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A Debate Between Bill O’Reilly
and Law Professor Francis Boyle [The following is a transcript of Fox News' The O'Reilly Factor from September 13. CounterPunch friend Francis Boyle, a law professor at the University of Illinois, goes toe-to-toe with the rightwing talk show host on the legality of unilateral military strikes against Bin Laden's bases in Afghanistan.]
O’REILLY: While most Americans are united in their support of President Bush and the desire to bring Osama bin Laden and other terrorists to justice, there are some differing voices. Joining us now from Urbana, Illinois, is Francis Boyle, an international law professor at the University of Illinois at Urbana-Champaign
O’REILLY: Cut his mike. All right, now, Mr. Boyle, Professor Boyle, let’s have a little bit more of a rational discussion here. The United States now has to take action against certain segments in this world who we know have been harbouring people like Osama bin Laden. That’s going to happen. How will you react to that?
FRANCIS BOYLE, LAW PROFESSOR: Well, first I think you have to look at the law involved. Clearly what we have here, under United States domestic law and statutes, is an act of international terrorism that should be treated as such. It is not yet elevated to an act of war. For an act of war, we need proof that a foreign state actually ordered or launched an attack upon the United States of America. So far, we do not yet have that evidence. We could…
O’REILLY: All right, now why are you, why are you, why are you taking this position when you know forces have attacked the United States. Now, maybe they don’t have a country, but they are forces. They have attacked the United States, all right? Without warning, without provocation. Civilian targets. They’ve done everything that an act of war does.
So, I’m saying that because we live in a different world now, where borders don’t really matter, where terrorism is the weapon of choice, that you would declare war — if I were President Bush, I would declare war on any hostile forces, notice those words, professor, hostile forces to the United States. I would have a blanket declaration of war so I could go in and kill those people. Would I be wrong?
BOYLE: Well, Bill, so far you’ll note Congress has been unwilling to declare war. And indeed, this matter is being debated right now. Right now, it appears that what they are seeking is not a full declaration of war, but only what we law professors call an imperfect declaration, which means a limited use of military force under the War Powers Resolution of 1973. Precisely for the problem that we don’t know if any state was involved and we still do not know who was responsible for this undoubted terrorist attack upon the United States of America.
O’REILLY: All right, but we have the secretary of state saying that Osama bin Laden now has been linked into and, you know, we don’t have all the intelligence information, as President Bush said today. He’s not going to give us, and he shouldn’t, the people of America all the information that they have. But when the secretary of state gets up and says, look, we know this guy was involved to some extent, I believe him.
And he’s a wanted man, professor. He’s been wanted for eight years. The Clinton administration didn’t have the heart to get him and in the first few months the Bush administration didn’t either. We now know, and you just heard the FBI agent say that Afghanistan has been involved for years harbouring and training these kinds of people. Certainly, Afghanistan, Syria, Libya, Iran, Iraq, those five countries, certainly have been hostile to the United States and given safe harbour to these terrorists. That’s a fact.
BOYLE: Well, let me point out, the secretary of state was very careful in the words he used. He said Osama bin Laden was a suspect. He did not accuse him. And, again, under these circumstances…
O’REILLY: No, he didn’t use the word suspect. He used another word.
BOYLE: The account I read in, just off the wire service, said suspect. But let me continue my point. Under these circumstances, where we have 5,000 Americans dead and we could have many more Americans killed in a conflict, we have to be very careful, Congress and the American people and the president, in not to over-escalate the rhetoric, here.
We have to look at this very rationally. This is a democracy. We have a right to see what the evidence is and proceed in a very slow and deliberate manner.
O’REILLY: No, we don’t. We do not, as a republic, we don’t have the right to see what the evidence is if the evidence is of a national security situation, as you know.
Now, I’m trusting my government to do the right thing, here. I am trusting. But I think it’s beyond a doubt right now, beyond a reasonable doubt, which is, as you know, a court of law standard, that there are at least five, North Korea you could put in to, six states in the world that have harboured continually these terrorists.
Now, we know that this was a well-coordinated effort. Our initial intelligence shows that some of the people that have been arrested have ties to Osama bin Laden. We know, as you just heard the FBI agent say, that the 1993 bombing of the World Trade Center was tied in to a guy who knew bin Laden. So, bin Laden — I agree with you, that you don’t want to be a hothead. You don’t want to overreact. You don’t want to lob a missile at the pharmaceutical plant in the Sudan, which was terrible, and that was the one good point, or fair point, that Mr. Husseini made, you don’t want to do that.
But, on the other hand, professor, I think Americans are rightful, are right, to demand action against states that we know in the past have harboured these individuals and there’s a warrant out for Osama bin Laden’s arrest. So, if he is in Afghanistan, I would give that government a couple of days to hand him over, and if they did not, I’d go in.
BOYLE: Well, again. The American people are right. We need to see the evidence. I remember people saying a generation ago, during the Vietnam war, I trusted my government. And I think people of my generation found out that that was wrong. We needed more evidence.
O’REILLY: All right. Professor, let me stop you there, though. This is another point that Mr. Husseini tried to make. Just because the United States of America has made mistakes in the past, does not mean that we cannot defend ourselves now.
This is a unique situation in history. We have now been attacked by forces without borders, OK? We’ve been attacked. And it hasn’t been a military attack, it’s been an attack on civilians. The reason, the sole reason a federal government exists is to protect the people of the United States. And as I said in my “Talking Points” memo, they haven’t really done the job, for political reasons.
But now’s the time to correct those things. So, there’s going to be a reckoning, Professor. You know it’s going to happen. I know it’s going to happen. And it’s going to come down on Osama bin Laden first and maybe some of these rouge states later. Will you support that action?
BOYLE: Before I support a war that will jeopardize the lives of tens of thousands of our servicemen and women, I want to see the evidence that we are relying on to justify this. So far, I do not see it. I see allegations. I see innuendo. I see winks and I see nods, but I do not see the evidence that you need under international law and the United States constitution so far to go to war. Maybe that evidence will be there, but it is not there now.
My recommendation to Congress is to slow down, let’s see what develops and let’s see what this evidence is before we knowingly go out and not only kill large numbers of people, perhaps in Afghanistan and other countries, but undoubtedly in our own armed forces.
58,000 men of my generation will killed in Vietnam because of irresponsible behavior by the Johnson administration rushing that Tonkin Gulf resolution through Congress, exactly what we’re seeing now. And we need to pull back and stop and think and ask the hard questions and demand to see the evidence first, before we march off to war.
O’REILLY: All right, so it’s not enough that people arrested in the bombings of the embassies in Africa testified in court that Osama bin Laden was behind and financed and coordinated those bombings. That evidence is not enough for you?
BOYLE: Well, Africa is a very is a very different story than what happened in the World Trade Center.
O’REILLY: No, it’s not. He’s wanted, he’s wanted in the United States for the bombings of those two embassies. Is that evidence enough for you, professor, for the United States to go in and get this man? Is it enough?
BOYLE: That, that matter was treated and handled as an act of international terrorism in accordance with the normal laws and procedures of the United States of America as a question of domestic and international law enforcement. And I am suggesting that is the way we need to proceed here…
O’REILLY: Well, wait. You’re dodging the question professor.
BOYLE: … unless we have evidence that…
O’REILLY: Wait, professor. Professor. This is a no spin zone. Hold it. Hold it. Even out in Urbana Champagne, the no spin zone rules. You’re dodging the question. There is an absolutely rock solid arrest warrant out for this man. Evidence in court, testimony by people who did the bombings that this man was behind it. Is that enough evidence for you to have the United States go in and get him now? Is it enough?
BOYLE: The United States has been attempting to secure his extradition from Afghanistan. I support…
O’REILLY: Yeah, that’s long enough.
BOYLE: I support that approach as international…
O’REILLY: Come on already, I mean, eight years, we’ve been attempting to extradite this guy. Now’s the time to tell the Afghans you’ve got 48 hours or 72 hours to turn him over. You don’t turn him over, we’re coming in and getting him. You try to stop us, and you’re toast. Enough is enough, professor.
BOYLE: That’s vigilantism. It is not what the United States of America is supposed to stand for. We are supposed to stand…
O’REILLY: No, what that is is protecting the country from terrorists who kill civilians.
BOYLE: … for rule of law.
O’REILLY: It’s not vigilantism.
BOYLE: We are supposed to stand for rule of law, and that is clearly vigilantism. There is a Security Council, there is Congress, there are procedures and there are laws, and they are there to protect all of us here in the United States as well as…
O’REILLY: So, you’re telling me…
BOYLE: … as well as our servicemen and women. Look, Bill, if we allegedly, as you put it, go in, you are not going in, I am not going in. It’s going to be young men and women serving in our armed forces…
O’REILLY: And that’s their job. To protect us. But, professor, let me, you know, what you’re saying is, whoa, whoa, whoa, hold it. Hold it. Hold it. Hold it.
B0YLE: … with the constitution and the laws of the United
O’REILLY: We’re not violating any laws here, professor. No one is going to violate the law. There is going to be a state of war induced against states, states, terroristic states, who have attacked us. And what you’re saying is, though, and correct me if I’m wrong, you’re saying that even though there is a legitimate warrant out for Osama bin Laden’s arrest, and even though most civilized nations would honor that warrant and turn him over to us, extradite him to us, the vast majority of nations on earth would do that, you still are opposed for the United States to demand that the Taliban government arrest this man and turn him over? You are opposed to that?
BOYLE: During the Gulf War, President Bush’s father, who has far more experience that the current president Bush, got a Security Council resolution authorizing the United States of America to use force to expel Iraq from Kuwait. Second, President Bush’s father got a War Powers Authorization Resolution from Congress that gave him the constitutional authority to use military force to enforce that Security Council resolution.
What I’m calling for here is the same adherence to international law and the United States constitution that the first President Bush adhered to in dealing with Iraq.
O’REILLY: Well, you’ll get that, professor. That’s just a formality. There — nobody on Capitol Hill right now, they’re not going to — there’s no profile of courages up there anyway, usually. They’re going to give President Bush what he wants. If he wants a War Powers Act, they’re going to give it to him. He wants a declaration, they’re going to give it to him.
BOYLE: Actually, they’re arguing about it right now…
O’REILLY: They’re going to give it to him. But I’m not interested in that, because it’s going to happen. It’s going to happen.
BOYLE: The reports — no, the reports I read was that this President Bush initially asked for a blank check, and Congress balked because they had been suckered once before…
O’REILLY: All right, I’m not — speculation is not what I’m in — all right, professor. I don’t want to speculate. I’m just going to say in my opinion he’s going to have the authority to go in and get Osama bin Laden and his pals, wherever they are. He will get that authority, whether it takes a day or a week, he’ll get it. And once he gets it, now, that’s what I want to talk about here. Once he gets it, are you and others like you going to say, oh, no, we shouldn’t do this, even though we have proof of the man’s — masterminded the bombings in Africa and the Cole,testimony in Yemen, are you going to still say, even after the authority is granted by Congress, which it will be, no, don’t do it, let Afghanistan handle him? Are you going to still do that, professor?
BOYLE: Second, like his father, his father also got authorization from the United States, the United Nations Security Council under chapter seven of the United Nations charter…
O’REILLY: Oh, you want to go to U.N. now? You want the U.N. involved now.
BOYLE: Is exactly what his father did…
O’REILLY: So what?
BOYLE: And that’s exactly right.
O’REILLY: His father made a huge mistake by not taking out Sadam Hussein when he could of.
BOYLE: His father adhered to the required procedures under the United States constitution and the United Nations charter that is a treaty and the supreme law of our land. I expect the current President Bush to do exactly what his father did before he starts engaging in a massive military campaign in Iraq or against other countries…
O’REILLY: All right, I don’t know whether he’s going to go — I know he’s not going to let the U.N. dictate. He might go for a consensus. He’s already got it with Putin and all of our NATO allies, he’s already go that. Whether he goes — I think it would be a mistake to let — empowering the U.N. in this situation.
BOYLE: Then why did his father do this?
O’REILLY: I’m going — we’re going to wrap this up with this. I’m going to give my last summation and then you can give yours, I’ll give you the last word on it.
This is a fugitive we’re dealing with here. He has now been
tied in by U.S. intelligence agencies, according to Attorney General Ashcroft and the secretary of state, tied into this horrendous bombing here in New York. The United States must make a response to this, and I am agreeing with you in a sense, it can’t be a knee-jerk. It’s got to be done in a methodical way.
Congress will go along, they may debate it or whatever, but they will go along in either a War Powers, special War Powers Act or a declaration of war against forces hostile to the United States. Then they will go in and they will take him. This man you’re looking at on the TV screen is a dead man. He should be a dead man. You don’t do what he did and be allowed to walk around this earth.
Now, I’m distressed, professor, by your reliance, reliance on the strict letter of propriety, when we’ve got 10,000 people laying in the street about 22 miles from me right now. I want deliberation. I want methodical discipline, but I also want action. We know who this guy is. We know the governments that are protecting him. We know the other rouge states that have terrorist camps there. They all have to be dealt with, in my opinion. I’ll give you the last word.
BOYLE: Sure, I agree with you, Bill. He is a fugitive from justice and this should be handled as a matter as other fugitives from justice of international law enforcement. If indeed there is evidence that a foreign state orchestrated and ordered an attack against the United States then clearly that is an act of war that should be dealt with as such…
O’REILLY: What about harbouring?
BOYLE: Right now…
O’REILLY: Is harbouring an act of war?
BOYLE: In my opinion, no. And under the current circumstances, I don’t see it.
O’REILLY: All right, professor.
BOYLE: I think there is a distinction here.
O’REILLY: OK, all right, wrap it up, if you would.
BOYLE: I agree — I agree that the — if we go to war in a hasty manner here, we could see thousands of U.S. military personnel being killed without proper authorization by Congress or by the United Nations Security Council.
BOYLE: Our founding fathers decided that the most awesome decision we would ever make would be to go to war, and we have to be very careful in making that decision.
O’REILLY: All right, professor, I appreciate it very much. Thank you for your point of view.
BOYLE: Thank you, Bill.