Judging Freedom - It is Simply Not Our Fight, Unless...

Episode Date: March 15, 2022

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Hello there, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, March 15th, 2022. It's about 11.50 in the morning here on the East Coast, and the issue seems to be bubbling up everywhere this morning. Under what circumstances could the United States legally get involved in the war between Russia and Ukraine? Let me start by saying I condemn the war. I condemn what Vladimir Putin has done. He's a war criminal and his troops and their leadership have engaged in war crimes. Whether anyone will be prosecuted, of course, depends upon the outcome of the war. But it seems to a lot of people, and to me, that the drumbeats of war are getting louder.

There are many Republicans in the United States Senate who have encouraged the president to send American military jets for Ukraine pilots to fly. That'd be pretty close to a war. There was an arrangement whereby American military jets were going to be swapped for Russian MiGs. So the Polish Air Force would have American military jets and the Ukrainian Air Force would have Soviet-era MiGs that the Poles had. That would put very valuable American military equipment in a Polish airfield 15 miles from the Ukraine-Russia border, which would make of the subject of an attack. Well, if Poland is attacked, or if American personnel or assets in Poland are attacked, that triggers the NATO treaty. Under our system of government, the Supreme Court has ruled that a treaty is in the same category as the Constitution itself. Have presidents violated treaties? Of course they have.

But there would be tremendous pressure on President Biden to comply with the treaty, pressure from American political hawks, mainly Republicans in the Senate, and pressure from the other signatories to the NATO treaty for American troops to be on the ground to fight Russians, who under this hypothetical I've created would have attacked Poland. Can the United States legally get involved in this war between Russia and Ukraine? In a word, no. Unless Congress were to declare war on Russia, in which case there would be no basis for that. There'd be no moral basis for that. Russia hasn't threatened the United States. Declaring war on Russia would be absurd. The first thing Putin would do would be to press a half dozen buttons that would take out half of

Los Angeles. Now, we really don't want to go there. We don't want World War III. But without a declaration of war, there's no legal basis. and without an attack on a NATO country, there's no legal basis for President Biden to send troops in. It was written to restrain Nixon. Nixon vetoed it because he felt that it was unconstitutional that the president could do whatever he wants in wartime. It doesn't restrain the president. It liberates him. It allows the president of the United States to send American military troops anywhere in the world

for any reason he wants for 90 days and then for a second 90-day period at the end of which he must have the consent of Congress. It would be shocking if Joe Biden were to do that, President Biden, but he has the authority to do so. Shorthand, unless there's an imminent threat to the national security of the United States or unless Joe Biden wants to trigger this odd statute called the War Powers Resolution. It's a law, it's an act of Congress, but it's called a resolution. Unless he wants to trigger that, there's no legal way for him to get us involved. This becomes another Vietnam War where we get involved slowly, slowly, slowly, baby step by baby step. It'll be a catastrophe for the human beings there and a disaster politically.

And this divided nation of ours will be more deeply divided than it has ever been. I come from a position that we shouldn't fight a war unless it's necessary to preserve the security and the freedom of the United States. This dispute between Russia and Ukraine, as one-sided as the war is, as horrific as Vladimir Putin's behavior has been, as war criminal as the behavior of the Russian military has been, it is simply not our fight. Judge Napolitano, judging freedom.