Internal U.S. Legal Issues on the War on Terror

Activists rally outside the Department of Justice in Washington earlier this month to protest the detention of people at Guantanamo Bay naval base in Cuba. (Photo credit should read Brendan Smialowski / AFP-Getty Images)

The controversy surrounding the U.S. war in Iraq is reaching unprecedented heights as the net closes in on the C.I.A. intelligence leak and a snowball effect sets in. President George W. Bush tried to shake off his opponents by calling people “deeply irresponsible” who think that they can “rewrite the history of how that war began” during his Veteran’s Day speech. Yet his words might have the opposite effect.

It was a bad idea to draw attention to the start of the war. The legal construction in which the decision to go war is couched is among the issues that the president’s opponents are contesting most vehemently. What’s more; with good reason. The intelligence drama has certainly blown new life into the war-fatigued opposition and Bush’s comments are oil on the fire.

Antiwar proponents might actually be on the brink to book some real progress. The polls are tilting in their favor. Some 37 percent of the American population supports the war currently, the lowest rating ever. It’s a telling sign, yet a meager harvest if you look at the developments that should have caused way more substantial damage to the incumbent U.S. administration. The time is ripe for the real questions about the legality of the very legislation that was used to endorse the action — public law 107-243, which was adopted by congress in October 2002.

Nevertheless, even though the recent victories by the antiwar movement are being booked gloriously late into the process, the fact that some efforts are beginning to pay off might just have a cumulative effect and draw attention to the legal framework in earnest. Even if it does not immediately alter the inflated view that the leadership has of the country’s role on the world stage, the war opponents appear to be somewhat successful in driving home this message. The fact that international law might have to be taken into account is beginning to dawn on the conscious level. Besides Bush’s Veterans Day comments, Condoleezza Rice’s office last month was voicing the opinion that the U.S. had not violated international law in any way.

Whether it means that the stage is being prepared for more of the same or that profound introspection is taking place, is impossible to make out because what’s on the agenda is obscured in a thick cloud of fog. But it can be no bad thing that the focus currently is once more on how the country decided to go to war in the first place.

President Bush’s comments will have thousands of people reread the rather weak letter he sent to the House of Representatives in March 2003. The letter was a vague rewording of public law 107-243, “authorizing” the war against Iraq. It was sent almost a year after F.B.I. Director Robert Mueller reported that neither his organization nor the C.I.A. had found evidence of a direct link between Iraq and any of the 9/11 hijackers. The U.S. leadership was nevertheless implying that such a link was there, relying on information from Czech intelligence officials, which was dodgy from the word go even though people were saying that Mohammad Atta met with Iraqi intelligence in Prague in April 2001. The letter clearly refers to this unsubstantiated claim:

“Dear Mr. Speaker: (Dear Mr. President:)

“Consistent with section 3(b) of the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243), and based on information available to me, including that in the enclosed document, I determine that:

“(1) reliance by the United States on further diplomatic and other peaceful means alone will neither (A) adequately protect the national security of the United States against the continuing threat posed by Iraq nor (B) likely lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

“(2) acting pursuant to the Constitution and Public Law 107-243 is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”

See why it was a mistake to refer to the “beginning of the war?” People are all the more enthusiastic to research more of the legal aspects. And the reasons behind the opinion that there was no legal basis for the war are by far not exhausted. As was shown in last week’s proposed resolution by Congress member Maurice Hinchey. He wants permission for the U.S. people and congress to find out exactly how what have become known as the “Infamous 16 Words” in a Bush speech about Iraq seeking uranium from Africa made it into the speech. The resolution is a major example of how strenuous the process is that all the allegations of misleading statements, outright lies and corruption has to go through it finally lands into a formal investigation stage. And captures the people’s interest. Hinchey proposes further investigation into why the erroneous Africa information was engineered into the speech in a way that pretty much showed that the U.S. administration knew what it was doing when it was misleading the people. He has requested the White House to present Congress with all the drafts and documents related to the crafting of that speech. Furthermore, the resolution also calls for the public to be able to have access to another speech in October 2002 that the president made in which he discussed a possible mushroom cloud from an Iraqi nuclear weapon. This speech is believed to have been exceptionally misleading because the impression was created that Iraq was capable to create those scary nuclear mushroom clouds, but it’s highly likely that by this time the administration was well aware that the Iraq-Africa link was totally nonmaterial. Who knows, a second edition of the leaked Downing Street memo is going to thrill us all. But that’s wishful thinking.

The resolution couldn’t have come at a better time. It is launched as a debate is raging about the Democrats accusations that the White House has been manipulating intelligence. Last week, Lewis “Scooter” Libby, a top aide to Vice President Dick Cheney was indicted, having been accused of obstructing justice, perjury and lying after a two-year investigation into the leak of covert C.I.A. operative Valerie Plame’s identity.

Top politicians supporting the war are now beginning to drop out and instead condemn the war. In a column for The Washington Post, former Sen. John Edwards, the Democratic nominee for vice president last time around publicly stated he regretted having voted to give Bush the authority to go to war and called the intelligence on which he made that decision “deeply flawed and, in some cases, manipulated to fit a political agenda. The information the American people were hearing from the president — and that I was being given by our intelligence community — wasn’t the whole story. Had I known this at the time, I never would have voted for this war.”

One could argue that all this is easily said in retrospect and that’s what the administration is banking on when it admits that it’s been totally wrong about the weapons of mass destruction. In all fairness, had the troops found sizeable arsenals of weapons the story would have been slightly different now. The war would have felt justified. Yet it would still have taken place within the legal framework that relies on nothing less than an interpretation of the U.S. constitution, the U.N. charter and international law that cannot be defined any other way than as imperialist and fascist.

John Bolton illustrates this very precisely when he outlines how in U.S. politicians’ minds a political reality takes precedence over legal reality. In an article entitled “Is International Law really Law?” on the Web site of the Federalist Society, he writes, “Treaties are ‘law’ only for U.S. domestic purposes. In their international operation, treaties are simply ‘political,’ and not legally binding. Another major source of confusion about the effect of U.S. treaty obligations is what it means to say that they constitute, in the Constitution’s phrase, ‘the supreme Law of the Land.’ In normal American usage, the word ‘law’ denotes a binding obligation. In the context of U.N. assessments, the argument is frequently made that these assessments are the result of a treaty obligation, hence are the ‘law of the land,’ and hence are ‘legally binding’ on Congress to pay in full and in a timely fashion. This line of argument is flatly incorrect. To the extent that adherence to the U.N. Charter carries any obligation, it is political in nature, and subject to all of the possibilities for modification or abrogation of any political arrangement. That renders it fundamentally different from a treaty that affects the domestic relationships between the government and its citizens, or between private citizens, as the Supreme Court has repeatedly recognized.”

In other words, the U.S. government has carte blanche to do as it pleases under all circumstances, so long as they can claim it’s acting in accordance with the constitution. Whether it is invading other countries, invading people’s private lives or keeping terrorist suspects indefinitely without any form of trial. The human rights aspect of this is frankly worrisome and is beginning to have a considerable backlash on the domestic U.S. situation itself. The worry that many have over this has led to some concerted action throughout the country. A network consisting of some 50 institutions and organizations nationwide called the U.S. Human Rights Network informs people about the effects that this kind of thinking has on society. The organizations, including American Civil Liberties Union (A.C.L.U.) as well as the Center for Economic and Social Rights (C.E.S.R.) refer to this “U.S. exceptionalism” as the main reason for the disregard for human rights within the U.S. since the war took off.

The organization’s Web site mentions an “alarming rate of human rights violations in the U.S.,” singling out various instances during which the U.S. has opted to withdraw from international agreements, pacts and treaties concerning various aspects of human rights, including outright racism and gender discrimination issues. These likely would have also become contested even if no war situation had prevailed, but the excesses are more blatantly outlined and form a live link with the rationale that led to the risky unilateral action against Iraq, i.e. the idea that the U.S. legislation is unquestionably the last point of call and not international law.

In any normal circumstance, one would be inclined to be thankful almost if a political clan proffered their agenda this way, yet somehow this logic has almost disappeared in the U.S., likely at the same pace as with which the emulation of international principles into U.S. law has taken place.

The Human Rights Network aims to highlight those instances where the incumbent administration is unduly uncaring and create a tangible opposition to the cases in which this manifests itself. The U.S. government’s stance that international law does not in any circumstance rise above the U.S. constitution is of course vehemently contested by the network.

The U.S. refusal to ratify the Rome Statute is somewhat central to the legal quandary that the U.S. administration appears to attend to. If it ratified this, the U.S. would be a fully-fledged participant to the International Criminal Court, which has the support of 120 countries. It won’t. So there is no basis on which to prosecute the government for war crimes.

One expert says that this does not mean that the U.S. also renounces the Vienna Convention on the Law of Treaties immediately as well. But it might do this just as easily. The trouble with the U.S. and international conventions like this is that the administration simply treats international law as if it was domestic law, and alters it at leisure where it sees fit via amendments. The administration’s current stance on the Vienna Convention is not entirely clear, but according to some experts, it considers it binding. Know why? The Convention represents established customary law … All international treaty negotiations are somewhat pointless when the U.S. is concerned because there’s always the standard reservation that it will assume no obligations that are in violation of the U.S. Constitution.

Back in 2003, John Bolton confused people saying that the Administration’s announcement would mean that the United States “has no legal obligations arising from its signature.” One expert, Curtis Bradley, a professor of Law and the Hunton & Williams Research Professor at the University of Virginia says that these comments were more or less an implicit reference to the object and purpose requirement in Article 18 of the Vienna Convention. “Of course, it is open to question whether Mr. Bolton’s statement reflected an acceptance of Article 18 or merely an abundance of caution on the part of the Administration. Under either interpretation, however, the statement was not a renunciation of the Vienna Convention,” he writes on

So whatever the exact stance of the policymakers on any piece of international legislation, one can simply skip it and go straight to the Constitution’s stipulations. Some violations that could have real consequences include the Presidential powers and Congress’ deferral of its rights and it is likely that the last word has not been said about this issue. Perhaps the people that have been arguing all along that the war was unconstitutional are finally beginning to have a point — for real. It is likely that a renewed focus on the ultimate weak spot of the Bush administration will be all the more damaging if it gets this far. Jacob Hornberger at the Future of Freedom Foundation says that the Supreme Court, which is the final arbiter here, doesn’t allow any branch of the federal government to delegate its constitutional powers to another branch of government.

Which is what happened in public law 107-243. The State Department’s real weakness in coming months will likely transpire to be that only Congress, not the president, is authorized to declare war. The court will assert that without an official declaration of war, the president could not have lawfully waged war on another nation. Ouch. What’s more, the often heard view of war opponents like Hinchey and John Conyers, who have also been creating commotion about the leaked Downing Street memo, that had the declaration-of-war requirement been adhered to in the first place, Congress might well have discovered in the process that the president’s W.M.D. claims were defective will likely gain an awful lot of potency. “The Congress might also have concluded that invading a sovereign and independent country for the purpose of ‘spreading democracy’”— a war in which tens of thousands of innocent people would be killed and maimed — could not be justified under moral principles,” says Hornberger. “By waging war on Iraq without the constitutionally required congressional declaration of war, the president violated the Constitution. Some people pooh-pooh the violation, perceiving the Constitution as simply a technical document that can be violated whenever the president feels that ‘national security’ — or even the welfare of foreigners — necessitates it. Some also make the claim that when Congress delegated its power to declare war on Iraq to the president (on the eve of the 2002 congressional elections), that delegation served as an adequate substitute for an actual declaration of war on Iraq. They are wrong. The Constitution is the supreme law of the land that we the people of the United States have imposed on our federal officials. Like it or not, U.S. officials are supposed to comply with its restrictions on power,” according to Hornberger.

So to sum everything up once more; besides the total absence of W.M.D. on the ground in Iraq, the way the war was started can be safely termed the most controversial aspect of this war. Most notably because it represented a unilateral action by the U.S. which not only risked its isolation on the world stage, got many innocent people killed and created enormous renewed security risks to the homeland.

We ought to be bracing ourselves for heightened drama in the months to follow.

Angelique van Engelen is a freelance reporter based in Amsterdam. She has been a foreign correspondent in the Middle East in the 1990’s. She is available for freelance writing assignments.

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