Rayburn spoke first. “I’ve got to tell you,” he said, “I thought you were nuts. But I understood,” he acknowledged. “Predictable response to losing your best friend. Then when I heard what you wanted to know I knew you’d lost it. But the more I thought about it, the more I thought you might be on to something.” He opened the massive blue book in his hands. Adjusting his gold-rimmed glasses, he looked from Woods to Big. “I was going to show you the Constitution, and tell you how stupid you were. But when I read it again, I started thinking about it a little…” He fumbled with the book, trying to balance it on his lap while he flipped to the back.
“What is that?” Woods asked.
Rayburn glanced up at him. “What? Oh, this?” he said, looking at the book. “Kind of funny. Even though I’m a lawyer, I don’t really read the Constitution very often. I wasn’t even sure where to find a copy,” he said, chuckling. “This is my Con law book from law school. The Constitution’s in the back, in an appendix. First time I’ve pulled it out since I graduated five years ago. Never thought it’d be to see if we can declare war against somebody,” he said. “Let’s see,” he said. “Article I, Section 8… Congress shall have power to… it goes on for a while,” he said, turning the page, “but here it is, to declare war.”
Woods waited, watching Rayburn. “That’s it?”
“That’s it.”
“What does it mean?”
“Just what it says,” said Rayburn.
Woods spoke carefully. “Anything that would make it impossible for Congress to declare war against one guy?”
“I read the entire Constitution several times. I looked in every article, every section. I couldn’t find anything that says you can’t do it.”
“Are you kidding me?” Woods asked, his heart pounding.
Rayburn put up his hand. “But Con law isn’t just about reading the Constitution. The Supreme Court stopped reading it decades ago. It’s about what the cases say — it’s about what the Supreme Court says it says, not what it actually says.”
“So, what do they say?”
“I have a lot of case books aboard, most of the federal cases. I looked. And I got on the Internet and looked on Lexis.”
“And?”
“Never been dealt with at all. At least not that I can find. I may be missing something, but I haven’t found anything that would stop Congress from declaring war against the Sheikh.” He waited for a reaction from Woods. “I haven’t done a complete job of the research, but I feel pretty sure if I did I wouldn’t find anything. There isn’t even much in the law review articles. Lots of talk about the balance of power between the President and Congress, and talk of Letters of Marque since Congress pulled that stunt a few years ago, but nothing about declaring war against a person. In fact, what I’ve found so far shows that not only is there no prohibition it used to be ordinary.”
“What did?” Woods asked, confused.
“Declaring war against somebody by name. When you go back and look at how it once was done in England, centuries ago, they used to declare war against the king of Spain. As a person. Naming him as an individual. Sure, it was in his capacity as the King of whatever, but it named him as a person. So to say you can’t declare war on a person is simply wrong at least historically. The question is could we declare war against Joe Smith, a citizen of England. And I haven’t found anything that says Congress can’t do just that if it chooses to but it kind of goes against what war is. It’s sort of defined as against a sovereign country.” He paused. “But it seems to me the definition is ripe for expansion. We don’t get attacked by sovereign countries anymore. Our battles are against groups of people, or individuals. Seems like a great idea to me, and I don’t see anything that would stop you.”
“That’s amazing,” Woods said. “Nothing?”
“Nope. Not a thing. The more I’ve thought about it, the more I love the idea. This could change foreign policy forever…”
“See, Big! What’d I tell you?” Woods said. “It’s a great idea, isn’t it?” he asked Rayburn, seeking further confirmation.
“I don’t know why someone hasn’t thought about it before. It solves so many problems. It could add a few too, such as what to do with a country that is protecting a terrorist. But just put them on notice, and pretty soon they’d realize maybe it’s not such a good idea to let terrorists run training camps there. Could shut down the whole operation. I mean if Switzerland had allowed the Nazi armies to hide in Switzerland, you think we’d have just said, okay, no problem, we’ll wait? No chance. It would have been at their peril. There’s the doctrine of pursuit in warfare and international law. Nixon got in trouble for bombing Cambodia, which might be similar, but hey, they didn’t even declare war in Vietnam.” Rayburn adjusted his bent wire-rim glasses. “I think what would really happen is that there would be a huge constitutional law argument, about whether you really can do this or not. But at least as to whether there is something out there that says Congress can’t, it’s not there.”
Woods smiled like a little boy. “I really appreciate your help. I’ll let you know when he answers. We may hear about it on the news first, when Congress goes after the dicks that killed Vialli. Thanks.
“What about you, Padre?” Woods said, looking at him, then speaking to Rayburn. “The chaplain is an expert on ethics and warfare. That kind of stuff. He was going to help me convince Congress that it would be a just war. Right, Padre?”
Maloney’s round face flushed pink. “I didn’t see my role as convincing Congress that it would be a just war,” he said. “I was simply trying to analyze the situation as you described it, hypothetically, and bring my understanding of just war theories to bear…”
“Don’t go intellectual on us. What did you find?”
Maloney was clearly uncomfortable. He debated with himself whether to continue at all, but he saw no way to extricate himself. “I am hesitant to give you my preliminary conclusions, because if you send them off to your congressman they may be used to justify decisions with which I am not wholly comfortable. I came here only to discuss them with you. Having said that…”
“What’s the bottom line, Padre? Would it be a just war, or not?” Woods asked impatiently.
Maloney nodded. “I think it would. May I explain?”
“Did you write it down?”
“Yes, I prepared a preliminary analysis, very superficial…”
“Can I see it?” Woods said, sticking out his hand.
Maloney pretended not to hear him and spoke without looking at the document rolled up in his hand. “There are seven criteria. I have given some thought to each of them. First,” he said, touching his left forefinger with his right, counting, “it has to be the last resort, your last option; this may be, I don’t see any diplomatic options here. I don’t know enough to say. Second,” he said, continuing to count with his fingers, “it must be aimed at deterring or repelling aggression; this probably is. Third,” he said, sneaking a look at the paper he had rolled up, “it must be undertaken by legitimate authority; that, I take it, is your current objective, and why Mr. Rayburn is here. Fourth, it must be a right intention, such as defending against a great injury; this might qualify, since he shows no signs of quitting. Fifth, there must be probability of success; clearly, there would be. Sixth, there must be proportionality of goals and means; that remains to be seen, depending on what exactly we did after such a declaration—”
“And?” Woods asked. “Cut to the chase.”