Using Article 5 of the NATO treaty to legalize the war against ISIS

As co-blogger David Bernstein points out, the recent horrifying terrorist attack against France gives the Obama administration an opportunity to legalize its previously unconstitutional war against ISIS. Up until now, the war has been illegal because the president lacks congressional authorization for it. Assuming (as is highly likely), that ISIS was indeed behind the attacks, the United States has a legal obligation to help defend France under Article 5 of the 1949 North Atlantic treaty, which created the NATO alliance. Here is the relevant text:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

France is a signatory of the North Atlantic treaty, and Friday’s brutal terrorist attack surely qualifies as an “armed attack against [France] in Europe.” Therefore, the US now has a legal obligation to consider the attack against France as an attack against the US itself, and to “assist” France with “such action as it deems necessary,” including “the use of armed force.”

Some scholars and jurists contend that it isn’t possible for a nation-state to be in a true state of war with a private terrorist organization. Even if this is correct, by this point ISIS qualifies as a state-like entity, having seized control of a large portions of Syria and Iraq. In any event, the NATO treaty applies to all “armed attacks” on the signatories in “in Europe or North America,” regardless of the qualify as a war or not. The NATO allies did in fact invoke Article 5 after the 9/11 attacks against the US, an incident with obvious similarities to the attack on France.

Article VI of the Constitution makes treaties the “supreme law of the land” if they were made “under the authority of the United States.” This, at the very least, allows the president, with Senate ratification, to make legally binding commitments to use the powers of the federal government, which clearly include the power to wage war, and otherwise use military force. Article 5 of the North Atlantic Treaty is such a commitment, and it pretty clearly applies in this case.

The Alliance could formally invoke Article 5 by doing so at a meeting organized in accordance with Article 4, which requires member states to “consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.” However, the US likely has a legal obligation to aid France under Article 5 even in the absence of an Article 4 consultation.

France is a signatory of the North Atlantic treaty, and Friday’s brutal terrorist attack surely qualifies as an “armed attack against [France] in Europe.” Therefore, the US now has a legal obligation to consider the attack against France as an attack against the US itself, and to “assist” France with “such action as it deems necessary,” including “the use of armed force.”

Some scholars and jurists contend that it isn’t possible for a nation-state to be in a true state of war with a private terrorist organization. Even if this is correct, by this point ISIS qualifies as a state-like entity, having seized control of a large portions of Syria and Iraq. In any event, the NATO treaty applies to all “armed attacks” on the signatories in “in Europe or North America,” regardless of the qualify as a war or not. The NATO allies did in fact invoke Article 5 after the 9/11 attacks against the US, an incident with obvious similarities to the attack on France.

Article VI of the Constitution makes treaties the “supreme law of the land” if they were made “under the authority of the United States.” This, at the very least, allows the president, with Senate ratification, to make legally binding commitments to use the powers of the federal government, which clearly include the power to wage war, and otherwise use military force. Article 5 of the North Atlantic Treaty is such a commitment, and it pretty clearly applies in this case.

The Alliance could formally invoke Article 5 by doing so at a meeting organized in accordance with Article 4, which requires member states to “consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.” However, the US likely has a legal obligation to aid France under Article 5 even in the absence of an Article 4 consultation.

UPDATE: James Stavridis presents a related argument for invoking Article 5 in this recent article in Foreign Policy. GOP presidential candidates John Kasich and Marco Rubio have also urged NATO action under Article 5. None of them, however, has drawn the connection to the domestic constitutional rationale for the war.

UPDATE #2: Obviously, it might be politically difficult to rely on Article 5 if France does not want NATO assistance for whatever reason. However, President Francois Hollande has already called Friday’s attack an “act of war” pinned the responsibility on ISIS, and stated his determination to wage the war aggressively. Most likely, therefore, the French would welcome Article 5 support from the US and other NATO allies.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain and Democracy and Political Ignorance: Why Smaller Government is Smarter.

Deja un comentario

Tu dirección de correo electrónico no será publicada. Los campos obligatorios están marcados con *