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

 

 

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 donít, but I also donít 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 hasnít 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 doesnít 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 donít 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