472law1.doc October 26, 1996 National Security Law DETERRENCE THEORY AND LEGAL THEORY: FROM SCHELLING TO GLENNON See Franck and Glennon, chapter 4, sections 1, 2, 3, 4. Mutual Security Treaties to which the U.S. is a party = Seven. Rio Treaty in Latin America: Reciprocal assistance to meet armed attacks against any American state. An armed attack against any American state shall be considered as an attack against all those states, and each undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self defense recognized in article 51 of the U.N. Charter (See Rio Treaty and U.N. Charter on the World Wide Web). Measures of self-defense may be taken until the U.N. Security Council has taken measures necessary to maintain international peace and security. Meeker (p. 514 in Franck and Glennon): Legality of U.S. Defense of Vietnam: IKE warning that any renewal of communist aggression would be viewed as a matter of grave concern and as threatening peace and security, followed by Southeast Asia Collective Defense Treaty that set up the Southeast Asia Treaty Organization (SEATO). Article IV of the SEATO Treaty intended to deter armed aggression with a series of bilateral relationships and a multilateral alliance. Parties agreed to act to meet common dangers in accordance with their constitutional processes. Leaves to each the judgment of what action to take in the event an armed attack occurs. IKE and JFK cited SEATO and gave assurances to South Vietnam. Glennon (p. 517): Constitutional Diplomacy [Mutual Security Treaties--the Commitment Myth] RIO Treaty does not bind the U.S. To take action in event of armed attack. No state shall be required to use armed force without its consent--the escape clause in a treaty. At issue is whether a treaty conferring war-making power on the President comports (is in accord) with the Constitution. Power to declare war resides jointly with the House and Senate (Article I, Section 8, U.S. Constitution). Framers decided not to confer upon the Senate the power to declare war. Believed that the President was slightly less accountable to the public; the Senate could better represent the interests of the people on war. Make it harder to start a war than to end it. Presidents wrong to argue that a treaty conferred discretionary authority to introduce armed forces into hostilities to enforce that treaty. Platt Amendment, 1904 treaty with Cuba relied on by Theodore Roosevelt to dispatch troops there in 1906. State Department relied on SEATO as support for military involvement in Vietnam during 1966. Faithful Execution clause (Article 2, Section 3) may not be used to support presidential introduction of armed forces into hostilities in order to carry out treaties. Framers intended to limit Presidential enforcement power to laws resulting from legislative action. Are United States mutual security treaties really obligations? In domestic contract law, treaties would be obligations but not in national security law. An illusory promise is an expression cloaked in promissory terms, but which upon examination reveals that the promissor has committed to nothing. Illusion lies in the retained option of non-performance. A contract does not exist unless its terms are reasonably certain. Courts enforce legal obligations not moral ones. Under domestic contract rules, U.S. mutual security treaties would be fatally defective. Members of the Senate repeated in debates on treaty ratification that the U.S. was committing itself to do only what it deemed appropriate. The U.S. retained the option of doing nothing. Commitment means that under some circumstances, armed forces will be required. Yet the treaties--all of them--in their express terms and equally in the legislative history are clear that under no circumstances is any party required to take military action. None of the treaties confers any war-making power on Presidents that they would not have had in its absence. Deterrence Dilemma: The prime purpose of mutual security pacts is deterrence of aggression. Deterrence is effective only to the extent that it is swift and sure. But speed and certainty are not hallmarks of democratic procedure, especially in the decision to use armed force. The evolution of Constitutionalism is a history of the decline of the war-making power as a prerogative of the executive. Negotiators wrote into mutual security treaties the fullest measure of commitment their domestic system would allow--zero. They rejected swift and sure deterrence in favor of the right to decide--to weigh the facts of the event, to judge whether an armed attack had actually occurred, to determine whether a military response was the most propitious, to consider all the factors relevant to action. In short, according to Glennon, commitment is a myth! Compare Schelling with Glennon in confer ps472 discussion.