May 2,
2006
John,
Let me
begin with a wish I'm sure we share: that our children (and
theirs)
will live in a safer world -- one without the dangers of
terrorist
attacks, endless wars or environmental crises.
Law is
an attempt to accomplish that goal.
That is as true
internationally
as within the U.S. It's a fearful
prospect to imagine
a world
ruled simply by brute force, where each nation (or each
person)
can ignore the law "at the drop of a hat." Surely you do not
advocate
such a world.
It was
the United States that had a major role in creating modern
international
law after the end of WWII -- to "outlaw the scourge of
war." A treaty may have been created
internationally, but if our
Senate
ratifies it, then this isn't foreign law but becomes the
"highest
law of our land."
You
wrote me, "The basic fallacy I find with your position is that
international
law does not exist . . . except to whatever level each
nation
allows it to govern their actions, and even then it can be
ignored
at the drop of a hat." But then
the rest of what you write is
an
effort to justify legally the actions of our government -- which I
am
calling into question on legal grounds.
For
example, your arguments on UN SC Resolution 1441; here are its two
last
sentences:
UN SC
RES 1441 (8 Nov 2002, taken from http://www.un.org/documents/scres.htm)
"13.
Recalls, in that context, that the Council has repeatedly warned
Iraq
that it will face serious consequences as a result of its
continued
violations of its obligations;
"14.
Decides to remain seized of the matter."
The key
phrase is that the UNSC is "to remain seized of the matter."
In UN
formal legal language this simply means that only the UN SC --
and no
individual member state -- may interpret what "serious
consequences
" means and act unilaterally. This
resolution
specifically
does NOT grant any war-making powers.
The last phrase
makes
that unequivocally clear.
In
fact, I don't believe that the U.S. government has ever argued that
1441
gave us the right to initiate an invasion of Iraq. Instead
they've
argued something quite different: that because there was only
a
cease-fire agreement reached in 1991, the U.S. could decide
unilaterally
if and when it was broken and "continue" military action.
The legal problem with this argument is that
force had only been
authorized
for one purpose: to remove Iraqi troops from Kuwait. But
since
no one argued that there were still Iraqi troops in Kuwait, that
legal
argument fails.
The
U.S. obviously went to the U.N. in March 2003 to cover itself
legally. And the U.S. failed.
When it
failed to get the members of the UN SC to go along, it was
clear
to all that any military action was illegal.
In fact it was, as
I
wrote, the supreme war crime. If you're
interested, this link --
www.findarticles.com/p/articles/mi_qa3805/is_200401/ai_n9379618
-- is
a long
article in the George Washington Law Journal (Jan 2004) on
"Assessing
the Legality of Invading Iraq."
But in
a way -- even more damning than the fact that our 2003 war is
almost
universally understood to be an illegal war -- is the fact that
so few
Americans seem to care. As one example,
"[F]rom September 11
2001 to
March 20 2003 (when President Bush launched the invasion of
Iraq),
the New York Times editorial page never mentioned the words "UN
Charter"
or "international law" in any of its 70 editorials on Iraq,
despite
repeated invasion threats from the Bush administration within
this
time period." www.commondreams.org/views05/0710-22.htm
Today,
there are reports of U.S. Special Forces troops operating
inside
Iran -- presumably to fix targeting devices for a proposed
bombing
campaign, to arrange for sabotage of one kind or another,
and/or
to fund and coordinate opposition forces to create regime
change. All of these operations would arguably be
acts of war if done
here. By who's authority has the U.S. operated in
this way in a
sovereign
foreign country? Has Congress voted war
authorization?
Under
the heading "Imminent Threat" you wrote that "any intelligent
leader
doesn't allow a situation to rise to the level of being an
imminent
threat." But then any leader,
anywhere, can always imagine
possible
future threats from others. That's why
the word "imminent"
IS
used.
Here is
Abraham Lincoln arguing against preemptive war: "Allow the
President
to invade a neighboring nation, whenever HE shall deem it
necessary
to repel an invasion, and you allow him to do so, WHENEVER
HE MAY
CHOOSE TO SAY he deems it necessary for such a purpose - and
you
allow him to make war at pleasure. ... Kings had always been
involving
and impoverishing their people in wars, pretending ... that
the
good of the people was the object. This, our Convention understood
to be
the most oppressive of all Kingly oppressions, and they resolved
to so
frame the Constitution that NO ONE MAN should hold the power of
bringing
this oppression on us." (That's
Lincoln arguing against our
war of
conquest against Mexico.)
So the
President's presumption that he can initiate a war on Iraq --
and
aerial bombing is certainly an act of war -- whenever he decides
we are
in danger is a recipe for disaster.
That's
another disaster which I fear. Even if
Congress were to be
asked
to vote for such a war (calling it simply "use of force" or what
have
you) that by itself would not make it a legal war, anymore than
Congress'
vote in October 2002 made our current war in Iraq a legal
war. The case devolves again to the issue of
"imminent threat" and
the
requirement of U.N. authorization.
I don't
want to go over your other arguments whether what we did to
Iraq --
in 1991 or now -- was "reasonable."
There's a dictum which
makes a
lot of sense to me: Everyone always has his reasons. I
understand
the reasons for bombing civilian dual-use infrastructure in
the
most devastating way possible. I also
understand the reasons we
gave
for going to war in 2003. My point in
both cases is simply that
our
actions were illegal even in terms of the international law which
we have
incorporated into our law by ratification.
We are becoming a
rogue
state.
I wrote
in the very beginning that we should all rightly fear a world
ruled
by brute force, without a rule of law.
Virtually everyone
recognizes
the truth in this; and that's why we continue with efforts
to make
legal our actions which are becoming more and more illegal.
Whether
it's the holding of U.S. citizens without the right of habeas
corpus
-- the use of extraordinary rendition to send prisoners to
foreign
countries to be tortured on our behalf -- and now, the threat
of war
on Iran which we seem to be pursuing in exactly the same
mendacious
way we did with Iraq.
I have
one further request, John, aside from whatever comments you
have on
what I've written. We are both former
engineers. We should
therefor
have a high regard for what are the facts.
I've tried to
cite
the sources for what I claim whenever I can.
I would ask you to
do the
same.
As an
example, when you say that all of the Western intelligence
agencies
believed that Iraq had WMDs, what are the sources for that
assertion? I know that all kinds of commentators -- and
even many of
our
leaders -- say all kinds of things. But
that does not constitute
a
fact. I'm of the belief that intelligence
services do not publish
their
findings. And, given the pretty awful
track record of our
leaders
and pundits who "knew absolutely that Iraq has nuclear
weapons,"
etc, etc, I believe we should all be very critical to judge
what is
said in our media.
Bert
P.S.
John, I just realized that I meant to speak of Iran in this
paragraph
and instead wrote Iraq.
So the
President's presumption that he can initiate a war on Iraq --
and
aerial bombing is certainly an act of war -- whenever he decides
we are
in danger is a recipe for disaster.
A
friend just sent me this remarkable quote from a U.S. judge at
Nuremberg
in 1945. It sums up a U.S. that I am
proud of, a country
which
doesn't exclude itself from the rule of law.
"Our
position is that whatever grievances a nation may have, however
objectionable
it finds the status quo, aggressive warfare is an
illegal
means for settling those grievances or for altering those
conditions. Let me make clear that while this law is
first applied
against
German aggressors, the law includes, and if it is to serve a
useful
purpose, it must condemn aggression by any other nations,
including
those which sit here now in judgment"
[US Supreme Court Justice Robert Jackson at
the 1945 Nuremberg Tribunal]
Best
Regards,
Bert
I have responded with a few thoughts, but not with the level of
effort that I would have liked to have made.
John
John,
Let
me begin with a wish I'm sure we share: that our children (and
theirs)
will live in a safer world -- one without the dangers of
terrorist
attacks, endless wars or environmental crises.
Law
is an attempt to accomplish that goal.
That is as true
internationally
as within the U.S. It's a fearful
prospect to imagine
a
world ruled simply by brute force, where each nation (or each
person)
can ignore the law "at the drop of a hat." Surely you do not
advocate
such a world.
No, I don’t, but I also don’t want to turn the defense of this nation over to a body like the U.N. where countries like France could have veto power over strategic decisions affecting this nation.
It
was the United States that had a major role in creating modern
international
law after the end of WWII -- to "outlaw the scourge of
war." A treaty may have been created
internationally, but if our
Senate
ratifies it, then this isn't foreign law but becomes the
"highest
law of our land."
Right up to the point where it starts to work against the best interest of this country. Then our leaders will ignore it and move on.
You
wrote me, "The basic fallacy I find with your position is that
international
law does not exist . . . except to whatever level each
nation
allows it to govern their actions, and even then it can be
ignored
at the drop of a hat." But then
the rest of what you write is
an
effort to justify legally the actions of our government -- which I
am
calling into question on legal grounds.
For
example, your arguments on UN SC Resolution 1441; here are its two
last
sentences:
UN
SC RES 1441 (8 Nov 2002, taken from http://www.un.org/documents/scres.htm)
"13.
Recalls, in that context, that the Council has repeatedly warned
Iraq
that it will face serious consequences as a result of its
continued
violations of its obligations;
"14.
Decides to remain seized of the matter."
The
key phrase is that the UNSC is "to remain seized of the matter."
In
UN formal legal language this simply means that only the UN SC --
and
no individual member state -- may interpret what "serious
consequences
" means and act unilaterally. This
resolution
specifically
does NOT grant any war-making powers.
The last phrase
makes
that unequivocally clear.
In
fact, I don't believe that the U.S. government has ever argued that
1441
gave us the right to initiate an invasion of Iraq. Instead
they've
argued something quite different: that because there was only
a
cease-fire agreement reached in 1991, the U.S. could decide
unilaterally
if and when it was broken and "continue" military action.
The legal problem with this argument is that
force had only been
authorized
for one purpose: to remove Iraqi troops from Kuwait. But
since
no one argued that there were still Iraqi troops in Kuwait, that
legal
argument fails.
The
U.S. obviously went to the U.N. in March 2003 to cover itself
legally. And the U.S. failed.
When
it failed to get the members of the UN SC to go along, it was
clear
to all that any military action was illegal.
In fact it was, as
I
wrote, the supreme war crime. If you're
interested, this link --
www.findarticles.com/p/articles/mi_qa3805/is_200401/ai_n9379618
-- is
a
long article in the George Washington Law Journal (Jan 2004) on
"Assessing
the Legality of Invading Iraq."
But
in a way -- even more damning than the fact that our 2003 war is
almost
universally understood to be an illegal war -- is the fact that
so
few Americans seem to care. As one
example, "[F]rom September 11
2001
to March 20 2003 (when President Bush launched the invasion of
Iraq),
the New York Times editorial page never mentioned the words "UN
Charter"
or "international law" in any of its 70 editorials on Iraq,
despite
repeated invasion threats from the Bush administration within
this
time period." www.commondreams.org/views05/0710-22.htm
You make a great argument for proving that the Iraq war is against international law. So I ask: Why hasn’t the UNSC condemned the U.S. government for violating the law and the intensions of the UNSC??? And the answer proves my point: That international law doesn’t exist unless each nation wants to abide by the law (the UNSC ignores their own resolutions). Also, there is no enforcing agency. The only reason we got the UN to go into Korea was because the USSR walked out of the Security Council meeting. No major power will make that mistake again because they have VETO power.
Today,
there are reports of U.S. Special Forces troops operating
inside
Iran -- presumably to fix targeting devices for a proposed
bombing
campaign, to arrange for sabotage of one kind or another,
and/or
to fund and coordinate opposition forces to create regime
change. All of these operations would arguably be
acts of war if done
here. By who's authority has the U.S. operated in
this way in a
sovereign
foreign country? Has Congress voted war
authorization?
I know that Seymour Hersh wrote an article in the New Yorker about us having Special Forces troops in Iran, but I find it hard to believe. CIA operatives, perhaps, but not Special Forces. The timing is just too early for such an activity. Special Forces would go in days, weeks, or in the extreme case, months ahead of a ground assault, but I don’t think we are ever going to do that. An air attack, perhaps, if all diplomatic efforts fail, but that would only come after a long period of negotiations.
Under
the heading "Imminent Threat" you wrote that "any intelligent
leader
doesn't allow a situation to rise to the level of being an
imminent
threat." But then any leader,
anywhere, can always imagine
possible
future threats from others. That's why
the word "imminent"
IS
used.
Recall the Cuban missile crisis??? The situation simply was not going to be allowed to continue. Which American President would not have acted had the Russians not backed down?
Here
is Abraham Lincoln arguing against preemptive war: "Allow the
President
to invade a neighboring nation, whenever HE shall deem it
necessary
to repel an invasion, and you allow him to do so, WHENEVER
HE
MAY CHOOSE TO SAY he deems it necessary for such a purpose - and
you
allow him to make war at pleasure. ... Kings had always been
involving
and impoverishing their people in wars, pretending ... that
the
good of the people was the object. This, our Convention understood
to
be the most oppressive of all Kingly oppressions, and they resolved
to
so frame the Constitution that NO ONE MAN should hold the power of
bringing
this oppression on us." (That's
Lincoln arguing against our
war
of conquest against Mexico.)
So
the President's presumption that he can initiate a war on Iran --
and
aerial bombing is certainly an act of war -- whenever he decides
we
are in danger is a recipe for disaster.
That pretty much represents current US law. The President can start a military action against any country, but he has to go before Congress within so many days to justify his actions, and to get their approval to continue.
That's
another disaster which I fear. Even if
Congress were to be
asked
to vote for such a war (calling it simply "use of force" or what
have
you) that by itself would not make it a legal war, anymore than
Congress'
vote in October 2002 made our current war in Iraq a legal
war. The case devolves again to the issue of
"imminent threat" and
the
requirement of U.N. authorization.
I
don't want to go over your other arguments whether what we did to
Iraq
-- in 1991 or now -- was "reasonable." There's a dictum which
makes
a lot of sense to me: Everyone always has his reasons. I
understand
the reasons for bombing civilian dual-use infrastructure in
the
most devastating way possible. I also
understand the reasons we
gave
for going to war in 2003. My point in
both cases is simply that
our
actions were illegal even in terms of the international law which
we
have incorporated into our law by ratification. We are becoming a
rogue
state.
I
wrote in the very beginning that we should all rightly fear a world
ruled
by brute force, without a rule of law.
Virtually everyone
recognizes
the truth in this; and that's why we continue with efforts
to
make legal our actions which are becoming more and more illegal.
Whether
it's the holding of U.S. citizens without the right of habeas
corpus
-- the use of extraordinary rendition to send prisoners to
foreign
countries to be tortured on our behalf -- and now, the threat
of
war on Iran which we seem to be pursuing in exactly the same
mendacious
way we did with Iraq.
I
have one further request, John, aside from whatever comments you
have
on what I've written. We are both
former engineers. We should
therefor
have a high regard for what are the facts.
I've tried to
cite
the sources for what I claim whenever I can.
I would ask you to
do
the same.
As
an example, when you say that all of the Western intelligence
agencies
believed that Iraq had WMDs, what are the sources for that
assertion? I know that all kinds of commentators -- and
even many of
our
leaders -- say all kinds of things. But
that does not constitute
a
fact. I'm of the belief that
intelligence services do not publish
their
findings. And, given the pretty awful
track record of our
leaders
and pundits who "knew absolutely that Iraq has nuclear
weapons,"
etc, etc, I believe we should all be very critical to judge
what
is said in our media.
P.S.
John, I just realized that I meant to speak of Iran in this
paragraph
and instead wrote Iraq.
So
the President's presumption that he can initiate a war on Iraq --
and
aerial bombing is certainly an act of war -- whenever he decides
we
are in danger is a recipe for disaster.
A
friend just sent me this remarkable quote from a U.S. judge at
Nuremberg
in 1945. It sums up a U.S. that I am
proud of, a country
which
doesn't exclude itself from the rule of law.
"Our
position is that whatever grievances a nation may have, however
objectionable
it finds the status quo, aggressive warfare is an
illegal
means for settling those grievances or for altering those
conditions. Let me make clear that while this law is
first applied
against
German aggressors, the law includes, and if it is to serve a
useful
purpose, it must condemn aggression by any other nations,
including
those which sit here now in judgment"
[ US Supreme Court Justice Robert Jackson at the 1945
Nuremberg
Tribunal]
Best
Regards,
Bert