Neo-Conned! Again

by D Liam O'Huallachain

  Because international ability and will to respond to violations after they have occurred remain limited, it is crucial there be in-depth deliberation on the compatibility of future uses of force with international law prior to their initiation, within governments, in the United Nations, and in the public sphere. Concerning the United States in particular, it is imperative to build respect for international law within U.S. political culture, so that compliance with basic international obligations and constructive participation in international institutions can be effectively promoted by U.S. civil society as well as in international forums. Among other things, respect for international law requires rejection of two premises of the invasion of Iraq: that the United States has the right to engage in preventive war against states asserted to pose potential threats; and that the United States may enforce Security Council resolutions absent express authorization by the Council.

  1. Letter dated March 20, 2003, from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, S/2003/351.

  2. George W. Bush, The National Security Strategy of the United States of America (Washington, D.C.: The White House), September 2002, p. 15.

  3. See Barton Gellman, “Iraq's Arsenal Was Only on Paper: Since Gulf War, Nonconventional Weapons Never Got Past the Planning Stage,” Washington Post, January 7, 2004, online.

  1. U.S. Constitution, Article VI, Clause 2. Regarding the role of the UN Charter and international law and treaty regimes generally in U.S. law and foreign policy, see Nicole Deller, Arjun Makhijani, and John Burroughs, eds., Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions Regarding Security-Related Treaties (New York: Apex Press, 2003) pp. 1–18.

  2. UN Charter, Art. 103.

  1. A standard definition of customary international law is that it consists of universally binding rules based on general and consistent practices of states followed out of a sense of legal obligation.

  2. See Christine Gray, International Law and the Use of Force (Oxford, New York: Oxford University Press, 2000), pp. 111–115.

  3. Letter from Daniel Webster, U.S. Secretary of State, to British Lord Ashburton, August 6, 1842, regarding the 1837 Caroline affair.

  4. Oppenheim's International Law, Robert Jennings and Sir Arthur Watts, eds., 9th ed. (Harlow, Essex: Longmans Group U.K., Ltd., 1992), p. 412.

  1. See Hans Blix, Disarming Iraq (New York: Pantheon Books, 2004), pp. 177–178 and passim.

  2. Ibid.

  1. For an examination of possible techniques to effect such revision, see Michael Byers, “Preemptive Self-defense: Hegemony, Equality, and Strategies of Legal Change,” The Journal of Political Philosophy, Harlow, Essex Vol. 11, No. 2, 2002, pp. 171–190. For a critique of the U.S. doctrine arguing that the answer to the potential spread of nuclear weapons is not preventive war but rather global abolition of nuclear arsenals, see Peter Weiss and John Burroughs, “Weapons of Mass Destruction and Human Rights,” Disarmament Forum No. 3, 2004, pp. 26–28.

  2. United States v. Goering, 6 Federal Rules of Decision (1946), pp. 100–101.

  3. Resolution 487, June 19, 1981.

  4. See Thomas Graham, Jr., “Is International Law Relevant to Arms Control? National Self-Defense, International Law, and Weapons of Mass Destruction,” Chicago Journal of International Law, Vol. 4, No. 1, Spring, 2003, pp. 11–12.

  1. International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001).

  1. See, e.g., Amnesty International, “Iraq: 'Disappearances': Unresolved cases since the early 1980s,” October 1997; Amnesty International, “The Middle East: Fear, flight, and forcible exile,” September 1997; United Nations Development Fund for Women, “Iraq: Gender Profile,” (examining both pre-and post-war situations, collecting sources, online at www.womenwarpeace.org/iraq/iraq.htm). Human Rights Watch's contention, contested by some [see the interview with Jude Wanniski on pp. 3–79 of the companion to the present volume, Neo-CONNED!—Ed.], is that the violations of human rights and humanitarian law were so massive and deliberate as to amount to crimes against humanity and, in relation to the Kurds, genocide. See Justice for Iraq: A Human Rights Watch Policy Paper, December 2002; Human Rights Watch/Middle East, Iraq's Crime of Genocide: The Anfal Campaign Against the Kurds (New Haven: Yale University Press, 1995); Human Rights Watch/Middle East, Endless Torment: the 1991 Uprising in Iraq and its Aftermath (New York: Human Rights Watch, 1992). Humanitarian law is the set of rules imposing limits on the conduct of warfare and occupation. Most centrally, it prohibits attacks against civilians and attacks which indiscriminately harm civilians.

  1. E.g., John Yoo, “International Law and the War in Iraq,” American Journal of International Law, Vol. 97, No. 3, July, 2003, pp. 563–576; Ruth Wedgwood, “The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense,” ibid., pp. 576–585. See also the article by the State Department legal adviser, William H. Taft IV, and Todd Buchwald, Assistant Legal Adviser for Political-Military Affairs, State Department, “Preemption, Iraq, and International Law,” ibid., pp. 557–563.

  2. Statements of international lawyers opposing the impending war as illegal include “International Appeal by Lawyers and Jurists Against the 'Preventive' Use of Force,” February 15, 2003, coordinated by the International Association of Lawyers Against Nuclear Arms (www.lcnp.org/global/LawyersandJuristsAppeal.htm) and a January 15, 2003, open letter to the Security Council by the International Commission of International Law Jurists (online at www.eurolegal.org/useur/bbiraqwar.htm). See also C.G. Weeramantry, Armageddon or Brave New World? Reflections on the Hostilities in Iraq (Colombo, Sri Lanka: Weeramantry International Centre for Peace Education and Research, 2003). Weeramantry is a former vice president of the International Court of Justice.

  3. Patrick E. Tyler, “UN Chief Ignites Firestorm By Calling Iraq War 'Illegal,'” New York Times, September 17, 2004, online.

  1. See Blix, op. cit., p. 268. Head of UNSCOM prior to the war and an international lawyer, Blix writes: “There is something strange about the argument that the authority of the Security Council could be upheld by a minority of states in the Council ignoring the views of the majority. Can the will of the world be enforced by an action (in this case preemptive) by one or a few states, even when this action runs counter to the expressed will of the world?”

  1. Jules Lobel and Michael Ratner, “Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime,” American Journal of International Law, Vol. 93, No. 1, January, 1999, p. 125.

  2. Ibid, p. 128 and passim; Peter Weiss, “Presentation on the Illegality of the War,” World Tribunal on Iraq, New York session, May 8, 2004 (www.worldtribunal-nyc.org/Document/index.htm).

  3. Nicaragua v. United States, 1986 ICJ 14, ¶190.

  4. Rabinder Singh, QC, Alison Macdonald, Matrix Chambers, London, “Legality of Use of Force Against Iraq: Opinion,” September 10, 2002, p. 31 (online at www.lcnp.org/global/IraqOpinion10.9.02.pdf).

  THE EDITORS' GLOSS: Article I.8 of the Constitution gives Congress the power to “constitute Tribunals inferior to the Supreme Court … define and punish … Offenses against the Law of Nations … and make Rules concerning Captures on Land and Water.” But on November 13, 2001, President Bush issued a “Military Order” granting himself the power to detain and try by “military commission” – for “violations of the laws of war and other applicable laws” – anyone he determines is or was in al-Qaeda, “engaged in, aided or abetted, or conspired to commit, [undefined] acts of international terrorism,” or “knowingly harbored one or more” individuals in these categories. As the Order was developed, the usual suspects (David Addington, vice president's counsel; John Yoo, Justice Department lawyer; Timothy Flanigan, former deputy White House counsel) overruled military, State, and Justice Department experts – who wanted criminal or courts-martial proceedings for 9/11 and “war on terror” (GWOT) suspe
cts – because GWOT intelligence might be hard to get if defense lawyers and due-process got in the way (“After Terror, a Secret Rewriting of Military Law,” New York Times, October 24, 2004).

  The legality of so removing individuals from the criminal or military justice system was challenged by attorneys on behalf of Salim Hamdan. D. C. District Court Judge James Robertson stopped the commissions in November 2004 (see pp. 480–2). The government appealed and pressed ahead, an insider blaming Cheney for its intransigence (New York Times, March 27, 2005: “Cheney is still driving a lot of this”). Meanwhile, some of the commission's defense lawyers and even military prosecutors complained ofits “marginal” cases and “half-assed effort” (AFP, August 1, 2005). But on July 15 – in spite of 17 “friend of the court” briefs on Hamdan's side from retired JAGs, generals, and admirals; a Constitutional historian at the Library of Congress; and numerous international-, national-security-, and military-law academics and lawyers – the government won a reversal from a D. C. Appeals Court three-judge panel; it argued that the “Geneva Convention cannot be judicially enforced.”

  One of the three judges met the President for an interview the day before, and on July 20 he was nominated to the Supreme Court. It might be coincidental that John Roberts was tapped for the Court five days after he joined the decision that the President's “construction and application of treaty provisions is entitled to great weight.” Alternatively, Bruce Shapiro, writing in The Nation (July 20, 2005), suggests that Roberts's interview with the President was his oral exam, and the Hamdan decision was the “essay question.” Evidently he passed.

  CHAPTER

  25

  Legal Nonsense: The War on Terror and its Grave Implications for National and International Law

  ………

  An Interview with Prof. Francis Boyle, J.D., Ph.D.

  IN YOUR RECENT interview with Bill O'Reilly, he said that we had the right to roll into Afghanistan essentially (and simply) because bin Laden is a bad guy, and the Afghans were not cooperating. Do you see our refusal to make a traditional declaration of war against Afghanistan as a matter of convenience? Does it get us off the hook, morally and legally, from having to obey the normal rules of how wars are conducted and declared between one state and another?

  FB: I think they had already planned to go to war against Afghanistan beforehand, and it is abundantly clear from the so-called offer made by President Bush to the Afghan government that it was not really made in good faith. They were looking for a pretext, they got it, and they went to war.

  LID: Do you think they would have been caught off guard if Afghanistan had given way on all their demands?

  FB: It was reported on CounterPunch.org that they did, in fact, offer to turn over bin Laden, but this offer was never followed up. It is clear that bin Laden was a pretext, and 9/11 was a pretext. They needed a pretext to go to war against Afghanistan and Iraq, and they created the conditions to make it possible. It also seems to me that they knew the 9/11 attacks were going to happen, but that's another story.

  LID: Indeed. There's a lot about the mainstream story of 9/11 that doesn't make sense, but that is, as you say, another story. What struck us, as all this unfolded, was how non-traditional our approach to the whole thing was. They could have made an argument to make a real declaration of war against Afghanistan, but it seems to us that this approach was intentionally avoided.

  FB: I think Bush did seek a declaration along the lines of what Roosevelt got from Congress on December 8, 1941. The reason he sought it was that it would have made him a constitutional dictator. Fortunately, Congress did not give Bush a formal declaration of war, but he did try. Had he gotten one all the provisions of the U.S. Code would have applied, which give the President sweeping powers during a state of declared war.

  LID: So you say “fortunately” because of the powers of the U.S. Code that would have been granted to the President?

  FB: The book Presidential Power by Arthur Miller explains how, with a formal declaration of war by Congress, as happened in December 1941 and also in WWI, the President essentially becomes a constitutional dictator. He can pretty much do what he wants.

  LID: That's interesting. Although there are negative ramifications for how the prisoners are treated in an undeclared war, it sounds like one of the “benefits” has been that at least we avoided having a dictatorship on our hands in America – or at least more of one than we currently suffer.

  FB: It could have been a lot worse. Senator Byrd pointed out that the authorization that the President did get was not a formal declaration of war, but rather a limited authorization and subject to all the requirements of the War Powers resolution. He was not given a blank check.

  LID: Do you know how well he did in meeting any of those requirements?

  FB: Ha! That's a good one. The problem is that the President does not care. He believes clearly that he is above the Constitution of the United States. He has made it clear that he is not limited by anyone. But the fact remains that it is up to Congress to enforce its own war powers. The Constitution, Article I, Section 8, gives the power to Congress to go to war, not to the President. It is up to Congress to enforce this in the first instance, and ultimately for the American people to enforce this in default by Congress. This is why I started my campaign for impeachment. I called Ramsey Clark to discuss starting an impeachment campaign against the President over the war in Afghanistan. He felt that the public support was not there at that time, because the President had been very successful in brainwashing the American people into supporting what he was doing. But, in August 2002 Cheney began making his speeches against Iraq and the situation and atmosphere began to change. It appeared to be the same scenario they had pursued in Gulf War I under Bush Senior.

  LID: In following your impeachment efforts, we saw that you are waiting on an equivalent to Congressman Henry B. Gonzalez (D-Tex.), who -1 think many Americans don't know this – worked with you to attempt an impeachment of Bush 41 over the first Gulf War.

  FB: We are pressuring Congress. We need one member of Congress to propose a bill. Congressman Conyers did have a discussion on March 13, 2003, with 40 or 50 of his top advisors. He called Ramsey and me, inviting us to state the case for putting in immediate bills of impeachment against Bush, Cheney, Rumsfeld, and Ashcroft to try to head off the war. We did the best we could. The merits were debated quite extensively. The people there did not really disagree with us on the merits of impeachment but rather on the political practicality. John Podesta was there on behalf of the Democratic National Committee arguing that proposing a bill of impeachment might hurt the Democratic candidate in 2004. That is where we stand now. I think that advice was wrong. But I did not argue the point. I just argued the constitutional merits of impeachment. No one really disagreed with that. They were merely concerned with how it would play out in the November 2004 elections. Of course the Democrats were clobbered, but Ramsey and I agreed before the election to push forward, and that is what we are doing.

  LID: Do you have any hopefuls in terms of the Congressional sponsorship that you need?

  FB: Any one of them could do it. It's up to the people to pressure their representatives to put one in. But with the offensive, the destruction, and the killing in Fallujah – this is a crime against humanity. We have already lost some 1800 military people thanks to Bush, Cheney, Rumsfeld, and others. It seems to me that we owe it to those fallen troops to file bills of impeachment, and to make it clear that we are going to try to hold these war criminals to account not only for the dead U.S. soldiers, but also for the more than 100,000 dead Iraqis. If we do not act, this war is going to get well and truly out of control. General Shinseki publicly testified that we need several hundred thousand troops to occupy Iraq. He has been proven right. The troops there are sitting ducks, and what we need to do is get our troops out of harms way.

  LID: On another subject – but speaking of resisting war criminals and their crimes – we understand that you were able to act as c
ounsel for 28-year-old former Staff Sgt. Camilo Mejia, who was sentenced on May 21, 2004, to one year in prison for refusing to return to fight in Iraq.

  FB: That's right. He was the first resister. He saw everything, and was even asked to participate in the torture being conducted. He came back home on leave and after much soul-searching realized he could not continue in good conscience to participate in an illegal war. He filed for conscientious objector status as a result. He was court marshaled for desertion! Though he was the first to do so, he is unlikely to be the last. The Pentagon decided to make an example of him, to make a point to the rest of the troops who are beginning to get very restless. He is, of course, a hero, the first Amnesty-International-declared prisoner of conscience in America linked to this war.

  LID: A couple of thoughts on the legal background. We came across a comment made by Dr. Elizabeth Wilmshurst in England, who as you know resigned her post as deputy legal adviser to the Foreign & Commonwealth Office in the U.K. over the illegality of the Iraq war. She said, “lawyers hate the phrase 'war on terror.'” Do you share that sentiment?

  FB: If you see my book, Destroying World Order, there is a whole chapter entitled “Preserving the Rule of Law in the War on International Terrorism.” It is mere propaganda, a slogan that the Bush people have come up with to justify aggression, their own terrorism, war crimes, and torture elsewhere round the world. There is no generally accepted definition of terrorism. In practical terms, anyone who opposes what the U.S. does becomes “a terrorist.” The USSR did much the same thing after they invaded Afghanistan. Powerful governments as a rule call their opponents “terrorist,” thereby seeking some kind of “moral high ground.”