[casi] Legality of war

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Dear David,

I set out below a legal opinion on the legality of some of Bush's activities
from the leading US lawyer, Professor Boyle. I would like to know if the UK
government shares his opinion as to the illegality of Bush's actions, and, if
not, why not. Would you please raise this question with the Foreign Secretary
for me and advise me of his response.

Chris Leadbeater

"Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle@law.uiuc.edu <mailto:fboyle@law.uiuc.edu>


The Illegalities of the Bush, Jr. War Against Afghanistan*
by Professor Francis A. Boyle

USA Patriot Act Legal Briefing -- National Lawyers Guild  -- Chicago,
Illinois  ----  17 July 2002



[Verbatim Transcript Revised]

The "Blowhard Zone"

. . . On September 13, 2001 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 publically 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 AFGHANISTAN

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.

NAZI SELF-DEFENSE

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.

KANGAROO COURTS

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 CABAL

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 serious matter.

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 happened.

JEOPARDIZING U.S. ARMED FORCES

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 being denied.

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.

Thank you.
Francis Boyle


*(c)Copyright 2002 by Francis A. Boyle. All rights reserved.

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