Real Change Newspaper

February 21-27, 2007


A Poisoned Chalice

Congress is the wrong place to debate the central question on Iraq: Is the war legal?


Guest Writer


Last week, the House of Representatives passed its non-binding resolution opposing the troop surge, 246-182. Senate Republicans having twice succeeded in stifling the same measure, the House may be as far as that bill gets. But with bills for military funding still to consider, both legislative bodies will soon return to the issue of Iraq: when to get out, and how.

With all the discussion, something exceptional has not been happening. There has been virtually no serious debate about whether the Iraq war is legal. Or even how to determine if it is legal.

This disregard for the rule of law is exceptional!

At Nuremberg in 1945, the U.S. led the world in declaring that a war of aggression was the "supreme international crime" — a crime against the peace. The United States accepted that any war is a war of aggression unless approved by the UN or in self-defense, and then only until the UN can be convened.

This is international law as ratified by the United States. Moreover, international law is incorporated in our military law. U.S. Army Field Manual 27-10, Section 498, says: "Any person ... who commits an act which constitutes a crime under international law is… liable to punishment. Such offenses in connection with war comprise: (a.) Crimes against peace. (b.) Crimes against humanity. (c.) War crimes."

Lt. Ehren Watada is the first commissioned officer to have refused deployment to Iraq because he believes the war is illegal. If the war is illegal, he is legally obligated—under both military and Constitutional law—not to fight in it. Yet the military judge in his court martial refused to permit discussion of the legality of the war.

Richard Falk, Professor Emeritus of International Law at Princeton University, said that if Lt. Watada "has no chance to even raise that issue before this military tribunal [court martial], then it's such a blatant denial of justice as to itself constitute a kind of crime because he's being criminally disallowed from obeying the law. Franz Kafka didn't have such a macabre imagination."

What did The Seattle Times have to say on the issue? In an editorial titled "The case against Lt. Ehren Watada," the word "legal" does not appear once. The paper notes, "Lt. Watada opposes this war." That is true, but the paper doesn't address the central question of why he opposes the war: Lt. Watada says it's illegal. Well, Seattle Times, is this war legal or illegal? It's as if the Times finds it impossible to even consider that the U.S. started an illegal war.

Take the ill-informed position of Sen. Maria Cantwell. About 10 months ago, I joined a group of activists who met with her. We each got to ask one question. Mine was this: Since the U.S. was not under attack by Iraq and the UN had not authorized our war, isn't the

war you voted for illegal? (And aren't we at risk of doing the same with Iran?)

Sen. Cantwell surprised us. She said she believed UN authorization came

from Security Council Resolution 687, which formalized the Gulf War cease-fire back in 1991. Because Iraq had violated its commitments, she said, we had the right to go back to war in 2003. But Sen. Cantwell either hadn't read or understood the resolution: The last sentence is unequivocal that the UN Security Council holds sole authority to determine any future actions.

On a Jan. 25 broadcast of the NPR program "Fresh Air," Terry Gross interviewed a military law expert, attorney Eugene Fidell. She asked, "In what court would you decide whether a war was legal or not?" He answered, "In no court at all!"

Attorney Fidell goes on to say that only Congress can decide whether a war is illegal. But it is Congress that authorized the war. Would one sensibly ask Lt. William Calley to decide if he had committed a war crime at My Lai? How can one sensibly ask Congress to decide the legality of a war it itself authorized?

In 1945, Supreme Court Justice Robert Jackson, acting as U.S. chief prosecutor at the Nuremberg War Tribunal, warned, "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well."

We have largely forgotten Justice Jackson's warning about the rule of international law. And the poisoned chalice is passing to our lips, in Iraq and beyond.

Bert Sacks ( has a petition before the Supreme Court challenging the legality of 12 years of U.S. sanctions on Iraq, believing that because they led to the deaths of 500,000 Iraqi children. the sanctions became acts of terrorism.

[The War on Trial]

Bert Sacks was also involved in the Citizens' Hearing on the Legality of U.S. Actions in Iraq, a counterpoint to Lt. Watada's court martial. Hear testimony from the Hearing at