The Illegalities of the Bush Jr. War Against Afghanistan
(The author served as Legal Advisor: to the Palestine Liberation Organization on Creation of the
State of Palestine (1987-1989), to the Palestinian Delegation to the Middle East Peace
Negotiations (1991-1993) and sometime to the Provisional Government of the State of
The viewpoints expressed here are his own.)
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
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.
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.
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
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
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
Jeopardizing U.S. Armed
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
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
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