<1.> The congress
shall have power...<10.>
To define and punish
piracies and felonies committed on the high seas,
and offenses against
the law of nations;
<11.> To declare war... and make rules concerning captures on land and
water; <12.> To raise and support armies... <13.> To provide and maintain
a navy; <14.> To make rules for the government and regulation of the land
and naval forces....
-- Article I,
Section 8, of the United States Constitution
10 states that “Congress shall define and punish offenses ... against the
Law of Nations.” What is the Law of Nations? I guarantee you
most constitutional scholars unfortunately do not know, but in the Law of
Nations lies the key as to which branch of government was given the
authority to make the laws of warfare (intelligence gathering for example)
and is even the key to how our founders believed we are supposed to treat
The Law of
Nations was a four-book treatise written by a Swiss legal scholar,
Emmerich de Vattel, in 1758. Early Supreme Court cases suggest to me that
there may have been several other treatises, by other authors, on the Law
of Nations, but the one by Vattel was by far the most prominent
and authoritative of the time. In reading it, you will find many of the
origins of our Declaration of Independence and our Constitution.
The third book of Vattel's Law of Nations is about how warfare
between nations is to be conducted.
Reading many sections of the four books of Vattel's Law of Nations
has clearly left me with two impressions.
The first impression
is that since the Constitution grants to the Congress the right to define
and punish offenses under The Law of Nations, that the founders intended
Congress to be the body that defined the laws of warfare. Let me say that
again. The founders intended Congress to be the body that defined the laws
of warfare and the founders did not intend for this power to be in the
hands of the executive. There is no comparable clause in the constitution
for the executive. This notion becomes even clearer when clause 10 on the
Law of Nations is read in conjunction with Clause 14 where Congress is to
make rules and regulation of the land and naval forces. The Law of Nations
has many of its own rules and regulations on the land and naval forces and
makes an excellent template on this subject.
Thus, the founders intended the executive to prosecute warfare within
the legal constraints that Congress enacts. If Congress passes a law that
says our soldiers can not rape the women of the enemy, the President does
not possess the prerogative to order the rape of the women of our enemies
even if he believes that raping the women of the enemy will bring about a
quicker end to the hostilities.
The second impression Vattel's Law of Nations has given me is that
there are two distinct types of wars: wars against sovereign nations and
wars against organizations or consortiums who are not sovereign nations.
The laws of warfare are decidedly different depending on which war one is
fighting. When there is warfare against a sovereign, the soldiers who are
fighting for the sovereign are doing so vicariously for the sovereign, and
have limited personal responsibility for their actions, so long as they
are not engaging in personal acts outside the purposes of the sovereign.
If captured, these soldiers were to be considered prisoners of war and
were to be returned home once the hostilities between sovereign nations
ceased. Under the law of nations, civil wars were to be treated as a war
On the other hand, a war perpetrated by non-sovereign fighters (called by Vattel's
Law of Nations a war of depredation) is for personal gain,
benefit or motive of the individual, and as such, the individuals are
treated as having committed personal crimes. Pirates were the terrorists
of their day. They fought wars of depredation. The punishment for fighting
a war of depredation was death. Pirates got the death penalty.
Nothing is new under the sun. Applying the principles of the Law of
Nations to the present day, it seems clear to me that the war against the
Taliban and the War against Saddam's Iraq were wars against sovereigns and
their soldiers should have been treated like ordinary prisoners of war.
When the fighting was over, they should have been released and returned
home. I also believe that the Iraq insurgency would be classified as a
second war between sovereigns although this is less clear.
It also seems clear to me that the war against Al Qaeda is a war
against non-sovereigns, (a war of depredation), and that the fighters of
al Qaeda should be treated as common criminals. That means that they are
entitled to a lawyer and a trial. If they are found guilty of being "enemy
combatants" then they are to be treated as having committed personal
crimes. Upon conviction, they are punished.
Under the Law of Nations, there is no such thing as a perpetual war
of depredation. A sovereign would not have been able to hold
prisoners indefinitely or suspend civil liberties indefinitely.
It is equally clear under the Law of Nations clause that if the
Congress enacts a law prohibiting our intelligence services from searching
the American public without a warrant in order to ensure that these
searches are reasonable searches under the fourth amendment, (warrantless
searches or searches without probable cause are presumed to be
unreasonable searches under the fourth amendment) the President is not
free to ignore this law. This is Congress' prerogative, not the
president's. And on this issue, clause 11, concerning captures, is also
supportive of congress' war prerogative as information can be captured as
well as people and property.
The Law of Nations is so instructive in gaining the proper
perspective on these issues, it is past time we brought the Law of Nations
back into our constitutional analysis.
has been a
licensed attorney for 28 years. He is licensed in Texas and Tennessee and
currently practices in Memphis, Tennessee. This article may be reproduced
provided it is not changed. The author encourages its dissemination. He
can be reached at:
* Text of Vattel's
Law of Nations
sections of Vattel's Law of Nations:
War of Depredation:
Book III, Sections 67 & 68
Declaration of War: Book III, Sections 51 - 64
Just and Unjust war: Book III, Sections 24 - 27
Treatment of Enemy Women and Children: Book III, Section 145
Prisoners of War: Book III, Sections 148 & 149
Poisoning the Enemy's Water: Book III, Section 157
Bombarding Towns: Book III, Section 169
Spying: Book III, Sections 179 - 182
On Civil War Producing two Sovereigns: Book III, Section 293
On the Nation's Constitution: Book I, Sections 27 - 31
On the Nation's Pursuit of Happiness: Book I, Section 110
On Free Speech: Book I, Section 114
Other Articles by David
Identities Protection Act and Why Karl Rove Legitimately Face Prosecution
* It's the
Corporate State, Stupid
Lying/Perjury vs. Fraud/Deceit
War Without WMD: An Appeal to the British