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How to Criticize the Israeli Government

10:40 pm in Uncategorized by David Swanson

The other day I tweeted an article that reported on a rather horrible story.  It seems that the Israeli government gives African women drugs that keep them from reproducing.

Cover of Our Hash Logic

Our Harsh Logic: Israeli Soldiers' Testimonies from the Occupied Territories 2000-2010

I think if this story had been about Canada, Korea, France, or Brazil people would have read it.  The conversation would not have immediately shifted to my alleged hatred of all Canadians.

Since it was about Israel, some people chose to announce that I hated Jews.  Such a response is not only baseless and nonsensical, but it shifts attention to me and away from the story, which in the end isn’t seen.

Now, I don’t know any more about that story than what I’ve read at that website (the website of a Jewish organization, as it happens).  The report may be accurate or not.  Israeli newspapers seem to report it as fully established, neither doubted nor challenged.  The story at least seems to merit investigation.  The point is that nobody told me it was inaccurate (news that would have delighted me).  Instead, they told me that I was anti-Semitic.

This happens with the United States too, of course.  If I criticize the U.S. government a few thousand times, and if the president is a Republican, I’ll hear from some disturbed individual who wants to recommend that I leave the country since I hate it so much.  Why one would try so hard to reform the government of a country he hated is never really explained.

With Israel, such nonsense is triggered much more swiftly.  I haven’t made a career of trying to reform Israel’s government.  All I had to do was tweet a link to an article.  Those who have gone to greater lengths to criticize the crimes of the government of Israel have, in some cases, seen themselves censored, vilified, and their careers derailed.  Many persevere despite this climate.

There is, however, a way to speak openly and honestly about Israel.  Not everyone can do it.  The trick is to be a veteran of the Israeli military.  This approach helps people whose “service” was years ago.  And it helps those whose memories of what they did “for their country” are very fresh.  Not only does such status shield one from a great deal of criticism, but it provides a substantive advantage in being able to report first-hand on what the Israeli military has been doing.  Just as Veterans For Peace are able to speak with some legitimate authority in the United States against the use of war (see Winter Soldier now if you haven’t), members of the Israeli military, and those who recently were Israeli soldiers, command attention.

A new book called Our Harsh Logic: Israeli Soldiers’ Testimonies from the Occupied Territories 2000-2010, collects the accounts of numerous Israeli soldiers, although withholding their names.  Videos of some of the soldiers telling their stories can be seen online.  The online database sorts the stories into categories: › AbuseAssassinationsBriberyCheckpointsConfirmation of killingCurfews/closuresDeathsDestruction of propertyHuman shieldsHumiliationLootingLoss of livelihoodRoutineRules of engagementSettlementsSettler violence.

“Supporting the troops” is usually understood to exclude listening to the troops.  But these troops should be listened to.  Their experiences are very similar to those of the U.S. and coalition troops in Iraq.  But their war has lasted much, much longer, and with no end in sight.  Their testimonies make clear that their tactics do not serve the supposed purpose of reducing violence, and are in fact not intended to do any such thing.  The bizarre ordeals imposed on the soldiers outdo Kafka and pale in comparison to the nightmares imposed on Palestinians.  The driving forces are quite clearly racism, sadism, imperialism, and excessive obedience.

A very few of the many samples I was tempted to provide:

Read the rest of this entry →

Afghan Judges Accuse U.S. of War Crimes

8:53 am in Uncategorized by David Swanson


"AFGHANISTAN-US-UNREST-MARINES-ANNIVERSARY" by WBUR on flickr| A US Marine from Fox Company 2nd Battalion 3rd Marines wears a mask that reads kill as he sets out from his base in Farah Province

I recently sat down for 90 minutes to speak with six Afghan judges, all of them women, and an English-Dari interpreter, a man.  They spoke to me as individuals.  They aren’t preparing any investigations or indictments.  The relevance of their being judges is that they know the law.  They’ve studied international law, and they were visiting the United States to learn about our legal and political systems.  They believe the United States is guilty of war crimes.

I was the one who raised the subject.  I pointed to Italian convictions of CIA agents for kidnapping, Spanish investigations of U.S. officials for torture, etc., and asked what these judges’ views were on international law violations, universal jurisdiction, and what appear to be clear crimes committed by the United States in Afghanistan. Read the rest of this entry →

UVA/Reagan War Hawk Defends Obama’s War

10:39 am in Uncategorized by David Swanson

When a national television program this week needed to find a spokesperson for the right of presidents to launch wars without congressional authorization, it turned — to the great shame of us University of Virginia alumni — to Robert Turner. He is the co-founder of the University of Virginia’s Center for National Security Law.

Turner worked as an attorney in the Reagan White House and behaves accordingly. His center is directed by John Norton Moore who unsuccessfully defended the United States before the International Court of Justice in 1984, the court ruling that the United States had violated international law by supporting Contra guerrillas in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors. Then in 1991, Moore was legal advisor to the Kuwaiti ambassador to the United States, whose daughter was trained by a D.C. public relations firm to lie to Congress about babies being taken out of incubators. Moore supported the later Iraq War as well. The rest of the Center’s personnel is a who’s who list of war facilitators with blood up to their elbows.

Turner spoke from the satellite TV hookup at UVA on the “Democracy Now!” program on Thursday, in a debate with Congressman Dennis Kucinich moderated by the show’s host, Amy Goodman. Kucinich and nine other congress members sued President Obama over the Libya War on Wednesday. The President sent Congress a report claiming the war was legal on Wednesday. The evidence suggests otherwise.

Charlottesville, Va., is a hotbed of war spending, but citizens have planned a conference aimed at resisting it in September.

Turner’s first utterance on Thursday’s program was that the Libya War is not a war. He claimed to be backing President Obama’s position. If the War Powers Resolution were constitutional, Turner argued, it would not apply, because this war is not actually a war. Turner then focused on citing individuals who believe the War Powers Resolution is unconstitutional. But that is for a court to decide. And that is not Obama’s position. Obama’s report specifically denies claiming that the War Power’s Resolution is unconstitutional. Instead, Obama claims it does not apply. But he can’t claim, as Turner does, that it doesn’t apply because the Libya War is not a war.

The War Powers Resolution, in actual fact, forbids unconstitutional (presidential) wars unless the United States is attacked. But even ignoring that fact, as is the custom, the Resolution says right at the top:

“It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”

Anything from imminent involvement in hostilities to hostilities is covered. The War Powers Resolution is very clearly not about wars, as some category of action larger than mere hostilities. Obama, however, goes beyond Turner and claims that the Libya War doesn’t even amount to hostilities. But that, too, is an impossible claim. The passage above does not leave a gap with which to exclude bombing people’s homes in a non-hostile manner with non-combat troops as part of an overseas contingency operation. Any warlike action counts as hostilities.

Congresswoman Lynn Woolsey remarked on Wednesday: “To say that our aggressive bombing of Libya does not rise to the level of ‘hostilities’ flies in the face of common sense and is an insult to the intelligence of the American people.”

Congressman Kucinich asked Turner, if 2,000 missions were flown over the United States and many of those missions dropped bombs, would that be an act of war?

Turner did not answer.

Goodman later repeated the question to him.

Again, he did not answer.

Turner claimed that the UN Charter obliges the United States to fight this war. However, Kucinich pointed out that a treaty cannot trump Article I of the Constitution, and Turner agreed. He merely disagreed as to what Article I said, and refused to concede that it has been clarified by the War Powers Resolution.

In addition, it is far from clear that the UN Charter actually permits, much less requires, this war. As Marjorie Cohn has argued, the UN Charter does not allow the use of force for humanitarian interventions. The Responsibility to Protect doctrine found in the General Assembly’s Outcome Document of the 2005 World Summit is the source of this doctrine, but not law or treaty, and even that doctrine defers to Chapters VI and VIII of the Charter, wherein states are required to use “every effort to achieve pacific settlement.” This was not done and is not being done in Libya. Overtures of peace are being rejected out of hand. And UNSC Resolution 1973, which is being used to excuse the war, does not authorize warfare, but rather a cease-fire.

As Turner was losing Thursday’s televised debate, he began to argue that holding such debates on ending wars — and not the wars themselves — endangers U.S. troops.

Kucinich’s only response was to suggest that historians should be careful about putting blood on people’s hands.

Turner had no opportunity to make a further reply, but I can only imagine him thinking to himself: “What, I’ve had blood on my hands for decades! What’s the big deal?”

Is That Even Legal?

4:36 am in Uncategorized by David Swanson

If the U.S. Constitution says one thing, a treaty ratified by the United States says another, a law passed by Congress yet another, and another law passed by Congress another thing still, while a signing statement radically changes that last law but itself differs with an executive order, all of which statements of law conflict with a number of memos drafted by the Office of Legal Council (some secret and some leaked), but a President has announced that the law is something completely different from all of this, and in practice the government defies all of the above including the presidential announcement . . . in such a case, the obvious but possibly pointless question arises: what’s legal?

The above theoretical example of legal confusion sounds extreme, but it is not far off the actual situation with regard to some of our most important public policies. Take the example of U.S. warmaking in Libya. Is that legal?

The U.S. Constitution says Congress must decide where and when to make war. Congress has not declared a war since 1941. Since that date Congress has put up a gradually diminishing pretense of involvement. In the case of Libya, Congress played no role whatsoever in launching the war. Is the law what the Constitution says, how the Constitution was interpreted for the first two-thirds of our national history, what presidents have gotten away with in recent decades, or what a president can get away with today? Wait, don’t answer that!

The Constitution also says that ratified treaties are the supreme law of the land. Does that include treaties passed almost a century ago, largely forgotten, and almost never discussed on television? Does it include only treaties that have been duplicated in U.S. statutes? Does it include only treaties the government is inclined to comply with? In this regard, we might wish to recall that theoretically the Kellogg Briand Pact is still one of our many supreme laws of the land. In 1928, the U.S. Senate ratified this treaty, which states:

“The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.”

The Senate tacked on a couple of modifications to the treaty, a practice of debatable legality itself. One reservation the Senate added was for cases of defense. The other was to clarify that the United States was not obliged to enforce the treaty by going to war against its violators. Since nobody has even claimed that Libya attacked the United States, and since the United States voluntarily went to war, the exceptions do not seem relevant. War is illegal. Period. At least if we go by Kellogg Briand. And why not? Aren’t ancient laws recalled and put to use when we need to expand corporate power or discriminate against gays or advance any other political agenda? So, why not Kellogg Briand? Because it’s been violated? What kind of reason is that?

The United Nations Charter, too, makes war illegal, with very limited exceptions that do not seem to apply. But the United Nations passed a resolution that the U.S. Justice Department, in a leaked/published memo, relies on heavily to justify the war. Does that resolution make the war in some way legal, even if the memo isn’t and the Constitution is still violated? And what if the war, in various ways, violates the resolution? The resolution was for a humanitarian intervention, a no fly zone, a cease fire, an arms embargo, and a ban on foreign ground troops. It was immediately used to bomb civilians, introduce arms, and employ foreign ground troops, not to mention drone bombings and an apparent assassination attempt — both practices of highly dubious legality. Is a war legalized by a resolution even if it violates the resolution, and even if it violates numerous other laws in doing so? Or is it internationally legalized while remaining domestically unconstitutional?

A U.S. law passed in 1973, the War Powers Act, if you read what it actually says, would have applied only if Libya had attacked the United States, which no one has ever claimed. But everyone pretended this law applied anyway. The War Powers Resolution requires that the President report information to Congress within 48 hours of launching a war, which Obama did — except that he didn’t include most of the information he was required to report. The War Powers Resolution also puts a 60-day limit on unconstitutional war, and that clock has expired. So is the war illegal because it violates both the Constitution and this weaker law? Or is it legal because there’s been such a pretense of complying with the law, to the extent of sending Congress a polite note when the 60-day clock ran out? And is this law somewhat less legal than other laws because it was passed over a veto and because some, but not all, presidents since its passage have declared that they object to it and hold it to be unconstitutionally strong — as opposed to being unconstitutionally weak, as the law appears to be?

Last week, the House of Misrepresentatives passed numerous amendments to the “Defense Authorization Act of 2012.” One amendment made clear that passage of the bill did not authorize war in Libya. (Arguably, the failure of Congress to fund any war in Libya also makes the war — you guessed it — illegal.) Another amendment prohibited the use of U.S. ground troops in Libya (unless employed through a department other than “Defense”). But another amendment required that, upon completion of the war, the U.S. military dig up and bring home the bones of U.S. sailors buried in Tripoli during an earlier war in 1804 (which Congress did not declare but authorized). How exactly is that going to happen unless the U.S. military gains control of Tripoli? And what is accomplished by refusing to authorize a war that is already underway, with another 90 days just announced by NATO, and with not a glimmer of a threat of holding anyone accountable for it? Is the idea to make a war “illegal” but watch it roll along?

Another section of the same bill (an amendment to strip it failed to pass) effectively gives presidents the power to make wars. This section (#1034) conflicts with the War Powers Act and the Constitution. It might also conflict with a congressional resolution ending or prohibiting a specific war. The President claims not to want this power, and a generous interpretation of a statement from his administration holds that he has threatened to veto the bill over it. While a veto strikes me as extremely unlikely, a signing statement seems somewhat more likely, if this amendment gets through the Senate. Here’s a situation in which the fundamental question of who has the power of war could have several answers. The Constitution will continue to say Congress, while the War Powers Act says mostly Congress, but this new legislation says presidents, and a signing statement says something different.

Why would President Obama signing-statement away more presidential power? Well, he probably won’t. But think about why he avoided asking Congress to declare or authorize war in the first place, when it probably would have. And why did he avoid asking Congress to declare or authorize war within 60 days? Why does he insist that the war is fought by NATO, rather than the United States, even though NATO and its role in the war would not exist without the United States? The goal seems to be expanding presidential power. NATO answers to the president but its abuses, as in Afghanistan, cannot be investigated by Congress. Asking Congress to play a role, even if it plays the desired one, means having to ask Congress again the next time. And allowing Congress to legislate that Congress has no role would mean that theoretically Congress could unlegislate that again. So, Obama could object to Congress having the gall to believe itself empowered to crown him king.

We could end up with a war illegal under the Constitution, legal and illegal under laws and treaties depending which we choose to consult, and illegal or legal under a signing statement depending how we try to make sense of it, but legal under the Justice Department’s memos. What’s legal?

A resolution to end the U.S. Libya war, HCR 51, will have to be voted on in the House by the week after next at the latest. If the vote is not held, in violation of the law, or if it is held and passes (and then passes the Senate too), will the war be thereby made even more illegal than it was, or illegal for the first time? What if the “Defense Authorization Act” passes the Senate and is signed into law with Section 1034 intact before the House holds its vote on ending the Libya war, or after? Can the crime of having violated the War Powers Act be retroactively treated to immunity? Can the same Congress legislatively and unwittingly deprive itself of the power to end a war it tries to end? What if Congress, frustrated in its effort to vote the war over, votes to ban the use of any dollars to fund the war? Then (and only then?) would continuation of the war be truly illegal? And what if a new memo or presidential decree in the meantime claimed the right to fund the war by other means, Iran-Contra-style or otherwise?

Or what if all measures went against the war’s legality? What if Section 1034 is rejected by the Senate, both houses vote to end the war, both houses vote to defund the war, the United Nations declares the war illegal, and so forth, but the war continues? Can a war be illegal and roll right along, like warrentless spying, procedure-free imprisonment, or assassination squads?

The White House/Pentagon is planning a secret briefing for Congress on the Libya War. Those who attend should be aware that the war in Libya appears to be a crime and that failure to report crimes that one witnesses is a felony. In this situation, can a Congress member be prosecuted both for revealing the contents of the meeting and for not doing so?

The only thing that seems clear here is that Thomas Paine’s notion of the law as king in this country isn’t holding up very well. Obviously the law is only king if we’re clear on what a law is and our government obeys it. If a law is any bill freely passed by Congress and signed or passed over a veto, provided the courts do not reject it as unconstitutional, and if the highest law is the Constitution and our treaties, then clarity might be possible. But then executive decrees and orders and lawless claims of secrecy and immunity would not be laws, signing statements would not be laws, and blatantly unconstitutional laws would not be laws. Persuasive arguments in secret meetings, and the whole regime of threats and bribes that the White House uses to manipulate the Congress would not be part of lawmaking.

Getting from where we are to there could be tricky. The Constitution itself proposes a way to do it that does not seem applicable. The tool that the Constitution provides the Congress is called impeachment, but obviously that cannot be discussed in this situation, since President Obama is not known to have been having sex with anyone.

60 More Days in Libya: Obama Does Bush Lawyers Proud

5:30 am in Uncategorized by David Swanson

Now we know why Obama has gone to such outrageous lengths to keep Bush’s lawyers out of prison, claiming powers of secrecy and immunity beyond Cheney’s wildest dreams and pressuring foreign nations to clamp down on any outbreaks of law enforcement.

If the Bush lawyers who “legalized” aggressive war, lawless imprisonment, and torture were not consulted on how to keep the war in Libya going in perpetuity, they were certainly the inspiration for the latest White House brainstorming session.

Remember when Alberto Gonzales claimed that the U.S. Constitution gives no one the right to habeas corpus by merely asserting that if you had that right it could not be taken away? Amateur work.

Remember when John Yoo and Jay Bybee explained that a man tortured but never tried had no rights due to his guilt? Child’s play.

Remember when Bush suggested he might get a war with Iraq started by painting airplanes with UN colors, flying them low, and trying to get them shot at? He was the warm-up act.

Obama’s relationship with the U.S. Constitution, U.S. treaty obligations, and the War Powers Act is a mature performance, a masterpiece for the ages.

The U.S. Constitution allows no president to launch a war. The War Powers Act makes an exception for cases in which the United States has been attacked by another nation. Libya did not attack the United States. So, the War Powers Act does not apply.

But Obama’s great legal minds decided to pretend it applied by submitting a report to Congress that pretended to comply with the reporting requirements of the War Powers Act. The pretense was pretty thin, as that law requires that certain items be reported, including “the estimated scope and duration of the hostilities or involvement,” that were not included in the President’s pretend report to Congress.

Obama’s “Justice Department” then leaked a memo that Bush’s gang would have been proud of but would have kept secret, a memo announcing more than arguing that Obama could make war in Libya if he damn well felt like it. We needed to defend regional stability, the DOJ argued, apparently forgetting what region we’re in. And we needed to defend the United Nations, they claimed, even while rejecting UN demands to visit Bradley Manning or to cease murdering Pakistanis with drones.

And now we come to the end of the first 60 days of bombing Libya. If you’re pretending to partially comply with the War Powers Act, then you’re pretending that you have 60 days in which to wage unconstitutional war. After that, you have to put your guns and other toys away or ask the first branch of our government to authorize what you are doing. Here are two of Obama’s schemes for getting around this law:


“[An] idea is for the United States to order a complete — but temporary — halt to all of its efforts in the Libya mission. Some lawyers make the case that, after a complete pause, the United States could rejoin the mission with a new 60-day clock.”

This is the one that has John Yoo kicking himself with jealousy, assuming he didn’t provide it. You stop a war for a moment, and then restart it with another 60 days on the clock. If they could do this repeatedly, they could have permanent war while “complying” with the War Powers Act. Or perhaps they could just do it once, and in the interim Congress would pass its “Defense Authorization” including Congressman McKeon and Senator McCain’s amendment to give Obama and all future presidents blanket authorization to launch wars. That might work.


“One concept being discussed is for the United States to halt the use of its Predator drones in attacking targets in Libya, and restrict them solely to a role gathering surveillance over targets. Over recent weeks, the Predators have been the only American weapon actually firing on ground targets, although many aircraft are assisting in refueling, intelligence gathering and electronic jamming. By ending all strike missions for American forces, the argument then could be made that the United States was no longer directly engaged in hostilities in Libya, but only providing support to NATO allies.”

This is a curious idea. The United Nations investigator on extrajudicial killings has already declared U.S. drone use elsewhere illegal. The U.N. resolution that the U.S. Justice Department argues justifies the war forbids foreign ground troops and imposes an arms embargo. So, by halting one illegal action, the United States would “legalize” continuing others.

Except that NATO is not separate from the United States, but dominated by the United States, its largest member. Attributing atrocities to NATO puts them outside Congress’ purview. Assigning whole wars to NATO, as was done by former president Clinton in Yugoslavia, should not provide the same cover.

There’s nothing legal about this, and there wouldn’t be even if NATO were a non-U.S. entity, or even if Congress had declared war on Libya. As Marjorie Cohn points out:

“The UN Charter does not permit the use of military force for humanitarian interventions . . . . It is only when peaceful means have been tried and proved inadequate that the Security Council can authorize action under Chapter VII of the Charter.

Cohn also looks at what the Libya resolution says:

“Security Council Resolution 1973 begins with the call for ‘the immediate establishment of a ceasefire.’ . . . The resolution authorizes UN Member States ‘to take all necessary measures . . . to protect civilians and civilian populated areas’ of Libya. But instead of pursuing an immediate ceasefire, immediate military action was taken . . . . The military force exceeds the bounds of the ‘all necessary measures’ authorization. ‘All necessary measures’ should first have been peaceful measures to settle the conflict. Yet peaceful means were not exhausted before the military invasion began. A high level international team — consisting of representatives from the Arab League, the African Union, and the UN Secretary General — should have been dispatched to Tripoli to attempt to negotiate a real cease-fire, and set up a mechanism for elections and for protecting civilians. Moreover, after the passage of the resolution, Libya immediately offered to accept international monitors and Qadaffi offered to step down and leave Libya. These offers were immediately rejected by the opposition. . . . Obama, France’s President Nicolas Sarkozy and Britain’s David Cameron penned an op-ed in the International Herald Tribune that said the NATO force will fight in Libya until President Muammar Qaddafi is gone, even though the Resolution does not sanction forcible regime change.”

Even if you supported the initial “humanitarian” imposition of the “no fly zone” in Libya — and the laws be damned — you need a new reason to support the ongoing bombing of Tripoli and the West’s efforts to impose a puppet government on Libya by force. The International Criminal Court’s willingness to charge Gadaffi, but not Obama, with crimes is not a reason. Wars are not legally justified by a national leader’s criminality. You need a new excuse. And I’m ashamed of the ones the White House is coming up with.

If we are going to properly educate our children to evade substantive compliance with laws and moral standards, we need to show them how to do it right. The Yoo-Bybee model, now perfected by Obama and Hillary Clinton’s gang, still does not seem quite worthy of our position as world leader. I think we can do better, and I trust that our greatest legal minds are hard at work on the matter.

If something even more brilliant than “reset the clock” isn’t thought of soon, I wouldn’t be entirely shocked if a newspaper somewhere in the country thought to ask why Obama doesn’t just ask Congress to authorize his war. And I would consider it a real, if remote, possibility that a reader somewhere might actually stop and think about that question.

Blood in the Streets of Afghanistan

11:14 am in Uncategorized by David Swanson

KABUL, AFGHANISTAN — Afghanistan is full of wonderful people and could be a really terrific place to live. But first my government back home in the United States would have to stop murdering civilians over here.

I can’t join in antiwar rallies over here, where I would be happy to speak against the crimes of my own government, because it’s not considered safe for foreigners, especially Americans, to go near such scenes. Why? Well, imagine if this were happening in the United States and a citizen of the nation responsible were to come visiting:

A definite pattern has been established of killing civilians from the air and on the ground.

The United States has made clear its intention to continue and escalate this behavior.

On the first of March two U.S. helicopters hunted down and slaughtered, one-by-one, nine young boys gathering firewood.

Recently released photographs show U.S. soldiers posing with the corpses of people they’ve killed for sport.

Just this Monday troops reportedly killed an innocent shopkeeper.

On Tuesday, a raid killed six.

On Wednesday a convoy ran over three.

Elsewhere, soldiers ran two over and shot a third on Wednesday.

Dear Afghanistan, I would love to stay and apologize, but I must be going. I hope to see you in better times, to drink your tea, ski your mountains, and marvel at your people in a future era of peace, Inshallah.

War Is Illegal – Even in Libya

9:10 am in Uncategorized by David Swanson

It’s a simple point, but an important one, and one that gets overlooked. Whether or not you think a particular war is moral and good, the fact remains that war is illegal. Actual defense by a country when attacked is legal, but that only occurs once another country has actually attacked, and it must not be used as a loophole to excuse wider war that is not employed in actual defense.

Needless to say, a strong moral argument can be made for preferring the rule of law to the law of rulers. If those in power can do anything they like, most of us will not like what they do. Some laws are so unjust that when they are imposed on ordinary people, they should be violated. But allowing those in charge of a government to engage in massive violence and killing in defiance of the law is to sanction all lesser abuses as well, since no greater abuse is imaginable. It’s understandable that proponents of war would rather ignore or “re-interpret” the law than properly change the law through the legislative process, but it is not morally defensible.

For much of U.S. history, it was reasonable for citizens to believe, and often they did believe, that the U.S. Constitution banned aggressive war. Congress declared the 1846-1848 War on Mexico to have been “unnecessarily and unconstitutionally begun by the president of the United States.” Congress had issued a declaration of war, but the House believed the president had lied to them. (President Woodrow Wilson would later send troops to war with Mexico without a declaration.) It does not seem to be the lying that Congress viewed as unconstitutional in the 1840s, but rather the launching of an unnecessary or aggressive war.

As Attorney General Lord Peter Goldsmith warned British Prime Minister Tony Blair in March 2003, “Aggression is a crime under customary international law which automatically forms part of domestic law,” and therefore, “international aggression is a crime recognized by the common law which can be prosecuted in the U.K. courts.” U.S. law evolved from English common law, and the U.S. Supreme Court recognizes precedents and traditions based on it. U.S. law in the 1840s was closer to its roots in English common law than is U.S. law today, and statutory law was less developed in general, so it was natural for Congress to take the position that launching an unnecessary war was unconstitutional without needing to be more specific.

In fact, just prior to giving Congress the exclusive power to declare war, the Constitution gives Congress the power to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” At least by implication, this would seem to suggest that the United States was itself expected to abide by the “Law of Nations.” In the 1840s, no member of Congress would have dared to suggest that the United States was not itself bound by the “Law of Nations.” At that point in history, this meant customary international law, under which the launching of an aggressive war had long been considered the most serious offense.

Fortunately, now that we have binding multilateral treaties that explicitly prohibit aggressive war, we no longer have to guess at what the U.S. Constitution says about war. Article VI of the Constitution explicitly says this:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” [emphasis added]

So, if the United States were to make a treaty that banned war, war would be illegal under the supreme law of the land.

The United States has in fact done this, at least twice, in treaties that remain today part of our highest law: the Kellogg-Briand Pact and the United Nations Charter.


In 1928, the United States Senate, that same institution that on a good day can now get three percent of its members to vote against funding war escalations or continuations, voted 85 to 1 to bind the United States to a treaty by which it is still bound and in which we “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in [our] relations with” other nations. This is the Kellogg-Briand Pact. It condemns and renounces all war. The U.S. Secretary of State, Frank Kellogg, rejected a French proposal to limit the ban to wars of aggression. He wrote to the French ambassador that if the pact, “. . . were accompanied by definitions of the word ‘aggressor’ and by expressions and qualifications stipulating when nations would be justified in going to war, its effect would be very greatly weakened and its positive value as a guaranty of peace virtually destroyed.” The treaty was signed with its ban on all war included, and was agreed to by dozens of nations. Kellogg was awarded the Nobel Peace Prize in 1929, an award already rendered questionable by its previous bestowal upon both Theodore Roosevelt and Woodrow Wilson.

However, when the U.S. Senate ratified the treaty it added two reservations. First, the United States would not be obliged to enforce the treaty by taking action against those who violated it. Excellent. So far so good. If war is banned, it hardly seems a nation could be required to go to war to enforce the ban. But old ways of thinking die hard, and redundancy is much less painful than bloodshed.

The second reservation, however, was that the treaty must not infringe upon America’s right of self-defense. So, there, war maintained a foot in the door. The traditional right to defend yourself when attacked was preserved, and a loophole was created that could be and would be unreasonably expanded.

When any nation is attacked, it will defend itself, violently or otherwise. The harm in placing that prerogative in law is, as Kellogg foresaw, a weakening of the idea that war is illegal. An argument could be made for U.S. participation in World War II under this reservation, for example, based on the Japanese attack on Pearl Harbor, no matter how provoked and desired that attack was. War with Germany could be justified by the Japanese attack as well, through predictable stretching of the loophole. Even so, wars of aggression have been illegal (albeit unpunished) in the United States since 1928.

In addition, in 1945, the United States became a party to the United Nations Charter, which also remains in force today as part of the “supreme law of the land.” The United States had been the driving force behind the U.N. Charter’s creation. It includes these lines:

“All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

This would appear to be a new Kellogg-Briand Pact with at least an initial attempt at the creation of an enforcement body. And so it is. But the U.N. Charter contains two exceptions to its ban on warfare. The first is self- defense. Here is part of Article 51:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence (sic) if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

So, the U.N. Charter contains the same traditional right and small loophole that the U.S. Senate attached to the Kellogg-Briand Pact. It also adds another. The Charter makes clear that the U.N. Security Council can choose to authorize the use of force. This further weakens the understanding that war is illegal, by making some wars legal. Other wars are then, predictably, justified by claims of legality. The architects of the 2003 attack on Iraq claimed it was authorized by the United Nations, even though the United Nations disagreed.

The U.N. Security Council did authorize the War on Korea, but only because the U.S.S.R. was boycotting the Security Council at the time and China was still represented by the Kuomintang government in Taiwan. The Western powers were preventing the ambassador of the new revolutionary government of China from taking China’s seat as a permanent member of the Security Council, and the Russians were boycotting the Council in protest. If the Soviet and Chinese delegates had been present, there is no way that the United Nations would have taken sides in the war that eventually destroyed most of Korea.

It seems reasonable, of course, to make exceptions for wars of self-defense. You can’t tell people they’re forbidden to fight back when attacked. And what if they were attacked years or decades earlier and have been occupied by a foreign or colonial force against their will, albeit without recent violence? Many consider wars of national liberation to be a legal extension of the right to defense. The people of Iraq or Afghanistan don’t lose their right to fight back when enough years go by, do they? But a nation at peace cannot legally dredge up centuries- or millennia-old ethnic grievances as grounds for war. The dozens of nations in which U.S. troops are now based cannot legally bomb Washington. Apartheid and Jim Crow were not grounds for war. Nonviolence is not just more effective in remedying many injustices; it is also the only legal choice. People cannot “defend” themselves with war any time they wish.

What people can do is fight back when attacked or occupied. Given that possibility, why wouldn’t you also make an exception — as in the U.N. Charter — for the defense of other, smaller countries that are unable to defend themselves? After all, the United States liberated itself from England a long time ago, and the only way it can use this rationale as an excuse for war is if it “liberates” other countries by overthrowing their rulers and occupying them. The idea of defending others seems very sensible, but — exactly as Kellogg predicted — loopholes lead to confusion and confusion allows larger and larger exceptions to the rule until a point is reached at which the very idea that the rule exists at all seems ludicrous.

And yet it does exist. The rule is that war is a crime. There are two narrow exceptions in the U.N. Charter, and it is easy enough to show that any particular war does not meet either of the exceptions.

Libya has not attacked the United States.

The United Nations has not authorized bombing Libya.

On August 31, 2010, when President Barack Obama was scheduled to give a speech about the War on Iraq, blogger Juan Cole composed a speech he thought the president might like to, but of course did not, give:

“Fellow Americans, and Iraqis who are watching this speech, I have come here this evening not to declare a victory or to mourn a defeat on the battlefield, but to apologize from the bottom of my heart for a series of illegal actions and grossly incompetent policies pursued by the government of the United States of America, in defiance of domestic US law, international treaty obligations, and both American and Iraqi public opinion.

“The United Nations was established in 1945 in the wake of a series of aggressive wars of conquest and the response to them, in which over 60 million people perished. Its purpose was to forbid such unjustified attacks, and its charter specified that in future wars could only be launched on two grounds. One is clear self-defense, when a country has been attacked. The other is with the authorization of the United Nations Security Council.

“It was because the French, British, and Israeli attack on Egypt in 1956 contravened these provisions of the United Nations Charter that President Dwight D. Eisenhower condemned that war and forced the belligerents to withdraw. When Israel looked as though it might try to hang on to its ill-gotten spoils, the Sinai Peninsula, President Eisenhower went on television on February 21, 1957, and addressed the nation. These words have largely been suppressed and forgotten in the United States of today, but they should ring through the decades and centuries:

“‘If the United Nations once admits that international dispute can be settled by using force, then we will have destroyed the very foundation of the organization, and our best hope of establishing a real world order. That would be a disaster for us all…. [Referring to Israeli demands that certain conditions be met before it relinquished the Sinai, the president said that he] “would be untrue to the standards of the high office to which you have chosen me if I were to lend the influence of the United States to the proposition that a nation which invades another should be permitted to exact conditions for withdrawal….’

“‘If it [the United Nations Security Council] does nothing, if it accepts the ignoring of its repeated resolutions calling for the withdrawal of the invading forces, then it will have admitted failure. That failure would be a blow to the authority and influence of the United Nations in the world and to the hopes which humanity has placed in the United Nations as the means of achieving peace with justice.’”

Eisenhower was referring to an incident that began when Egypt nationalized the Suez Canal; Israel invaded Egypt in response. Britain and France pretended to step in as outside parties concerned that the Egyptian-Israeli dispute might jeopardize free passage through the canal. In reality, Israel, France, and Britain had planned the invasion of Egypt together, all agreeing that Israel would attack first, with the other two nations joining in later pretending they were trying to stop the fighting. This illustrates the need for a truly impartial international body (something the United Nations has never become but someday could) and the need for a complete ban on war. In the Suez crisis, the rule of law was enforced because the biggest kid on the block was inclined to enforce it. When it came to overthrowing governments in Iran and Guatemala, shifting away from big wars to secret operations much as Obama would do, President Eisenhower held a different view of the value of law enforcement. When it came to the 2003 invasion of Iraq, Obama was not about to concede that the crime of aggression should be punished. The National Security Strategy published by the White House in May 2010 declared:

“Military force, at times, may be necessary to defend our country and allies or to preserve broader peace and security, including by protecting civilians facing a grave humanitarian crisis…. The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force.”

Try telling your local police that you may soon go on a violent crime spree, but that you will also seek to adhere to standards that govern the use of force.


Two other important documents, one from 1945 and the other from 1946, treated wars of aggression as crimes. The first was the Charter of the International Military Tribunal at Nuremberg, the institution that tried Nazi war leaders for their crimes. Among the crimes listed in the charter were “crimes against peace,” “war crimes,” and “crimes against humanity.” Crimes “against peace” were defined as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” The next year, the Charter of the International Military Tribunal for the Far East (the trial of Japanese war criminals) used the same definition. These two sets of trials deserve a great deal of criticism, but a great deal of praise as well.

On the one hand, they enforced victors’ justice. They left out of the lists of prosecuted crimes certain crimes, such as the bombing of civilians, in which the allies had also engaged. And they failed to prosecute the allies for other crimes that the Germans and Japanese were prosecuted and hanged for. U.S. General Curtis LeMay, who commanded the firebombing of Tokyo, said “I suppose if I had lost the war, I would have been tried as a war criminal. Fortunately, we were on the winning side.”

The tribunals claimed to start the prosecutions at the very top, but they gave the Emperor of Japan immunity. The United States gave immunity to over 1,000 Nazi scientists, including some who were guilty of the most horrendous crimes, and brought them to the United States to continue their research. General Douglas MacArthur gave Japanese microbiologist and lieutenant general Shiro Ishii and all the members of his bacteriological research units immunity in exchange for germ warfare data derived from human experimentation. The British learned from the German crimes they prosecuted how to later set up concentration camps in Kenya. The French recruited thousands of SS and other German troops into their Foreign Legion, so that about half of the legionnaires fighting France’s brutal colonial war in Indochina were none other than the most hardened remnants of the German Army from World War II, and the torture techniques of the German Gestapo were widely used on French detainees in the Algerian War of Independence. The United States, also working with former Nazis, spread the same techniques throughout Latin America. Having executed a Nazi for opening dikes to flood Dutch farmland, the United States proceeded to bomb dams in Korea and Vietnam for the same purpose.

War veteran and Atlantic Monthly correspondent Edgar L. Jones returned from World War II, and was shocked to discover that civilians back home thought highly of the war. “Cynical as most of us overseas were,” Jones wrote, “I doubt if many of us seriously believed that people at home would start planning for the next war before we could get home and talk without censorship about this one.” Jones objected to the sort of hypocrisy that drove the war crimes trials:

“Not every American soldier, or even one per cent of our troops, deliberately committed unwarranted atrocities, and the same might be said for the Germans and Japanese. The exigencies of war necessitated many so-called crimes, and the bulk of the rest could be blamed on the mental distortion which war produced. But we publicized every inhuman act of our opponents and censored any recognition of our own moral frailty in moments of desperation.

“I have asked fighting men, for instance, why they — or actually, why we — regulated flame-throwers in such a way that enemy soldiers were set afire, to die slowly and painfully, rather than killed outright with a full blast of burning oil. Was it because they hated the enemy so thoroughly? The answer was invariably, ‘No, we don’t hate those poor bastards particularly; we just hate the whole goddam mess and have to take it out on somebody.’ Possibly for the same reason, we mutilated the bodies of enemy dead, cutting off their ears and kicking out their gold teeth for souvenirs, and buried them with their testicles in their mouths, but such flagrant violations of all moral codes reach into still-unexplored realms of battle psychology.”

On the other hand, there is a great deal to praise in the trials of the Nazi and Japanese war criminals. Hypocrisy not withstanding, surely it is preferable that some war crimes be punished than none. Many people intended that the trials establish a norm that would later be enforced equally for all crimes against the peace and crimes of war. The Chief Prosecutor at Nuremberg, U.S. Supreme Court Justice Robert H. Jackson, said in his opening statement:

“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. The Charter of this Tribunal evidences a faith that the law is not only to govern the conduct of little men, but that even rulers are, as Lord Chief Justice Coke put it to King James, ‘under … the law.’ And 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.”

The tribunal concluded that aggressive war was “not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” The tribunal prosecuted the supreme crime of aggression and many of the lesser crimes that followed from it.

The ideal of international justice for war crimes has not yet been achieved, of course. The U.S. House Judiciary Committee included a charge of aggression against President Richard Nixon for ordering the secret bombing and invasion of Cambodia in its draft articles of impeachment. Rather than including those charges in the final version, however, the Committee decided to focus more narrowly on Watergate, wire-tapping, and contempt of Congress.

In the 1980s Nicaragua appealed to the International Court of Justice (ICJ). That court ruled that the United States had organized the militant rebel group, the Contras, and mined Nicaragua’s harbors. It found those actions to constitute international aggression. The United States blocked enforcement of the judgment by the United Nations and thereby prevented Nicaragua from obtaining any compensation. The United States then withdrew from the binding jurisdiction of the ICJ, hoping to ensure that never again would U.S. actions be subject to the adjudication of an impartial body that could objectively rule on their legality or criminality.

More recently, the United Nations set up tribunals for Yugoslavia and Rwanda, as well as special courts in Sierra Leone, Lebanon, Cambodia, and East Timor. Since 2002, the International Criminal Court (ICC) has prosecuted war crimes by the leaders of small countries. But the crime of aggression has loomed as the supreme offense for decades without being punished. When Iraq invaded Kuwait, the United States evicted Iraq and punished it severely, but when the United States invaded Iraq, there was no stronger force to step in and undo or punish the crime.

In 2010, despite U.S. opposition, the ICC established its jurisdiction over future crimes of aggression. In what types of cases it will do so, and in particular whether it will ever go after powerful nations that have not joined the ICC, nations that hold veto power at the United Nations, remains to be seen. Numerous war crimes, apart from the overarching crime of aggression, have in recent years been committed by the United States in Iraq, Afghanistan, and elsewhere, but those crimes have not yet been prosecuted by the ICC.

In 2009, an Italian court convicted 23 Americans in absentia, most of them employees of the CIA, for their roles in kidnapping a man in Italy and shipping him to Egypt to be tortured. Under the principle of universal jurisdiction for the most terrible crimes, which is accepted in a growing number of countries around the world, a Spanish court indicted Chilean dictator Augusto Pinochet and 9-11 suspect Osama bin Laden. The same Spanish court then sought to prosecute members of the George W. Bush administration for war crimes, but Spain is being pressured by the Obama administration to drop the case. In 2010, a judge involved, Baltasar Garzón, was removed from his position for allegedly abusing his power by investigating the executions or disappearances of more than 100,000 civilians at the hands of supporters of Gen. Francisco Franco during the 1936-39 Spanish Civil War and the early years of the Franco dictatorship.

In 2003, a lawyer in Belgium filed a complaint against Gen. Tommy R. Franks, head of U.S. Central Command, alleging war crimes in Iraq. The United States quickly threatened to move NATO headquarters out of Belgium if that nation did not rescind its law permitting trials of foreign crimes. Charges filed against U.S. officials in other European nations have thus far failed to go to trial as well. Civil suits brought in the United States by victims of torture and other war crimes have run up against claims from the Justice Department (under the direction of Presidents Bush and Obama) that any such trials would constitute a threat to national security. In September 2010, the Ninth Circuit Court of Appeals, agreeing with that claim, threw out a case that had been brought against Jeppesen Dataplan Inc., a subsidiary of Boeing, for its role in “renditioning” prisoners to countries where they were tortured.

In 2005 and 2006 while Republicans held a majority in Congress, Democratic Congress members led by John Conyers (Mich.), Barbara Lee (Calif.), and Dennis Kucinich (Ohio) pushed hard for an investigation into the lies that had launched the aggression against Iraq. But from the time the Democrats took the majority in January 2007 up to the present moment, there has been no further mention of the matter, apart from a Senate committee’s release of its long-delayed report.

In Britain, in contrast, there have been endless “inquiries” beginning the moment the “weapons of mass destruction” weren’t found, continuing to the present, and likely extending into the foreseeable future. These investigations have been limited and in most cases can accurately be characterized as whitewashes. They have not involved criminal prosecution. But at least they have actually taken place. And those who have spoken up a little have been lauded and encouraged to speak up a little more. This climate has produced tell-all books, a treasure trove of leaked and declassified documents, and incriminating oral testimony. It has also seen Britain pull its troops out of Iraq. In contrast, by 2010 in Washington, it was common for elected officials to praise the 2007 “surge” and swear they’d known Iraq would turn out to be a “good war” all along. Similarly, Britain and several other countries have been investigating their roles in U.S. kidnapping, imprisonment, and torture programs, but the United States has not — President Obama having publicly instructed the Attorney General not to prosecute those most responsible, and Congress having performed an inspired imitation of a possum.


Political Science professor Michael Haas published a book in 2009 the title of which reveals its contents: “George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes.” (A 2010 book by the same author includes Obama in his charges.) Number one on Haas’s 2009 list is the crime of aggression against Afghanistan and Iraq. Haas includes five more crimes related to the illegality of war:

War Crime #2. Aiding Rebels in a Civil War. (Supporting the Northern Alliance in Afghanistan).
War Crime #3. Threatening Aggressive War.
War Crime #4. Planning and Preparing for a War of Aggression.
War Crime #5. Conspiracy to Wage War.
War Crime #6. Propaganda for War.

The launching of a war can also involve numerous violations of domestic law. Many such crimes relating to Iraq are detailed in “The 35 Articles of Impeachment and the Case for Prosecuting George W. Bush,” which was published in 2008 and includes an introduction that I wrote and 35 articles of impeachment that Congressman Dennis Kucinich (D., Ohio) presented to Congress. Bush and Congress did not comply with the War Powers Act, which requires a specific and timely authorization of war from Congress.

Bush did not even comply with the terms of the vague authorization that Congress did issue. Instead he submitted a report full of lies about weapons and ties to 9-11. Bush and his subordinates lied repeatedly to Congress, which is a felony under two different statutes. Thus, not only is war a crime, but war lies are a crime too.

I don’t mean to pick on Bush. As Noam Chomsky remarked in about 1990, “If the Nuremberg laws were applied, then every post-war American president would have been hanged.” Chomsky pointed out that General Tomoyuki Yamashita was hanged for having been the top commander of Japanese troops who committed atrocities in the Philippines late in the war when he had no contact with them. By that standard, Chomsky said, you’d have to hang every U.S. president.

But, Chomsky argued, you’d have to do the same even if the standards were lower. Truman dropped atomic bombs on civilians. Truman “proceeded to organize a major counter-insurgency campaign in Greece which killed off about one hundred and sixty thousand people, sixty thousand refugees, another sixty thousand or so people tortured, political system dismantled, right-wing regime. American corporations came in and took it over.” Eisenhower overthrew the governments of Iran and Guatemala and invaded Lebanon. Kennedy invaded Cuba and Vietnam. Johnson slaughtered civilians in Indochina and invaded the Dominican Republic. Nixon invaded Cambodia and Laos. Ford and Carter supported the Indonesian invasion of East Timor. Reagan funded war crimes in Central America and supported the Israeli invasion of Lebanon. These were the examples Chomsky offered off the top of his head. There are many more.


Of course, Chomsky blames presidents for wars of aggression because they launched them. Constitutionally, however, the launching of a war is the responsibility of Congress. Applying the standard of Nuremberg, or of the Kellogg-Briand Pact — ratified overwhelmingly by the Senate — to Congress itself would require a lot more rope or, if we outgrow the death penalty, a lot of prison cells.

Until President William McKinley created the first presidential press secretary and courted the press, Congress looked like the center of power in Washington. In 1900 McKinley created something else: the power of presidents to send military forces to fight against foreign governments without congressional approval. McKinley sent 5,000 troops from the Philippines to China to fight against the Boxer Rebellion. And he got away with it, meaning that future presidents could probably do the same.

Since World War II, presidents have acquired tremendous powers to operate in secrecy and outside the oversight of Congress. Truman added to the presidential toolbox the CIA, the National Security Advisor, the Strategic Air Command, and the nuclear arsenal. Kennedy used new structures called the Special Group Counter-Insurgency, the 303 Committee, and the Country Team to consolidate power in the White House, and the Green Berets to allow the president to direct covert military operations. Presidents began asking Congress to declare a state of national emergency as an end run around the requirement of a declaration of war. President Clinton used NATO as a vehicle for going to war despite congressional opposition.

The trend that moved war powers from Congress to the White House reached a new peak when President George W. Bush asked lawyers in his Justice Department to draft secret memos that would be treated as carrying the force of law, memos that re-interpreted actual laws to mean the opposite of what they had always been understood to say. On October 23, 2002, Assistant Attorney General Jay Bybee signed a 48-page memo to the president’s counsel Alberto Gonzales titled Authority of the President Under Domestic and International Law to Use Military Force Against Iraq. This secret law (or call it what you will, a memo masquerading as a law) authorized any president to single-handedly commit what Nuremberg called “the supreme international crime.”

Bybee’s memo declares that a president has the power to launch wars. Period. Any “authorization to use force” passed by Congress is treated as redundant. According to Bybee’s copy of the U.S. Constitution, Congress can “issue formal declarations of war.” According to mine, Congress has the power “to declare war,” as well as every related substantive power. In fact, there are no incidental formal powers anywhere in my copy of the Constitution.

Bybee dismisses the War Powers Act by citing Nixon’s veto of it rather than addressing the law itself, which was passed over Nixon’s veto. Bybee cites letters written by Bush. He even cites a Bush signing statement, a statement written to alter a new law. Bybee relies on previous memos produced by his office, the Office of Legal Counsel in the Department of Justice. And he leans most heavily on the argument that President Clinton had already done similar things. For good measure, he cites Truman, Kennedy, Reagan, and Bush Sr., plus an Israeli ambassador’s opinion of a U.N. declaration condemning an aggressive attack by Israel. These are all interesting precedents, but they aren’t laws.

Bybee claims that in an age of nuclear weapons “anticipatory self-defense” can justify launching a war against any nation that might conceivably acquire nukes, even if there is no reason to think that nation would use them to attack yours:

“We observe, therefore, that even if the probability that Iraq itself would attack the United States with WMD, or would transfer such a weapon to terrorists for their use against the United States, were relatively low, the exceptionally high degree of harm that would result, combined with a limited window of opportunity and the likelihood that if we do not use force, the threat will increase, could lead the President to conclude that military action is necessary to defend the United States.”

Never mind the high degree of harm the “military action” produces, or its clear illegality. This memo justified a war of aggression and all the crimes and abuses of power abroad and at home that were justified by the war. At the same time that presidents have assumed the power to brush aside the laws of warfare, they have publicly spoken of supporting them. Harold Lasswell pointed out in 1927 that a war could better be marketed to “liberal and middle-class people” if packaged as the vindication of international law. The British stopped arguing for World War I on the basis of national self-interest when they were able to argue against the German invasion of Belgium. The French quickly organized a Committee for the Defense of International Law.

“The Germans were staggered by this outburst of affection for international law in the world, but soon found it possible to file a brief for the defendant.…The Germans…discovered that they were really fighting for the freedom of the seas and the rights of small nations to trade, as they saw fit, without being subject to the bullying tactics of the British fleet.”

The allies said they were fighting for the liberation of Belgium, Alsace, and Lorraine. The Germans countered that they were fighting for the liberation of Ireland, Egypt, and India.

Despite invading Iraq in the absence of U.N. authorization in 2003, Bush claimed to be invading in order to enforce a U.N. resolution. Despite fighting a war almost entirely with U.S. troops, Bush was careful to pretend to be working within a broad international coalition. That rulers are willing to promote the idea of international law while violating it, thereby risking endangering themselves, may suggest the importance they place on winning immediate popular approval for each new war, and their confidence that once a war has begun no one will go back to examine too closely how it happened.


The Hague and Geneva Conventions and other international treaties to which the United States is a party ban the crimes that are always part of any war, regardless of the legality of the war as a whole. Many of these bans have been placed in the U.S. Code of Law, including the crimes found in the Geneva Conventions, in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and in the conventions against both chemical and biological weapons. In fact, most of these treaties require signatory countries to pass domestic legislation to make the treaties’ provisions part of each country’s own legal system. It took until 1996 for the United States to pass the War Crimes Act to give the 1948 Geneva Conventions the force of U.S. Federal Law. But, even where the activities forbidden by treaties have not been made statutory crimes, the treaties themselves remain part of the “Supreme Law of the Land” under the United States Constitution.

Michael Haas identifies and documents 263 war crimes in addition to aggression, that have occurred just in the current War on Iraq, and divides them into the categories of “conduct of the war,” “treatment of prisoners,” and “the conduct of the postwar occupation.” A random sample of the crimes:

War Crime #7. Failure to Observe the Neutrality of a Hospital.
War Crime #12. Bombing of Neutral Countries.
War Crime #16. Indiscriminate Attacks Against Civilians.
War Crime #21. Use of Depleted Uranium Weapons.
War Crime #31. Extrajudicial Executions.
War Crime #55. Torture.
War Crime #120. Denial of Right to Counsel.
War Crime #183. Incarceration of Children in the Same Quarters as Adults.
War Crime #223. Failure to Protect Journalists.
War Crime #229. Collective Punishment.
War Crime #240. Confiscation of Private Property.

The list of abuses that accompany wars is long, but it’s hard to imagine wars without them. The United States seems to be moving in the direction of unmanned wars conducted by remote-controlled drones, and small- scale targeted assassinations conducted by special forces under the secret command of the president. Such wars may avoid a great many war crimes, but are themselves completely illegal. A United Nations report in June 2010 concluded that the U.S. drone attacks on Pakistan were illegal. The drone attacks continued.

A lawsuit filed in 2010 by the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) challenged the practice of targeted killings of Americans. The argument the plaintiffs made focused on the right to due process. The White House had claimed the right to kill Americans outside the United States, but it would of course be doing so without charging those Americans with any crimes, putting them on trial, or providing them with any opportunity to defend themselves against accusations. CCR and the ACLU were retained by Nasser al-Aulaqi to bring a lawsuit in connection with the government’s decision to authorize the targeted killing of his son, U.S. citizen Anwar al-Aulaqi. But the Secretary of the Treasury declared Anwar al-Aulaqi a “specially designated global terrorist,” which made it a crime for lawyers to provide representation for his benefit without first obtaining a special license, which the government at the time of this writing has not granted.

Also in 2010, Congressman Dennis Kucinich (D., Ohio) introduced a bill to prohibit the targeted killings of U.S. citizens. Since, to my knowledge, Congress had not up to that point passed a single bill not favored by President Obama since he entered the White House, it was unlikely that this one would break that streak. There was just not enough public pressure to force such changes.

One reason, I suspect, for the lack of pressure was a persistent belief in American exceptionalism. If the president does it, to quote Richard Nixon, “that means that it’s not illegal.” If our nation does it, it must be legal. Since the enemies in our wars are the bad guys, we must be upholding the law, or at least upholding ad hoc might-makes-right justice of some sort. We can easily see the conundrum created if people on both sides of a war assume that their side can do no wrong. We would be better off recognizing that our nation, like other nations, can do things wrong, can in fact do things very, very wrong — even criminal. We would be better off organizing to compel Congress to cease funding wars. We would be better off deterring would-be war makers by holding past and current war makers accountable.

David Swanson is the author of “War Is A Lie” from which this is excerpted:

Withdraw the Last Combat Politicians from Washington

11:38 pm in Uncategorized by David Swanson

Pretending to end a war and occupation, while stationing 50,000 soldiers, 18,000 mercenaries, and 84,000 support contractors in massive and permanent military bases in Iraq is a far cry from what candidate Barack Obama described as ending "the mind-set that got us into war in the first place." It fits better with Nobel Peace laureate Obama’s description of war as "not only necessary but morally justified."

Over the past 20 years, the United States has imposed on Iraq two intense wars and many years of bombing and deprivation, the death of millions, and the displacement of more millions now left desperate and abandoned in Iraq and around the region. Violence in Iraq is common and increasing, sex trafficking is on the rise, the basic infrastructure of electricity, water, sewage, and healthcare is in ruins, life expectancy has dropped, cancer rates in Fallujah have surpassed those in Hiroshima, anti-U.S. terrorist groups are using the occupation of Iraq as a recruiting tool, there is no functioning government, and most Iraqis say they were better off with Saddam Hussein in power. And this is all prior to the hell to come when the agreed upon complete withdrawal of all U.S. forces at the end of next year turns out to be a fraud.

But the greatest damage of the ongoing War on Iraq, as with the War on Afghanistan or the War on Pakistan or any wars our planet has known, is its contribution to future wars. During the past century, war has become far more deadly. Its victims are now primarily non-participants. And its victims can be almost exclusively on one side. Even the participants from the dominant side can be drawn from a population coerced into fighting and isolated from those making the decisions or benefitting. Participants who survive war are far more likely now to have been trained and conditioned to do things they cannot live with having done. In short, war ever more closely resembles mass murder, a resemblance first put into our legal system by the banning of war in the Kellogg-Briand Peace Pact in 1928. The United States Senate, that same institution that on a good day can now get three percent of its members to vote against funding war escalations or continuations, 82 years ago voted 85 to 1 to bind the United States to a treaty it is still bound by in which we "condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in [our] relations with" other nations. In 1945 our nation became party to the United Nations Charter, which also binds us, through Article VI of the U.S. Constitution, to using war only in actual self-defense. And earlier this year the International Criminal Court, despite U.S. opposition, established the policy of prosecuting future crimes of aggression.

If our government were busily ending the mind-set that makes wars possible, we would be withdrawing our military from Iraq, making reparations to the Iraqi people, and building peaceful cultural ties with them. Instead, we’re using this ongoing war as a means to legalize aggressive warfare through the immunity being granted its architects. And we’re establishing the dangerous precedent whereby a permanent occupation, whether hot or cold, can be defined as a war that has ended. War is thus peace. Meanwhile, repeated drone bombings and troops on the ground in Pakistan, secret military operations in other nations, wars by proxy, and official — if illegal — policies of assassination and regime change are establishing that wars can be launched and indefinitely continued, not only without public or legislative support, but without ever being identified as wars at all. What the tribunal at Nuremberg called the supreme crime is ceasing to be a crime, not because we have new weapons or face different enemies or elect the wrong leaders or organize the wrong peace movements, but because the masters of war face no prospect of accountability for what they’ve done and what they may potentially do.

The past couple centuries of wars has not been a really bad run of luck. We haven’t accidentally empowered the very worst people we could have found. Electing new presidents and congress members, first of this party, then of that other party, doesn’t change a thing. Whether the blame falls on systemic pressures from the permanent bureaucracy and what Nick Turse calls the military industrial technological entertainment academic media corporate matrix, or whether the problem is a psychological flaw in the character of individuals likely to be elected, or some of each, it is clear that our wars are not a case of the best laid plans going awry. These are evil plans all the way through. That we so often hear about mistakes made in wars is sometimes a result of conflict between stated and real intentions, sometimes a result of war planners’ almost unfathomable lack of concern for human costs, sometimes a result of an ineffective culture of accountability in the military, or of the hopelessness of expecting people conditioned in hatred and murder to engage in only acceptable atrocities, and sometimes a result of wars failing on their own terms. That they so often do fail on their own terms may be an indication of less than rational motivations behind them. But the motivation is always criminal, and crimes need to be both prevented and deterred.

Nothing has changed in the thinking of those in power during the decade since the Project for the New American Century declared that our country needed to "perform the constabulary duties associated with shaping the security environment in critical regions" of the world. Nothing has changed in the mind-set of Washington war makers in the nine years since Donald Rumsfeld, according to Wesley Clark, put out a memo proposing to take over seven countries in five years: Iraq, Syria, Lebanon, Libya, Somalia, Sudan, and Iran. When information on what our government is doing gets leaked, the only people prosecuted for crimes are still the whistleblowers. When an ally like Israel commits crimes with weapons we’ve provided, our government’s only interest is in expressing its support. The rarest of prosecutions for war crimes in the United States are exclusively for those of lowest rank and least responsibility. This doesn’t look like ending the mind-set that gets us into war.

Yet we have ended that mind-set before. We’ve ended it in Germany and Japan. And we began with individual accountability. We prosecuted the crime of aggression and lesser war crimes, starting with the worst crimes and starting with the highest authorities. Then we purged those two nations’ governments of all militarists. We forbid the development of industries that would profit from war. We banned war in national constitutions. The closest thing Washington, D.C., has seen to a purging of its bureaucracy was President George W. Bush’s spree of political and religious based hiring, firing, and re-assigning. Needless to say, that process — still largely not corrected for — did nothing for peace. If there is going to be any prosecuting or purging of war makers and war mongers, it’s going to have to come from us. Expecting elected officials to take the lead on their own will bring us only eternal war.

Of course, way back in 2005 and 2006, a lot of Democrats in Congress behaved as if they really wanted to hold war makers accountable. Had those same people been recognizable during the past four years, the world might look very different. Great Britain and other nations are investigating their bit parts in this particular illegal war, but our own country is not. Italy has convicted a couple of dozen CIA operatives of kidnapping a man to have him tortured. Spain and other nations are investigating U.S. war crimes and/or their own complicity in illegal U.S. imprisonments. Canada has apologized to a victim of U.S. crime. But in this country, the White House still claims the power to torture or rendition and has claimed the additional privilege to assassinate foreigners and U.S. citizens alike.

Pursuing local and state prosecutions of war crimes remains a viable option with no statute of limitations for those crimes that have resulted in deaths. Taking the money out of our system of government remains a sensible step toward gaining public influence over our so-called public servants, and while states will probably need to circumvent Congress to get this done, there are bills in Congress that would start the constitutional amendment process if passed, including an excellent one from Congresswoman Donna Edwards. But I want to highlight two approaches that I think might advance the agenda of permanent peace most effectively.

First, while our elections are enormously corrupted by money and media and political parties, we can still determine their outcomes sometimes, especially in House elections, and even more so in House primaries. And while it is the application of pressure in between elections that has the greatest impact, that pressure is far more effective when tied to a credible threat of unelection in the next cycle. If we can, in November, and in primaries between now and then, unelect some war funders and elect some new people who have committed to never funding aggressive wars, our voices will ring much more loudly during the following months.

On July 27, 2010, 115 congress members behaved as if they might be worthy of keeping their jobs. These include 102 Democrats and 12 Republicans who voted no on dumping $33 billion into escalating the war in Afghanistan, plus one more Democrat, Alan Grayson, who publicly lobbied his colleagues to vote No in an unprecedented manner but was unable to be there to vote. Another 317 congress members clearly indicated their worthiness for being unelected, 308 by voting for the money and 9 by not voting. Their names and background on how the vote worked and what it meant can be found, along with a list of 96 challengers committed to not funding war in Iraq or Afghanistan, at

There is absolutely no excuse for not having, and we have no right to accuse anyone else of corruption if we cannot create, a movement publicly and noisily dedicated to voting only for candidates who will stop taking our money and dumping it into wars. Of course, this principled and necessary stand depends on understanding that no candidate can be much worse than someone who funnels our money — so badly needed for so many things — into wars. We have to be willing, in some districts, to vote for candidates who stand little chance of winning, even if the result may be electing someone even worse than the incumbent or someone from our less preferred political party. In some districts, there’s not even a decent peace candidate on the ballot, and we have to write a name in. But someone can certainly be found to write in, and maybe next time they’ll run. In the absence of such a write-in prospect, I recommend writing in the name Gandhi. Of course, the point is not to unelect people for its own sake, but to influence them and those who come after them by establishing that a serious and growing block of voters will only vote for people who never fund aggressive war — or at least not in supplemental bills of the sort 115 did the right thing on in July.

In a lot of districts, serious peace candidates stand a good chance of winning, and we are also free to fund and volunteer for candidates in districts other than our own. Which brings me to my second recommendation, one detailed at One reason Attorney General Alberto Gonzales was forced to resign was the growing support for a bill in the House that read in its entirety:

"Resolved, That the Committee on the Judiciary shall investigate fully whether sufficient grounds exist for the House of Representatives to impeach Alberto R. Gonzales, Attorney General of the United States, for high crimes and misdemeanors."

For years now, the public and human rights groups have lacked any mechanism for compelling Congress to assert its existence as the power through which we can hold accountable torturers as well as architects of aggressive war. Jay Bybee signed memos authorizing illegal war, torture, and a variety of other war crimes. In July the House Judiciary Committee revealed that in May Bybee had testified in secret on the topic of torture, admitting to his criminal memos, placing blame on his former subordinate John Yoo and on the White House, and indicating that the CIA tortured prior to and in manners other than those supposedly legitimated by the memos. Even a serious movement to compel an impeachment hearing for Bybee would change the calculations of those considering the commission of future war crimes, including the crime of aggression. An actual impeachment could begin to bring numerous criminals to justice as each one pointed a finger at others.

The trick is getting one of the 435 existing members of Congress to introduce a one-sentence bill that we can build support behind. Thus far, none has been willing. David Segal is different. Segal stands a very good chance of winning a Democratic primary in Rhode Island and then the congressional seat. His mission, if elected to Congress, will be to help organize a progressive block of members that actually takes stands and even funds its members independently of a larger party. Segal has committed to voting against another dime for war, and he has also committed to introducing the one-sentence bill we need on Jay Bybee. No incumbent and no other challenger has made this commitment. But many incumbents would sign onto such a bill if Segal is elected and introduces it:

By suggesting that we elect the right people who will take such useful steps, please do not get the impression that those actions alone will be sufficient. The purpose of electing better people is to put greater weight behind our voices as we raise hell year-in and year-out. The purpose of getting a bill introduced is so that we have a specific demand to make when we sit-in congress members’ offices and prevent them from functioning. Wars will not end without a major cultural shift and massive nonviolent resistance, both by us civilians and within the military. But such a movement, if we can continue building it, cannot be formless and directionless. We must be able to make demands and hold those who fail to meet them accountable.

In this regard, the following event is planned for discussion of how we move forward. Please attend it if in the area, or watch for the video online:

Iraq: The Legacy of the 7-Year U.S. Occupation
When: Sunday, August 29th 2010
Time: 5pm-9pm
Location: Busboys and Poets, 5th and K Sts. NW, Washington, D.C.

Sign up on FaceBook:!/event.php?eid=119252331460938

Is the U.S. military really leaving Iraq or just rebranding? What is the toll of seven years of occupation on Iraqis, U.S. soldiers and our economies? What is the status of Iraqi refugees around the world? Is it still possible to hold accountable those who dragged us into the war or committed crimes such as torture? What role did Congress and the media play in facilitating the invasion/occupation? We’ll also look at the role of the peace movement — its strengths and weaknesses — and draw key lessons to make our work for peace, including in Afghanistan, more effective.

Speakers/performers include:
Congresswoman Donna Edwards
Kymone Tecumseh Freeman, playwright, performer, reading Letters from Iraq
Head-Roc, hip-hop artist
Phyllis Bennis, Institute for Policy Studies
Raed Jarrar, Peace Action
Manal Omar, author
Bill Fletcher, labor leader, scholar
Josh Stieber, Iraq Veterans Against the War
Medea Benjamin, CODEPINK and Global Exchange
Andy Shallal, Iraqi artist, owner Busboys and Poets
David Swanson, author
Gene Bruskin, US Labor Against the War
Felicia Eaves, activist

Sponsored by: CODEPINK, Peace Action, Institute for Policy Studies, Fellowship of Reconciliation, Global Exchange, Just Foreign Policy, Veterans for Peace, Iraq Veterans Against the War, Military Families Speak Out, Progressive Democrats of America (PDA), U.S. Labor Against the War, ANSWER, World Can’t Wait, Voices for Creative Nonviolence, War is a Crime, Rivera Project, Washington Peace Center.

Is Murder the New Torture?

1:33 pm in Uncategorized by David Swanson

By David Swanson

I’ve been reading about the history of torture, including John T. Parry’s new book "Understanding Torture: Law, Violence, and Political Identity." Parry gives a history of torture in Europe and the United States through the twentieth century, establishing its pervasiveness, and the repetitiveness of the excuses and legalistic machinations used to allow it. Parry sees torture as an absolutely normal activity in our society, but an activity that at least until now was always treated as an aberration, no matter how systemic. Parry even tries to suggest at times that torture is required, necessary, or "essential" for western democracies.

That torture has been pervasive I am persuaded of. That the bizarre torture memos crafted by John Yoo and Jay Bybee and their gang differ less than we might think from previous legal memos, laws, and treaties I accept to some extent. That the US prison and immigration systems fed into the new torture regime is beyond dispute. But Parry could have picked out many times and places to describe that did not use torture to the same extent. The racist and colonialist attitudes that Parry sees as a major support for torture are not constant. The fact that someone can make a twisted legalistic argument for torture does not make it legal beyond serious dispute. The new public acceptance and mainstreaming of torture in the United States has been a dramatic change, at least in awareness; and a dramatic change in a different direction, even as a reaction to this one, is possible.

As Parry notes, the International Covenant on Civil and Political Rights bans both torture and cruel, inhuman, or degrading treatment. If we need to clarify that this ban allows no exceptions based on time or place or citizenship or any other factor, then let us clarify that and put it into our Constitution, our treaties, and our statutes, with a requirement to prosecute every act of conspiracy to engage in any such behavior. The world order will not collapse, at least not in a bad way.

But there is a more serious problem, I think. Namely, murder seems to be advancing in the U.S. toolkit as a replacement for torture. Both tools, murder and torture, produce exactly the same amount of useful intelligence. Both tools scare the hell out of people abroad and at home. Both tools serve to teach a domestic audience that certain types of people are not fully people and cannot be dealt with humanely. Both tools help to advance the further stripping away of civil liberties through fear and terror. The goals of torture that the CIA has advanced for decades of eliminating a person’s entire consciousness and identity, the mission of placing barbarians completely under control of the empire, what accomplishes this better than murder?

Look at all the hassle our government has been through trying to legalize and justify torture, not to mention the kidnappings and imprisonments necessary to engage in torture. We’ve seen CIA agents convicted in Italy and prosecutions of high level Americans opened in Spain. Former officials are facing civil suits in the United States for damages. Who needs the headaches? The Director of National Intelligence legalized the assassination of Americans abroad, and by implication any non-Americans as well, by going to Congress in February and announcing that such crimes would henceforth be legal. Easy peasey. No fuss, no muss. And if you want some future al-Libi to tell you that some future Iraq has scary scary weapons, don’t torture him; announce that he manages the stockpile and then put a bullet in his head.

President Obama has ordered the murder of American citizen Anwar al-Awlaki. Like the innocent but tortured Abu Zubayda (innocent at least of any of the crimes he was accused of), Awlaki is now the mastermind terrorist of the universe. And once he’s dead, who’s to say he wasn’t? Who can demand a trail or access to documents? He’ll be dead. See the beauty of it?

If the top mastermind is in Yemen, what the hell are we doing building a quagmire in Afghanistan? Don’t ask. But notice this: we have dramatically increased the use of missile strikes to assassinate in Afghanistan and Pakistan. And we have increased the use of murderous night-time raids to such an extent that we now kill more civilians in that way than we do with drones. They’re the "wrong people," or neighbors who came to help, or family members clinging to loved ones. Sometimes they’re young students with their hands tied behind their backs. Accidents will happen. But no U.S. officials’ future book tours are going to be interrupted by protesters, since there’s no torture involved. Civilization is on the march!

WaPo Wants Immunity for War Crimes

9:10 pm in Uncategorized by David Swanson

By David Swanson

When my friend Jodie Evans recently tried to make a citizen’s arrest of Karl Rove, he declared the Downing Street Minutes to be "a complete fabrication." Of course, this "complete fabrication" was actually the minutes of an official meeting held by then British Prime Minister Tony Blair. Blair and Bush were asked about the document at a White House press conference in June 2005 and did not deny its authenticity. But that document is one of the lesser pieces of evidence that we were lied into the Iraq War. I have laid out the overwhelming case in my book, "Daybreak."

The worst damage done by our continuing to imagine that there’s some sort of debate over whether the war was really based on lies, is that we haven’t been able to focus on something more important. Whether the war was based on lies (as of course it was) or on gospel truth or on the mistakes of a bunch of morons, has absolutely no bearing on the indisputable fact that the war was a criminal act of aggression. Of course, lying to Congress or defrauding Congress is a felony, but it is one of the lesser crimes committed during this particular spree. Attacking another country, whether or not it has weapons of any kind, is the most serious crime on the books. If, as all serious studies suggest, over a million people have been killed by the invasion and occupation of Iraq, then there have been over a million murders. Whether anyone ever lied about anything has no bearing on that fact. The same goes, on a smaller scale thus far, for the U.S. invasion and occupation of Afghanistan.

Following World War II, the victors prosecuted the vanquished for the crime of aggression. The International Military Tribunal at Nuremberg concluded that aggressive war is "not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole." The Chief Prosecutor at Nuremberg was U.S. Supreme Court Justice Robert H. Jackson who made many statements stressing universality and opposing justice only for the currently vanquished nations. Jackson said:

"The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. The Charter of this Tribunal evidences a faith that the law is not only to govern the conduct of little men, but that even rulers are, as Lord Chief Justice Coke put it to King James, ‘under … the law.’ And 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."

Slowly, over the decades since Nuremberg, first with U.S. assistance and later despite U.S. resistance, progress has been made toward establishing international enforcement of the ban on aggressive war to which the world’s nations agreed in the United Nations Charter in 1945. The Rome Statute of the International Criminal Court (ICC), adopted in 1998, places the crime of aggressive war under the court’s jurisdiction. However, the ICC is not to try anyone for the crime until the nations that are parties to the court agree on a definition and details. Those nations, which do not include the United States, will likely iron out those details this year. Whether the court will then find the independence and integrity to prosecute the world’s most powerful empire will remain to be seen.

The Washington Post, which famously dismissed the Downing Street Minutes in 2005 as "old news" but now prints not one word opposing Rove’s "complete fabrication" comment, on Friday published a column by a former Bush-Cheney administration official arguing that the ICC should never prosecute wars of aggression. Doing so, he warns, might make it harder to commit such crimes in the future.


Well, exactly.

Think I’m kidding?

Go read "International Criminal Court doesn’t need power over ‘aggression’" by Stephen G. Rademaker. He was an assistant secretary of state from 2002 to 2006 and now works for a lobbying company that has represented weapons companies and foreign nations in Washington, D.C., including the nation of Serbia. Rademaker begins his free advertisement for international criminality thus:

"The International Criminal Court’s member countries will gather in May in Kampala, Uganda, where they will spend most of their conference considering whether to expand the court’s jurisdiction to include the ‘crime of aggression.’ This is a bad idea on many levels."

Those quotation marks around "crime of aggression" have arisen in the United States since the days of Nazi prosecutions, of course, as Robert Jackson’s rhetoric has faded from memory. Skipping down a little, Rademaker writes:

"Proponents say that previous efforts to prevent war, such as the Kellogg-Briand Pact of 1928 and the U.N. Charter of 1945, failed because they were toothless. Empower this court to prosecute national leaders who order acts of aggression, they contend, and aggression finally will be deterred."

Has anyone made that promise? I haven’t seen it. But we prosecute petty crimes by little people without demanding proof that all such future crimes will be deterred. We take the serious possibility that some of them might be deterred as sufficient grounds to prosecute. And if certain individuals declared that they would not be parties to our body of domestic law, they would not gain immunity. On the contrary, they would be carefully watched and aggressively prosecuted. If, on the international level, the ICC had existed at the time of Nazi Germany, and that nation had chosen not to support the court, the court could still have prosecuted Germans. In fact, we invented a court out of nothing purely for the purpose of prosecuting Germans. Yet Rademaker’s concern is that the world’s leading criminal aggressors might be prosecuted in the future despite choosing not to support the ICC:

"The ICC would be empowered to prosecute the leaders of any country that commits aggression on the territory of a member. In the future, then, although Russia is not a member, its leaders could be prosecuted for acts of aggression against a member, such as Georgia. Likewise, the leaders of Israel (another non-member) could be prosecuted for future operations on the territory of members such as Jordan. For the United States, a non-member, there would be implications any time the use of force was contemplated on the territory of a member. To put this in perspective, consider some of the countries where we have used force in the past two decades: Panama, Bosnia, Serbia, Afghanistan. All are ICC members today."

And Iraq joined in 2005 and then unjoined under U.S. pressure, pressure that will not always remain, pressure to prevent prosecution of a crime for which there is likely to be no statute of limitations. Rademaker is apparently concerned that the United States would have to cease invading countries. He is remarkably honest about the status quo he hopes to preserve:

"Washington is confident that it did not commit aggression in those countries. But Washington has always been the sole judge of whether a particular use of force was justified under international law. If the ICC acquires jurisdiction to prosecute aggression, the court would be responsible for deciding whether it agrees, say, that a Manuel Noriega or Slobodan Milosevic provoked U.S. action against him."

Actually, this would only be the case if, bizarrely, the national parties to the ICC decide to add a loophole for cases of "provocation." The U.N. Charter does not. The ICC would not have to judge whether irrelevant U.S. excuses justified U.S. crimes. The ICC would simply have to prosecute the crimes.

"Should it disagree with the U.S. judgment, the court would be empowered to prosecute the ‘perpetrators.’ Certainly these would include the president, the secretary of defense and other top officials such as the chairman of the Joint Chiefs of Staff. Members of Congress who voted to authorize or fund the operation also would be potential defendants."

This is supposed to sound very different in American ears from how it would sound if written about top Nazi officials. Justice Jackson’s wise point a half century back was that it shouldn’t. It should sound like a resounding warning to members of Congress faced yet again in the coming weeks with the demand to further fund two wars of aggression and various aggressive strikes by unmanned drones. It should even sound like a warning, a moral if not a legal one, to those of us who vote for those congress members and fail to pressure them to obey the law.

"The Obama administration took office eager to ease U.S. hostility toward the ICC. But the potential effects of this proposal have prompted the administration to argue against it. At a minimum, U.S. officials have said, a U.N. Security Council finding that aggression occurred should be required before the ICC could act."

At a minimum? The United States has veto power in the U.N. Security Council and has never been shy about using it. Obama (and Rademaker) are asking for the power to veto the prosecution of U.S. officials. If that’s a minimum request, I’d hate to imagine what the maximum would have been.

"With such pleas apparently falling on deaf ears, the administration reportedly is debating whether to seek some sort of compromise in Kampala. It would be a mistake, however, for Washington to bargain on the margins of the conference. While empowering the ICC to prosecute aggression would be bad for the United States, it would be worse for the court itself."

Ahhh. Yes, of course. Our concern is for the well being of the court, not our own immunity. We wish the court well and want to look out for it. We’d be willing even to "liberate" it, perhaps, if needed.

"The ICC is manifestly incapable of exercising the responsibility and making the judgments that would come with jurisdiction over aggression. If Russia were to attack Georgia again, would the ICC really indict Vladimir Putin and Dmitry Medvedev? Or would it concoct a reason to look the other way? Which would be worse for the court’s credibility and prospects for long-term success?"

The answer to that one is easy. If the court is to gain credibility and succeed, it must be authorized to prosecute the most serious international crimes, and it must do so. And those steps must be taken in that order. If there were no possibility of the second step following the first, then nothing of what Rademaker has written above about dangers to U.S. officials would make any sense. But because there is a possibility of the second step following the first, Rademaker’s warmhearted concern for the court expressed here is a steaming pile of yellowcake.