February 25, 2022
Senator Mark R. Warner
United States Senate
703 Hart Senate Office Building
Washington, D.C. 20510
RE: Article 5 of NATO-Congress entrusted with implementation
Dear Senator Warner:
This letter responds to your statement made on NPR’s All Things Considered on Thursday, February 24, 2022, regarding Russian aggression against Ukraine with possible spillover effects in Poland, a NATO member:
“If you shut down Polish hospitals because they can’t get power to take care of their people, you’re rapidly approaching what could be viewed as an Article 5 violation of NATO, which basically says if you attack one NATO nation – and Poland is a NATO nation – all of the remaining 29 nations need to come to their assistance. We are in an uncharted territory.”
Contrary to prevailing orthodoxy, Article 5 does not and constitutionally could not commit any NATO signatory to militarily defend a member nation from external aggression. Article 11 clearly provides that all of NATO’s provisions shall be implemented in accord with the respective constitutional processes of its members: “This Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.”
The Declare War Clause of the Constitution entrusts to Congress alone decisions to employ the United States Armed Forces offensively not in response to an actual or imminent attack on the United States itself. Thus, then Secretary of State Dean Acheson, testifying before the Senate Foreign Relations Committee in support of NATO in 1949, explained: “[Article 5] does not mean that the United States would automatically be at war if one of the other signatory nations were the victim of an armed attack. Under our Constitution, the Congress alone has the power to declare war.”
In drafting Article 11 of NATO, the authors were not writing on a clean slate. The United Nations Charter similarly declared that member’s military contributions to enforce United Nations Security Council Resolutions under Chapter 7 would be “in accordance with their respective constitutional processes.” Congress specified in the U.N. Participation Act of 1945 that agreements to provide military forces under Chapter 7 “shall be subject to the approval of Congress by appropriate Act or joint resolution.”
Moreover, no treaty, which is ratified by the Senate alone without the House of Representatives, can displace the exclusive constitutional prerogative of Congress to take the nation from a state of peace to war. Reid v. Covert, 354 U.S. 1, 17 (1957) (“This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.”)
In sum, Members of Congress, not the President, are constitutionally and politically responsible for deciding whether a United States military response should be made to Russia’s aggression against Ukraine and its ramifications for NATO members. The responsibility cannot be delegated by Congress to the President without violating the Constitution’s separation of powers.
Sincerely,
Bruce Fein
Bruce Fein is a former associate deputy attorney general under President Reagan and author of American Empire Before The Fall.