Transcript
A (0:01)
Guess what day it is. It's French Friday. It's French fry day. So grab your fries and say hooray. David French is here to play on French Friday. It's French fry day. Hey, everybody.
B (0:18)
Welcome back to the Sky Pod. We have a French Friday episode because David French is with me. Hi, David.
A (0:23)
Hey, Scott. How are you? I'm all right.
B (0:25)
So the last time we did one of these, it came out on February 27, about 24 hours before the Iran war really kicked off on the 28th. Yeah, so, I mean, we talk once a month, so there's always a lot to talk about. Because events move so quickly, I was hoping we were not going to be talking about a new war in the Middle east, but here we are, right?
A (0:45)
Yeah.
B (0:46)
Okay, so big question to start things off with, and I've been reading different folks on this and trying to do my own research on it, and it seems pretty muddled. You are an attorney. You know the Constitution. You've practiced law, you teach law. You are a journalist who deals with politics all the time. You have a fantastic podcast on legal questions, particularly regarding the Supreme Court with Sarah Isger, advisory opinions like, I can't think of anyone better to ask this up. And you were a JAG attorney. Like you were in the military. So did the Trump administration adhere to the law and the Constitution in its decision to attack Iran?
A (1:28)
Absolutely not. It did not adhere to American constitutional law. But this is a weird one. Sky. Because this is a war, that would be just if it were legal. But because it's legal, it can't be.
B (1:43)
Just hold on, let me put my brain around that for a second. If it were legal, it would be just.
A (1:49)
Yes, but it is not legal. So therefore it by definition cannot be just so. In other words, there was reason to initiate armed conflict or to continue actually more properly, an armed conflict with Iran. In other words, under traditional international law, just war principles, which have been essentially codified in the UN Charter, which is you cannot launch aggressive war. Aggressive war is unlawful under the UN Charter. Aggressive war is unlawful under just war theory. And I'm going to use these two quasi interchangeably, because the UN Charter essentially, when it comes to the decision to initiate war, just ad bellum, it really does pretty much codify just war theory, and that is really war is only acceptable under one of three conditions. Defensive self defense of others, collective self defense. Think NATO Article 5. If Russia attacked Estonia, we would have just cause to defend Estonia. Or to prevent the never again calculus, to prevent crimes against humanity, genocide. But that's Supposed to be done genocide, ethnic cleansing. But that's supposed to be done under the auspices of the UN or you know, so the UN Security Council is ideally supposed to, for example, like it did in Libya in 2011, issue a security Council resolution authorizing members of the United nations to engage in armed force to stop crimes against humanity. So massacres of civilians, ethnic cleansing, genocide, things like that. So those are the three conditions under which, really broadly speaking, under which war is just and lawful. We are a signatory to the UN charter. We have, I believe we ratified it 89 to 2, maybe back in the 1940s, so overwhelmingly ratified it. We're a signatory to the UN charter. And so in those circumstances, that's where under international law you can go to war. Now, international law and American law are not the same thing. So under American law we should only be going to war when there is reason to go to war under the UN Charter and we have complied with domestic law and the Constitution in the process of going to war. So you have to do both of those things. For example, if Congress said authorized an invasion of Mexico just because we wanted Mexico, not Canada, to be the 51st state, that would be an unjust illegal war, even though authorized by Congress because it violates the UN Charter.
