Illegalities of Bush War Against Afghanistan

[Mark Pavlick]

>
>  The Illegalities of the Bush, Jr. War Against Afghanistan*
>
>by
>
>Professor Francis A. Boyle
>
>USA Patriot Act Legal Briefing
>
>National Lawyers Guild
>
>Chicago, Illinois
>
>17 July 2002
>
>
>
>[Verbatim Transcript Revised]
>
>The "Blowhard Zone"
>
>. . . On September 13 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.
>
>Thank you.


>
>Francis A. Boyle
>Law Building
>504 E. Pennsylvania Ave.
>Champaign, IL 61820 USA
>217-333-7954(voice)
>217-244-1478(fax)
><mailto:fboyle at law.uiuc.edu>fboyle at law.uiuc.edu
>


>
>
>
>*(c)Copyright 2002 by Francis A. Boyle. All rights reserved.