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CounterPunch
September
17, 2002
Is Bush's War Illegal?
Let Us
Count the Ways
by Francis Boyle
The "Blowhard
Zone"
On September 13, 2001 I got a call from FOX News
asking me to go on the O'Reilly Factor program that night, two
days after the tragic events of September 11, to debate O'Reilly
on War v. Peace. It is pretty clear where I stood and where
he stood. I had been on this program before. I knew what I
was getting in to. But I felt it would be important for one
lawyer to get up there in front of a national audience and argue
against a war and for the application of domestic and international
law enforcement, international procedures, and constitutional
protections, which I did.
Unfortunately, O'Reilly has the highest
ranked TV news program in the country. I thought someone should
be on there on September 13. I think most people agree that
I beat O'Reilly. By the end of the show he was agreeing with
me. But the next night he was saying that we should bomb five
different Arab countries and kill all their people. But let
me review for you briefly some of the international law arguments
that I have been making almost full time since September 13.
They are set forth in the introduction in my new book, The
Criminality of Nuclear Deterrence.
Terrorism v.
War
First, right after September 11 President
Bush called these attacks an act of terrorism, which they were
under the United States domestic law definition at that time.
However, there is no generally accepted definition of an act
of terrorism under international law, for reasons I explain in
my book. Soon thereafter however and apparently after consultations
with Secretary of State Powell, he proceeded to call these an
act of war, ratcheting up the rhetoric and the legal and constitutional
issues at stake here. They were not an act of war as traditionally
defined. An act of war is a military attack by one state against
another  state. There is so far no evidence produced
that the state of Afghanistan, at the time, either attacked the
United States or authorized or approved such an attack. Indeed,
just recently FBI Director Mueller and the deputy director of
the CIA publically admitted that they have found no evidence
in Afghanistan linked to the September 11 attacks. If you believe
the government's account of what happened, which I think is highly
questionable, 15 of these 19 people alleged to have committed
these attacks were from Saudi Arabia and yet we went to war against
Afghanistan. It does not really add up in my opinion.
But in any event this was not an act
of war. Clearly these were acts of terrorism as defined by United
States domestic law at the time, but not an act of war. Normally
terrorism is dealt with as a matter of international and domestic
law enforcement. Indeed there was a treaty directly on point
at that time, the Montreal Sabotage Convention to which both
the United States and Afghanistan were parties. It has an entire
regime to deal with all issues in dispute here, including access
to the International Court of Justice to resolve international
disputes arising under the Treaty such as the extradition of
Bin Laden. The Bush administration completely ignored this treaty,
jettisoned it, set it aside, never even mentioned it. They paid
no attention to this treaty or any of the other 12 international
treaties dealing with acts of terrorism that could have been
applied to handle this manner in a peaceful, lawful way.
War of Aggression
Against Afghanistan
Bush, Jr. instead went to the United
National Security Council to get a resolution authorizing the
use of military force against Afghanistan and Al Qaeda. He failed.
You have to remember that. This war has never been authorized
by the United Nations Security Council. If you read the two
resolutions that he got, it is very clear that what Bush, Jr.
tried to do was to get the exact same type of language that Bush,
Sr. got from the U.N. Security Council in the late fall of 1990
to authorize a war against Iraq to produce its expulsion from
Kuwait. It is very clear if you read these resolutions, Bush,
Jr. tried to get the exact same language twice and they failed.
Indeed the first Security Council resolution refused to call
what happened on September 11 an "armed attack"--that
is by one state against another state. Rather they called it
"terrorist attacks." But the critical point here is
that this war has never been approved by the U.N. Security Council
so technically it is illegal under international law. It constitutes
an act and a war of aggression by the United States against Afghanistan.
No Declaration
of War
Now in addition Bush, Jr. then went to
Congress to get authorization to go to war. It appears that
Bush, Jr. tried to get a formal declaration of war along the
lines of December 8, 1941 after the Day of Infamy like FDR got
on Pearl Harbor. Bush then began to use the rhetoric of Pearl
Harbor. If he had gotten this declaration of war Bush and his
lawyers knew full well he would have been a Constitutional Dictator.
And I refer you here to the book by my late friend Professor
Miller of George Washington University Law School, Presidential
Power that with a formal declaration of war the president
becomes a Constitutional Dictator. He failed to get a declaration
of war. Despite all the rhetoric we have heard by the Bush,
Jr. administration Congress never declared war against Afghanistan
or against anyone. There is technically no state of war today
against anyone as a matter of constitutional law as formally
declared.
Bush, Sr. v.
Bush, Jr.
Now what Bush, Jr. did get was a War
Powers Resolution authorization. Very similar to what Bush,
Sr. got. Again the game plan was the same here. Follow the
path already pioneered by Bush, Sr. in his war against Iraq.
So he did get from Congress a War Powers Resolution authorization.
This is what law professors call an imperfect declaration of
war. It does not have the constitutional significance of a formal
declaration of war. It authorizes the use of military force
in specified, limited circumstances.
That is what Bush, Sr. got in 1991.
It was to carry out the Security Council resolution that he had
gotten a month and one-half before to expel Iraq from Kuwait.
But that is all the authority he had--either from the Security
Council or from Congress. And that is what he did. I am not
here to approve of what Bush, Sr. did. I do not and I did not
at the time. But just to compare Bush, Jr. with Bush, Sr. So
Bush, Jr. got a War Powers Resolution, which is not a declaration
of war.
Indeed, Senator Byrd, the Dean of the
Senate, clearly said this is only a War Powers authorization
and we will give authority to the president to use military force
subject to the requirements of the War Powers Resolution, which
means they must inform us, there is Congressional oversight,
in theory, (I do not think they are doing much of it), controlled
funding, and ultimately we decide, not the Executive branch of
the government--we are the ones who gave the authorization to
use force.
Again very similar to what Bush, Sr.
got except the Bush, Jr. War Powers Resolution is far more dangerous
because it basically gives him a blank check to use military
force against any state that he says was somehow involved in
the attack on September 11. And as you know that list has now
gone up to 60 states. So it is quite dangerous, which led me
to say in interviews I gave at the time this is worse that the
Tonkin Gulf Resolution. Better from our perspective than a formal
Declaration of War, but worse constitutionally and politically
than the Tonkin Gulf resolution. But still subject to the control
of Congress and the terms of the War Powers Resolution. Indeed
you might be able to use that War Powers Resolution and the authorization
in litigation that might come up. Keep that in mind.
No War Against
Iraq!
For example, on Iraq. Right now they
cannot use that War Powers Resolution to justify a war against
Iraq. There is no evidence that Iraq was involved in the events
on September 11. So they are fishing around for some other justification
to go to war with Iraq. They have come up now with this doctrine
of preemptive attack. Quite interesting that argument, doctrine
was rejected by the Nuremberg Tribunal when the lawyers for the
Nazi defendants made it at Nuremberg. They rejected any doctrine
of preemptive attack.
Nazi Self-Defense
Then what happened after failing to get
any formal authorization from the Security Council, the U.S.
Ambassador Negroponte-- who has the blood of about 35, 000 people
in Nicaragua on his hands when he was U.S. Ambassador down in
Honduras--sent a letter to the Security Council asserting Article
51 of the U.N. Charter to justify the war against Afghanistan.
And basically saying that we reserve the right to use force
in self-defense against any state we say is somehow involved
in the events of September 11. Well, the San Francisco Chronicle
interviewed me on that and asked what is the precedent for this?
I said that the precedent again goes back to the Nuremberg Judgment
of 1946 when the lawyers for the Nazi defendants argued that
we, the Nazi government had a right to go to war in self-defense
as we saw it, and no one could tell us any differently. Of course
that preposterous argument was rejected by Nuremberg. It is
very distressing to see some of the highest level of officials
of our country making legal arguments that were rejected by the
Nuremberg Tribunal.
Kangaroo Courts
Now let me say a few words about the
so-called military commissions. I have a little handout out
there called "Kangaroo Courts." It would take me
a whole law review article to go through all the problems with
military commissions. I have been interviewed quite extensively.
I have some comments on it in my book. Professor Jordan Paust,
a friend and colleague of mine at the University of Houston,
just published an article in the Michigan Journal of International
Law which I would encourage you to read. It goes through
the major problems. But basically there are two treaties on
point here that are being violated at a minimum.
First, the Third Geneva Convention of
1949. I will not go through all of the arguments here but it
is clear that just about everyone down in Guantanamo (not counting
the guys who were picked up in Bosnia and basically kidnapped)
but all those apprehended over in Afghanistan and Pakistan would
qualify as prisoners of war within the meaning of the Third Geneva
Convention of 1949, and therefore have all the rights of prisoners
of war within the meaning of that convention. Right now however,
as you know, all those rights are being denied. This is a serious
war crime. And unfortunately President Bush, Jr. himself has
incriminated himself under the Third Geneva Convention by signing
the order setting up these military commissions. Not only has
he incriminated himself under the Third Geneva Convention, but
he has incriminated himself under the U.S. War Crimes Act of
1996 or so, signed into law by President Clinton and making it
a serious felony for any United States citizen either to violate
or order the violation of the Four Geneva Conventions of 1949.
The Federalist
Society Cabal
I am not personally criticizing President
Bush. He is not a lawyer. He was terribly advised, criminally
mis-advised, by the cabal of Federalist Society lawyers that
the Bush administration has assembled at the White House and
the Department of Injustice under Ashcroft. President Bush,
Jr., by signing this order, has opened himself up to prosecution
anywhere in the world for violating the Third Geneva Convention,
and certainly if there is evidence to believe that any of these
individuals have been tortured, which is grave breach, let alone
at the end of the day executed. So this is a very serious matter.
I did not vote for President Bush, Jr.
But I certainly think it is a tragedy that these Federalist
Society lawyers got the President of the United States of America,
who is not a lawyer, to sign the order that would incriminate
him under the Geneva Conventions and United States Domestic Criminal
Law. This is what happened.
Jeopardizing
U.S. Armed Forces
Moreover, by us stating we will not apply
the Third Geneva Convention to these people we opened up United
States armed forces to be denied protection under the Third Geneva
Convention. And as you know, we now have U.S. armed forces in
operation in Afghanistan, Georgia, the Philippines, in Yemen
and perhaps in Iraq. Basically Bush's position will be jeopardizing
their ability to claim prisoner of war status. All that has
to happen is our adversaries say they are unlawful combatants
and we will not give you prisoner of war status. The Third Geneva
Convention is one of the few protections U.S. armed forces have
when they go into battle. Bush, Jr. and his Federalist Society
lawyers just pulled the rug out from under them.
U.S. Police
State
In addition the International Covenant
on Civil and Political Rights clearly applies down in Guantanamo.
It applies any time individuals are under the jurisdiction of
the United States of America. Guantanamo is a colonial enclave,
I will not go through its status any further. But clearly those
individuals are subject to our jurisdiction and have the rights
set forth therein--which are currently being denied.
If and when many of these Bush, Ashcroft,
Gonzalez police state practices make their way to the U.S. Supreme
Court, we have to consider that a five to four majority of the
Supreme Court gave the presidency to Bush, Jr. What is going
to stop that same five to four majority from giving Bush, Jr.
a police state? The only thing that is going to stop it is the
people in this room.
Francis A. Boyle,
Professor of Law, University of Illinois, is author of Foundations
of World Order, Duke University Press, and The
Criminality of Nuclear Deterrence, Clarity Press. He
can be reached at: FBOYLE@LAW.UIUC.EDU
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