------- Original Message --------
Subject: Obama's Afghan War Escalation
Date: Wed, 2 Dec 2009 08:42:00 -0600
From: Boyle, Francis FBOYLE@law.illinois.edu
To: Killeacle fboyle@uiuc.edu
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Copyright 2009 Atlantic Free Press
Atlantic Free Press
September 4, 2009 Friday 12:42 AM EST
LENGTH: 2295 words
HEADLINE: The Illegalities of the Bush/Obama War Against Afghanistan
BYLINE: Francis A Boyle
BODY:
Sep. 4, 2009 (Atlantic Free Press delivered by Newstex) --
by Francis A. Boyle
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 publicly 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
(OOTC:FRCT) 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.
Image results for 9/11 HIJACKERS
The 9/11 Hijackers - The FBI Mostly Saudi national's
Sep 27, 2001 ... The Federal Bureau of Investigation is today releasing 19 photographs of individuals believed to be the hijackers of the four airliners that ...
HTTP://www.fbi.gov/pressrel/pressrel01/092701hjpic.htmNo 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 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.
Mr. Francis A. Boyle is a Professor in International Law.
Newstex ID: ATFR-0001-37729315
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