{news} Fw: Prof. Francis Boyle: Legal Nonsense: The War on Terror and Its Grave implications for national and International Law

[Justine McCabe]

MessageLegal Nonsense: The War on Terror and its Grave
Implications for National and International Law

An Interview with Prof. Francis Boyle, J.D., Ph.D.

In yOUR RECEnt interview with Bill O'Reilly, he said that we had

the right to roll into Afghanistan essentially (and simply) because bin

Laden is a bad guy, and the Afghans were not cooperating. Do you see

our refusal to make a traditional declaration of war against Afghanistan as

a matter of convenience? Does it get us off the hook, morally and legally, from

having to obey the normal rules of how wars are conducted and declared

between one state and another?

FB: I think they had already planned to go to war against Afghanistan

beforehand, and it is abundantly clear from the so-called offer made by

President Bush to the Afghan government that it was not really made in

good faith. They were looking for a pretext, they got it, and they went to

war.

LID: Do you think they would have been caught off guard if Afghanistan

had given way on all their demands?

FB: It was reported on CounterPunch.org that they did, in fact, offer to

turn over bin Laden, but this offer was never followed up. It is clear that

bin Laden was a pretext, and 9/11 was a pretext. They needed a pretext to

go to war against Afghanistan and Iraq, and they created the conditions to

make it possible. It also seems to me that they knew the 9/11 attacks were

going to happen, but that's another story.

LID: Indeed. There's a lot about the mainstream story of 9/11 that doesn't

make sense, but that is, as you say, another story. What struck us, as all

this unfolded, was how non-traditional our approach to the whole thing

was. They could have made an argument to make a real declaration of war

25 thE EDitORs' glOss: Article I.8 of the Constitution gives Congress

the power to "constitute Tribunals inferior to the Supreme Court . . .

define and punish . . . Offenses against the Law of Nations . . . and make

Rules concerning Captures on Land and Water." But on November 13,

2001, President Bush issued a "Military Order" granting himself the power

to detain and try by "military commission" - for "violations of the laws

of war and other applicable laws" - anyone he determines is or was in al-

Qaeda, "engaged in, aided or abetted, or conspired to commit, [undefined]

acts of international terrorism," or "knowingly harbored one or more"

individuals in these categories. As the Order was developed, the usual

suspects (David Addington, vice president's counsel; John Yoo, Justice

Department lawyer; Timothy Flanigan, former deputy White House

counsel) overruled military, State, and Justice Department experts - who

wanted criminal or courts-martial proceedings for 9/11 and "war on terror"

(GWOT) suspects - because GWOT intelligence might be hard to

get if defense lawyers and due-process got in the way ("After Terror, a

Secret Rewriting of Military Law," New York Times, October 24, 2004).

The legality of so removing individuals from the criminal or military

justice system was challenged by attorneys on behalf of Salim Hamdan.

D. C. District Court Judge James Robertson stopped the commissions in

November 2004 (see pp. 480-2). The government appealed and pressed

ahead, an insider blaming Cheney for its intransigence (New York Times,

March 27, 2005: "Cheney is still driving a lot of this"). Meanwhile, some

of the commission's defense lawyers and even military prosecutors complained

of its "marginal" cases and "half-assed effort" (AFP, August 1, 2005).

But on July 15 - in spite of 17 "friend of the court" briefs on Hamdan's side

from retired JAGs, generals, and admirals; a Constitutional historian at

the Library of Congress; and numerous international-, national-security-,

and military-law academics and lawyers - the government won a reversal

from a D. C. Appeals Court three-judge panel; it argued that the "Geneva

Convention cannot be judicially enforced."

One of the three judges met the President for an interview the day before,

and on July 20 he was nominated to the Supreme Court. It might be

coincidental that John Roberts was tapped for the Court five days after

he joined the decision that the President's "construction and application

of treaty provisions is entitled to great weight." Alternatively, Bruce

Shapiro, writing in The Nation (July 20, 2005), suggests that Roberts's

interview with the President was his oral exam, and the Hamdan decision

was the "essay question." Evidently he passed.

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legal nonsense

against Afghanistan, but it seems to us that this approach was intentionally

avoided.

FB: I think Bush did seek a declaration along the lines of what Roosevelt

got from Congress on December 8, 1941. The reason he sought it was that

it would have made him a constitutional dictator. Fortunately, Congress

did not give Bush a formal declaration of war, but he did try. Had he gotten

one all the provisions of the U.S. Code would have applied, which give the

President sweeping powers during a state of declared war.

LID: So you say "fortunately" because of the powers of the U.S. Code that

would have been granted to the President?

FB: The book Presidential Power by Arthur Miller explains how, with a

formal declaration of war by Congress, as happened in December 1941 and

also in WWI, the President essentially becomes a constitutional dictator.

He can pretty much do what he wants.

LID: That's interesting. Although there are negative ramifications for

how the prisoners are treated in an undeclared war, it sounds like one of

the "benefits" has been that at least we avoided having a dictatorship on our

hands in America - or at least more of one than we currently suffer.

FB: It could have been a lot worse. Senator Byrd pointed out that the

authorization that the President did get was not a formal declaration of

war, but rather a limited authorization and subject to all the requirements

of the War Powers resolution. He was not given a blank check.

LID: Do you know how well he did in meeting any of those

requirements?

FB: Ha! That's a good one. The problem is that the President does not care.

He believes clearly that he is above the Constitution of the United States.

He has made it clear that he is not limited by anyone. But the fact remains

that it is up to Congress to enforce its own war powers. The Constitution,

Article I, Section 8, gives the power to Congress to go to war, not to the

President. It is up to Congress to enforce this in the first instance, and

ultimately for the American people to enforce this in default by Congress.

This is why I started my campaign for impeachment. I called Ramsey Clark

to discuss starting an impeachment campaign against the President over

the war in Afghanistan. He felt that the public support was not there at

that time, because the President had been very successful in brainwashing

the American people into supporting what he was doing. But, in August

2002 Cheney began making his speeches against Iraq and the situation

and atmosphere began to change. It appeared to be the same scenario they

had pursued in Gulf War I under Bush Senior.

LID: In following your impeachment efforts, we saw that you are waiting

on an equivalent to Congressman Henry B. Gonzalez (D-Tex.), who - I

think many Americans don't know this - worked with you to attempt an

impeachment of Bush 41 over the first Gulf War.

FB: We are pressuring Congress. We need one member of Congress to

propose a bill. Congressman Conyers did have a discussion on March 13,

2003, with 40 or 50 of his top advisors. He called Ramsey and me, inviting

us to state the case for putting in immediate bills of impeachment against

Bush, Cheney, Rumsfeld, and Ashcroft to try to head off the war. We did

the best we could. The merits were debated quite extensively. The people

there did not really disagree with us on the merits of impeachment

but rather on the political practicality. John Podesta was there on behalf

of the Democratic National Committee arguing that proposing a bill of

impeachment might hurt the Democratic candidate in 2004. That is where

we stand now. I think that advice was wrong. But I did not argue the point.

I just argued the constitutional merits of impeachment. No one really disagreed

with that. They were merely concerned with how it would play out

in the November 2004 elections. Of course the Democrats were clobbered,

but Ramsey and I agreed before the election to push forward, and that is

what we are doing.

LID: Do you have any hopefuls in terms of the Congressional sponsorship

that you need?

FB: Any one of them could do it. It's up to the people to pressure their representatives

to put one in. But with the offensive, the destruction, and the killing

in Fallujah - this is a crime against humanity. We have already lost some

1800 military people thanks to Bush, Cheney, Rumsfeld, and others. It seems

to me that we owe it to those fallen troops to file bills of impeachment, and to

make it clear that we are going to try to hold these war criminals to account

not only for the dead U.S. soldiers, but also for the more than 100,000 dead

Iraqis. If we do not act, this war is going to get well and truly out of control.

General Shinseki publicly testified that we need several hundred thousand

troops to occupy Iraq. He has been proven right. The troops there are sitting

ducks, and what we need to do is get our troops out of harms way.

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LID: On another subject - but speaking of resisting war criminals and

their crimes - we understand that you were able to act as counsel for 28-

year-old former Staff Sgt. Camilo Mejia, who was sentenced on May 21,

2004, to one year in prison for refusing to return to fight in Iraq.

FB: That's right. He was the first resister. He saw everything, and was

even asked to participate in the torture being conducted. He came back

home on leave and after much soul-searching realized he could not continue

in good conscience to participate in an illegal war. He filed for conscientious

objector status as a result. He was court marshaled for desertion!

Though he was the first to do so, he is unlikely to be the last. The

Pentagon decided to make an example of him, to make a point to the rest

of the troops who are beginning to get very restless. He is, of course, a

hero, the first Amnesty-International-declared prisoner of conscience in

America linked to this war.

LID: A couple of thoughts on the legal background. We came across a

comment made by Dr. Elizabeth Wilmshurst in England, who as you know

resigned her post as deputy legal adviser to the Foreign & Commonwealth

Office in the U.K. over the illegality of the Iraq war. She said, "lawyers hate

the phrase 'war on terror.'" Do you share that sentiment?

FB: If you see my book, Destroying World Order, there is a whole chapter

entitled "Preserving the Rule of Law in the War on International Terrorism."

It is mere propaganda, a slogan that the Bush people have come up with to

justify aggression, their own terrorism, war crimes, and torture elsewhere

round the world. There is no generally accepted definition of terrorism. In

practical terms, anyone who opposes what the U.S. does becomes "a terrorist."

The USSR did much the same thing after they invaded Afghanistan.

Powerful governments as a rule call their opponents "terrorist," thereby

seeking some kind of "moral high ground."

LID: For the Soviets, Osama bin Laden would have been a "terrorist

extraordinaire" when he was involved in resisting their efforts to take over

Afghanistan. But now the shoe is on the other foot.

FB: Let's be clear about all this. Bin Laden is our guy. The Carter administration,

as well as the Reagan people, worked hand-in-glove with bin

Laden and the CIA. That's where he and al-Qaeda came from! As long as

he was fighting the Soviet Union, he was "a freedom fighter," part of the

Mujahideen. But once these Islamic warriors turned against the U.S. and

its view of the world - assuming that they ever believed it - they became

"terrorists" overnight. These terms are devoid of any substance. They are

designed, quite simply, to squash dissent. We used to throw around the

term "Communist" a lot in the old days, even when the accused were very

far from being such. It was a convenient way of ridding oneself of problems

through the use of the smear technique.

LID: You mentioned that one of the real problems making this war on

terror so vague, so sweeping and so meaningless - to the point of allowing

it to encompass just about anything the Bushites want it to - is that all

the normal protections afforded to people on the opposite side of an armed

force can be twisted, manipulated, or just dispensed with.

FB: It's dehumanizing to Arabs, Blacks, Muslims, Asians, Coloreds. We

cannot forget the racist element of the war here, very much like Vietnam.

In Vietnam, we had to dehumanize them in order to kill them - so we

called them "gooks." Now instead of looking at these people as human

beings, with grievances and a cause that they have not made known to our

people but might like to, we call them "terrorists." We dehumanize them

in order to make it easier for the American people to do terrible things to

them that we otherwise would not be doing in all likelihood. I doubt seriously

that we would be treating white Christians or white Jews this way.

These terrorists, as we call them, are throwaway people.

LID: Of course in Serbia and Kosovo, it was the other way around. It was

white Christians who were being attacked in another illegal and unjust war

for their alleged crimes against Muslims, never mind that the faction that

we supported were real terrorists, i.e., the KLA. In that light it simply seems

like the terrorists are always whomever we've chosen to oppose in whatever

the conflict de jour is. Now speaking of Kosovo - just to digress for a second

- our sense is that the legal background for the assault on Serbia was just as

specious as that used in the war against Iraq.

FB: I agree with you. In fact, in that same book mentioned above there

is a chapter on humanitarian intervention in which I also condemn the

arguments used to justify the Serbia intervention.

LID: Now there may have been some argument that the Serbia bombing

was a "humanitarian effort" to protect Muslims and Kosovars, though we

would agree with you that it was an entirely bogus pretext. But that shows,

doesn't it, that we will pick up whatever flag is useful - "humanitarian aid,"

"WMDs," "terrorism" - to accomplish our other aims?

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FB: All of these wars, Afghanistan and Iraq - and our less well-known

military interventions elsewhere of late - have one thing in common: oil

and natural gas. That is what all this "imperial hubris" is about. We are

running out of these things, things so vital to our economy. The Pentagon

knows it, and so they are scrambling to get whatever oil and natural gas

they can find - whether it's in Central Asia, Afghanistan, Iraq, Columbia,

Jibouti, or the Suez Canal. They are now planning military intervention

on the west coast of Africa because oil and gas have been found there. If

you look at all they are doing - not what they are saying, but what they are

doing - they are deploying forces all over the world where there is oil and

gas to be had. There is no deployment, however urgent the situation, where

there is no oil and gas.

LID: Let's give some thought, if we may, to the Guantánamo detainees.

One thing that has struck us as problematic - and it goes all the way back

to 9/11 - is that, in the context of the "war on terror," Uncle Sam is making

an informal declaration of war against irregular forces all over the globe.

Anyone with a gun who does not sympathize with the American way of

life, or the politics of the government, is automatically deemed "an enemy."

Correct us if we are wrong, but under the normal process of declaring war,

the opposing sides' troops are recognized as lawful combatants who are

guaranteed certain rights. Here, where we are picking a fight with all the

irregular forces of the world, they are immediately deprived of their rights

- or so it seems to us. It appears that much of the Geneva Conventions have

been set aside and that POW rights have effectively been ignored and nulli-

fied. If this is so, it seems to be the height of hypocrisy.

FB: It is most definitely the case. What that is going to do is react to the

disadvantage of our own men and women in the armed forces, because

what we have done is to send a message that we don't care about the Geneva

Convention - and that can only expose our armed forces to grave harm

and danger. Battle is bad enough, but if they get wounded or captured the

only protection our people have is the Geneva Convention. If we are now

saying we just don't care about any of this in Afghanistan, Iraq, Gitmo,

then there is no kind of protection for our armed forces. Even Secretary

of State Powell pointed this out in a memo to Bush. I regret to say you

will likely see outright savagery being inflicted on our armed forces - and

certainly to the extent that we are inflicting it on our opponents. The U.S.

Marine filmed shooting dead a wounded resistance fighter in a mosque

in Fallujah has set a dangerous precedent. It says, in effect, that if you are

an Iraqi fighting the occupation and you are caught, you are likely to get

your head blown off. What hope, then, is there for wounded or captured

American troops in Iraqi hands?

LID: A lot of media coverage has been given to the tribunals in Gitmo, variously

termed "Combatant Status Review Tribunals" and "Administrative

Review Boards" - not to mention the infamous military commissions established

under the President's Military Order of November 13, 2001. The

heated discussion is all about whether or not these tribunals are sufficient

to provide for the rights of the detainees. Our sense is that they don't come

close, because of clear obligations on the part of those doing the detaining

(i.e., us) to provide for a Geneva Article 5 tribunal, which passes a judgment

on whether people should be held as POWs or not - and until those

tribunals are conducted, the detainees are supposed to be presumed to be

POWs and afforded POW rights. Something our government has conspicuously

not done.

FB: These kangaroo courts - I'm talking "military commissions" now

- were opposed by the professional military lawyers in the Judge Advocate

General's (JAG) office at the Pentagon. They were opposed by the professional

international lawyers in the State Department. The only lawyers who

supported these kangaroo courts were right wing, war-mongering lawyers

that inhabited the office of White House counsel Alberto Gonzales - now

attorney general - and John Ashcroft at the Department of "Injustice." That

is to say, none of the professionals who know anything at all about human

rights or the laws of war. As I said, even the professional military lawyers

were against these courts. As you know, in late November 2004 the federal

district judge in Washington, D.C., struck the whole thing down, though

in July 2005 it was rehabilitated by an appeals court for the D.C. circuit

in a frankly ridiculous decision. Though in the district case - Hamdan v.

Rumsfeld - the judge applies the law as it should have been applied in the

first place.1

LID: What are the details of these recent decisions?

FB: The first decision simply struck down the kangaroo court procedure

down at Gitmo. That decision was then overturned on the basis that the

Geneva Conventions are not "self-executing," though honestly, what good

1. See the discussion of military commissions and related tribunals in chapter 29 and its

postscripts, on pp. 443-489 of the present volume.-Ed.

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is a right if it cannot be protected in the courts? When the Department of

Justice first made the appeal, they were probably hopeful that they'd get it

to the Supreme Court, which the Bushites control; now it looks like that

might happen, as the attorneys for Hamdan have themselves appealed. Do

remember, by the way, that it was the five Republican justices that gave the

presidency to Bush Jr. in 2000 to begin with, and started this whole problem.

After that happened the Democrats were derelict in their duty by not

putting in Bills of Impeachment against those five Supreme Court Justices.

They rolled over and played dead, just as Gore and Kerry have done. What

good are they?

LID: On a side (but related) note, one of the pretexts we have heard that

was supposed to have justified our aggression in Afghanistan is the phrase,

"Afghanistan is a failed state." It appears everywhere in the political literature

on the subject and it seems to say that, as a consequence, the norms

of international law between one sovereign State and another simply don't

apply. Would you say that is gibberish?

FB: Yes, it means nothing. It's just a category, a description, pulled out

of thin air and developed.

LID: The Afghans don't see things the way we do, so they can be dismissed

as a nonentity, right?

FB: Yes. In fact we were actually negotiating with the Taliban government

in Afghanistan during the Clinton administration about the construction

of a huge oil pipeline through their territory, and it appears that

Clinton was about to establish diplomatic relations with them.

LID: So, Afghanistan being a "failed state" did not impede that process!

FB: Not at all. All we cared about was getting into that Central Asian oil

field and raking in big money.

LID: On the legal question of one sovereign state versus another, many

commentators and public figures - Robin Cook, Kofi Annan, Elizabeth

Wilmshurst, and yourself to name but a few - have come out in black and

white saying the aggression against Iraq was illegal. This is also the opinion

of some hundreds of international lawyers around the globe that have made

statements on various occasions.1 Even Richard Perle conceded that international

law would have "gotten in the way" of the Iraq invasion, had it been

1. Vide supra, p. 368, note 2.-Ed.

obeyed. What this means, at least from our point of view, is that we deposed

by force of arms a legitimate government, recognized as such throughout the

world, and that consequently the government that was in place is still the

legitimate government at least de jure if not de facto. Do you agree?

FB: Yes. Under the laws of war as codified in U.S. Army Field Manual

2710, we did indeed depose the legitimate government of Iraq. The U.S.

and Britain are - still - what is known as the "belligerent occupants" of

Iraq. The so-called Allawi government was nothing more than a puppet

government. But the laws of war do not prohibit us from establishing a

puppet government if that is what we want as occupiers. Again, under the

above law, we are responsible for the behavior of that puppet government.

We have displaced the legitimate government of Iraq and have imposed a

puppet government - twice. What happens now depends on if and when

the belligerent occupation by the U.S. and U.K. ends, and if the Iraqi people

themselves have an opportunity to reestablish their own government.

It's important to keep this in mind, despite all the talk about the transfer

of sovereignty, democracy, and elections. That's all nonsense. The sovereignty

resides in the hands of the Iraqi people. They never lost it in the first

place. It was never ours to transfer. A belligerent occupant does not obtain

sovereignty. Sovereignty remains with people and with the state that is

occupied. We never had anything to transfer to Allawi. He remained at all

times the puppet head of a puppet government. The January 2005 elections

did nothing but establish another puppet government, no matter who did

or did not participate, and in what numbers.

LID: And any so-called trial of former members of the legitimate government

conducted under the auspices of this puppet government - particularly

if the occupying forces are still there - is very problematic as well.

FB: They are simply more kangaroo court proceedings. Clearly there

are procedures. Saddam is a prisoner of war. Prisoners of war under the

Third Geneva Convention can be tried for the commission of war crimes,

but they are subject to all the protections of the third Geneva Convention.

In this situation Saddam would be entitled to a trial in the form of a courtmartial

under the Uniform Code of Military Justice. Clearly he will not get

that. He will get a kangaroo summary procedure and then they will take

him out and kill him. Several of the so-called Iraqi human rights people

involved in setting up these kangaroo courts have already said as much.

Saddam will not get a fair trial. Of that there can be very little doubt.

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LID: Are there any other important points of which we should be

aware?

FB: Before the start of the war against Iraq, President Putin of Russia

and Walter Cronkite both publicly stated that if Bush went to war against

Iraq, he could set off a third world war - and that is the situation we find

ourselves in now. This is an extremely volatile area of the world. Two-thirds

of the world's energy resources are there - the very thing that we are going

after. That that is what we are doing is very clear to Russia, Europe, China,

India, Pakistan. It's very clear we are going all out for the oil and the gas

in order to control the future of the world's economy. The longer we, the

American people, let this go on, the more we risk a wider regional war that

could easily degenerate into a world war.

LID: Rumsfeld's favorite words for the Iraqi resistance is "extremist," "terrorist,"

etc. We assume there is no question that the Iraqis who are defending

themselves from occupation have every legitimate right to do so, regardless

of what outside influence there may or may not be in Iraq?

FB: This is clearly an illegal and criminal war being waged by Bush Jr.

and Tony Blair. So, of course, the Iraqi people have a right to resist an illegal,

criminal war under international law. That's the danger in all of this.

Hitler got away with marching into Austria and Czechoslovakia, but then

he went into Poland and that led to the start of WWII. Here we have Bush

who has waged two wars now, in Afghanistan and Iraq. He is now threatening

Syria, Iran, and North Korea. We have a very similar situation here.

Either the current situation is brought under control, or they launch one

more aggressive war. That could start a chain reaction leading to a regional

war - and perhaps to another world war.

LID: Let's hope we can reverse the tide before that happens.

FB: I think we have to, and that is why Ramsey and I are pressing ahead

with impeachment. Remember, and this is very important, Nixon won a

landslide victory against McGovern in 1972. Massachusetts was against

him, but the rest of the country supported him. Yet he and Agnew were

out of office less than two years later. So, that is the scenario that I think

we must pursue with respect to Messrs. Bush and Cheney.

www.informationclearinghouse.info

www.einswine.com

5 6


Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (voice)
217-244-1478 (fax)
fboyle at law.uiuc.edu
(personal comments only)




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