Iraq, human rights concerns, and legal justifications for war

[Sanford Levinson]

Mark Scarberry writes "it is clear that the administration's goal of
planting a human rights respecting democracy in the middle of the Arab
world is in part designed to advance international peace and security.
Whatever the President believed when he was only a candidate, he (among
others) had a change of heart after 9/11.   Thus making life better for
the Iraqis was at least instrumentally a reason for the Iraq invasion. "

 
My friend Jack Balkin has written about the phenomenon of "ideological
drift" (best exemplified by the devotion of the Philip Morris Co. to an
"absolute" freedom of speech even as many people on the left support the
suppression of "hate speech").  I think that one of the things we have
seen is the embrace of quite radical, indeed utopian, Wilsonianism by
many people who would define themselves as "conservatives" even as many
traditional liberals are embracing views more similar to those put forth
by conservative critics of "wars to end wars" and the like.  (And, of
course, such visions of national mission and presidential power bring
with them redefinitions of what the Constitution permits.)  
 
I confess that I'm torn about this, since I continue to find the
rhetoric and vision of the "internaional human rights community"
attractive in lots of respects.  It was Jimmy Carter's achievement to
make that an important part of American policy (to the derision of most
"realist" conservatives at the time), and I'd hate to see it given up.
On the other hand, as David Rieff and others have demonstrated, the road
to hell is indeed paved with good intentions, even if one concedes,
arguendo, Mark's point that Paul Wolfowitz's heart was pure (which in a
sense it probably was, unlike Dick Chency, who is simply implausible as
a person who cares about human rights than, say, Henry Kissinger).  
 
I suppose that Congress can "declare war" on another country for any
reason it wishes or, perhaps, even authorize a president to go to war
whenever a president thinks it would make the world better.  The
question is whether it is even remotely plausible to believe that
Congress would have passed the AUMF had it not been for the heavy
reliance on WMD and nuclear weapons, and I think the answer is, beyond a
reasonable doubt, no.  So the legal question is whether an AUMF passed
on those assumptions, even if it mentioned, in passing, democracy and
human rights, can be used to justify the Administration's current
policies (assuming we have the slightest idea of what those policies in
fact are).  
 
I hope that Mark's first classes are going well.
 
sandy
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