this kind can claim his right from his superior, and therefore has not the right to declare war; since, in this respect, he has the character of a private person.  For it is because of the reason stated that private persons cannot declare war.  A second reason in support of this same conclusion is that such a declaration of war is opposed to the rights of the sovereign prince, to whom that power has been specially entrusted; for without such power he could not govern peacefully and suitably…

[A] war which, according to the preceding conclusion, is declared without legitimate authority, is contrary not only to charity, but also to justice, even if a legitimate cause for it exists.  The reason supporting this conclusion is that such an act is performed without legitimate jurisdiction, and is consequently an illegitimate act…

[H]e who makes war without the authorization in question, even if he has, in other respects, a just ground for so doing, nevertheless incurs the penalties imposed upon those who wage an unjust war. (The Three Theological Virtues: On Charity, Disputation XIII: On War, Section II)

Hence, suppose that the mayor of an American city, or the governor of some U.S. state, attempted to take the United States to war with Venezuela.  Obviously, such an act would have no legal or moral justification, for mayors and governors simply have no authority to do such a thing.  And equally obviously, this would remain the case regardless of the justice of their cause.

But under the U.S. constitution, the same thing is true of the President of the United States.  It is Congress rather than the President that has the authority to maintain and fund the armed forces and to declare war.  While the President is commander-in-chief, that entails only that he is in charge of prosecuting a war once it is initiated, not that he can himself initiate it.  To be sure, the War Powers Resolution – itself passed by Congress – adds that the President can take military action in limited ways such as repelling an immediate attack on the U.S.  But he must still consult with Congress and may not continue the action beyond sixty days without congressional approval.

Nor can it be said that custom has rendered such limitations a dead letter.  It is true that presidents sometimes have acted in ways that arguably go beyond them.  But when they have done so, this has typically been protested and resisted as contrary to the law, rather than accepted as a de facto norm.  Moreover, presidents still often do seek congressional approval, and are expected to do so, especially when proposing a major military action.  For example, the Bush administration’s wars in Iraq and Afghanistan and against terrorists were conducted under congressional Authorization for Use of Military Force (AUMF).  Naturally, one can question whether everything that that administration did was justifiable under just war criteria, but it does seem at least to have met the “lawful authority” condition.

Nor would it do to suggest that the U.S. constitution is merely man-made law and thus irrelevant to just war doctrine, which is a matter of natural law.  For it is part of standard natural law teaching that human law, like natural law, is binding in conscience as long as it is not contrary to the natural law.  Now, whatever one thinks of the way the U.S. constitution sets out war powers, it is not contrary to natural law.  One can argue that a different way of setting them out would have been better, but this gives one no right whatsoever to ignore or disobey the law as it actually stands.

And there are in fact good reasons for the limits the U.S. constitution puts on presidential power where war is concerned.  For while war can be just, it is extremely morally hazardous even in the best of circumstances, and the passions associated with it frequently overwhelm reason.  It should never be resorted to lightly, without very careful weighing of the relevant moral and practical considerations.  Limiting the president’s discretion where war-making is concerned facilitates this.  Addressing the question of how citizens can be confident that a proposed war is just, the eminent Catholic natural law theorist Heinrich Rommen wrote:

[F]reedom of the press and freedom of speech… afford a chance for the issue to be presented broadly and objectively and for both sides to be heard.  A good opportunity exists also where the representatives of the people have some control over the foreign policy of the government.  Another favorable factor would be a constitutional provision that the most concentrated competence of sovereignty – the declaration of war – be exercised “by plebiscite or at least by resolution of representatives of the people” …

Only where these factors in some way operate, has the individual citizen an access to the elements of fact and of law that make the justice of the case… [W]here the public authority is uncontrolled and the citizen is merely the subject of tendentious propaganda, he has hardly any access to the objective facts which constitute the truth and to the justice of the case, and must nolens volens rely upon authority.  (The State in Catholic Thought, p. 671)

Now, in the case of possible war with Venezuela, the Trump administration has not only not received congressional authorization, it has manifestly offered only “tendentious propaganda” in support of such action.  My previous article noted some examples of this, such as the attempt to stretch the word “terrorism” to cover actions which, while criminal and immoral, are simply not “terrorist” in the legal sense.  A similar sophistry was put forward this week, when the administration declared fentanyl to be a “weapon of mass destruction” (WMD).  This is as absurd as pretending that Saddam Hussein was a WMD (as some defenders of the Bush administration did when no actual WMD had been found in Iraq).  Like Saddam, fentanyl is very bad indeed.  But like Saddam, fentanyl is nevertheless not a “weapon of mass destruction” in any literal or legal sense.

President Trump also this week suggested that U.S. military action is justified because of Venezuelan theft of American “oil, land, and other assets.”  What he appears to have in mind is Hugo Chavez’s taking control of oil assets from various American companies almost twenty years ago.  But protecting corporate business interests is hardly a compelling reason to send American servicemen to die.  Moreover, some of the companies in question have been compensated, other claims are still being litigated, and the companies have indicated that they have no interest in returning to Venezuela anyway. 

Hence the administration has still failed to make the case that war with Venezuela meets the “just cause” condition of just war doctrine.  And in any case, as I have argued, it has also failed to meet the “lawful authority” condition.  It seems the administration itself may realize that much.  The Washington Post has reported that:

administration officials made a concerted push to reassure potential GOP defectors – walking back Trump’s repeated threats of escalation and sharing with them more details about its aggressive activities to disrupt the Latin American drug trade.

Crucially, it appears, Hegseth and Secretary of State Marco Rubio provided a classified briefing for select members of Congress where they indicated the administration is not currently preparing to target Venezuela directly and didn’t have a proper legal argument for doing so, people familiar with the meeting told The Washington Post. (emphasis added)

Let’s hope that, Trump’s rhetoric and the massive naval buildup notwithstanding, concerns about the legality of a war with Venezuela will prevent the administration from starting one.