Det danske Fredsakademi

Kronologi over fredssagen og international politik 19. Oktober 2005 / Time Line October 19, 2005

18. Oktober 2005, 20. Oktober 2005

10/19/2005
Berkeley Cancels Veteran's Day Event
http://www.nbc11.com/news/5119991/
A Veterans Day commemorative has been canceled after disagreements over whether an anti-war activist should speak at the event.
Bill Mitchell, a co-founder of Gold Star Families for Peace along with "Peace Mom" Cindy Sheehan, was scheduled to speak. But some veterans objected, saying the day was supposed to be a nonpartisan memorial, and the local Disabled American Veterans chapter threatened to pull out.
"They have the other 364 days and 23 hours to make their political point," said Edwin Harper, adjutant of the chapter.
Event chairman "Country" Joe McDonald, the songwriter known for the anti-war anthem "I-Feel-Like-I'm-Fixin'-to-Die Rag" and a U.S. Navy veteran, said not allowing Mitchell to speak was censorship.

10/19/2005
Legal Nonsense: The War on Terror and its Grave : Implications for National and International Law
An Interview with Prof. Francis Boyle, J.D., Ph.D.
In yOUR RECEnt interview with Bill O'Reilly, he said that we had the right to roll into Afghanistan essentially (and simply) because bin Laden is a bad guy, and the Afghans were not cooperating. Do you see our refusal to make a traditional declaration of war against Afghanistan as a matter of convenience? Does it get us off the hook, morally and legally, from having to obey the normal rules of how wars are conducted and declared between one state and another?

FB: I think they had already planned to go to war against Afghanistan beforehand, and it is abundantly clear from the so-called offer made by President Bush to the Afghan government that it was not really made in good faith. They were looking for a pretext, they got it, and they went to war.

LID: Do you think they would have been caught off guard if Afghanistan had given way on all their demands?

FB: It was reported on CounterPunch.org that they did, in fact, offer to turn over bin Laden, but this offer was never followed up. It is clear that bin Laden was a pretext, and 9/11 was a pretext. They needed a pretext to go to war against Afghanistan and Iraq, and they created the conditions to make it possible. It also seems to me that they knew the 9/11 attacks were going to happen, but that's another story.

LID: Indeed. There's a lot about the mainstream story of 9/11 that doesn't make sense, but that is, as you say, another story. What struck us, as all this unfolded, was how non-traditional our approach to the whole thing was. They could have made an argument to make a real declaration of war. Article I.8 of the Constitution gives Congress the power to "constitute Tribunals inferior to the Supreme Court . . . define and punish . . . Offenses against the Law of Nations . . . and make Rules concerning Captures on Land and Water." But on November 13, 2001, President Bush issued a "Military Order" granting himself the power to detain and try by "military commission" - for "violations of the laws of war and other applicable laws" - anyone he determines is or was in al- Qaeda, "engaged in, aided or abetted, or conspired to commit, [undefined] acts of international terrorism," or "knowingly harbored one or more" individuals in these categories. As the Order was developed, the usual suspects (David Addington, vice president's counsel; John Yoo, Justice Department lawyer; Timothy Flanigan, former deputy White House counsel) overruled military, State, and Justice Department experts - who wanted criminal or courts-martial proceedings for 9/11 and "war on terror" (GWOT) suspects - because GWOT intelligence might be hard to get if defense lawyers and due-process got in the way ("After Terror, a Secret Rewriting of Military Law," New York Times, October 24, 2004). The legality of so removing individuals from the criminal or military justice system was challenged by attorneys on behalf of Salim Hamdan. D. C. District Court Judge James Robertson stopped the commissions in November 2004 (see pp. 480-2). The government appealed and pressed ahead, an insider blaming Cheney for its intransigence (New York Times, March 27, 2005: "Cheney is still driving a lot of this"). Meanwhile, some of the commission's defense lawyers and even military prosecutors complained of its "marginal" cases and "half-assed effort" (AFP, August 1, 2005). But on July 15 - in spite of 17 "friend of the court" briefs on Hamdan's side from retired JAGs, generals, and admirals; a Constitutional historian at the Library of Congress; and numerous international-, national-security-, and military-law academics and lawyers - the government won a reversal from a D. C. Appeals Court three-judge panel; it argued that the "Geneva Convention cannot be judicially enforced." One of the three judges met the President for an interview the day before, and on July 20 he was nominated to the Supreme Court. It might be coincidental that John Roberts was tapped for the Court five days after he joined the decision that the President's "construction and application of treaty provisions is entitled to great weight." Alternatively, Bruce Shapiro, writing in The Nation (July 20, 2005), suggests that Roberts's interview with the President was his oral exam, and the Hamdan decision was the "essay question." Evidently he passed. against Afghanistan, but it seems to us that this approach was intentionally avoided.

FB: I think Bush did seek a declaration along the lines of what Roosevelt got from Congress on December 8, 1941. The reason he sought it was that it would have made him a constitutional dictator. Fortunately, Congress did not give Bush a formal declaration of war, but he did try. Had he gotten one all the provisions of the U.S. Code would have applied, which give the President sweeping powers during a state of declared war.

LID: So you say "fortunately" because of the powers of the U.S. Code that would have been granted to the President?

FB: The book Presidential Power by Arthur Miller explains how, with a formal declaration of war by Congress, as happened in December 1941 and also in WWI, the President essentially becomes a constitutional dictator. He can pretty much do what he wants.

LID: That's interesting. Although there are negative ramifications for how the prisoners are treated in an undeclared war, it sounds like one of the "benefits" has been that at least we avoided having a dictatorship on our hands in America - or at least more of one than we currently suffer.

FB: It could have been a lot worse. Senator Byrd pointed out that the authorization that the President did get was not a formal declaration of war, but rather a limited authorization and subject to all the requirements of the War Powers resolution. He was not given a blank check.

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

FB: Ha! That's a good one. The problem is that the President does not care. He believes clearly that he is above the Constitution of the United States. He has made it clear that he is not limited by anyone. But the fact remains that it is up to Congress to enforce its own war powers. The Constitution, Article I, Section 8, gives the power to Congress to go to war, not to the President. It is up to Congress to enforce this in the first instance, and ultimately for the American people to enforce this in default by Congress. This is why I started my campaign for impeachment. I called Ramsey Clark to discuss starting an impeachment campaign against the President over the war in Afghanistan. He felt that the public support was not there at that time, because the President had been very successful in brainwashing the American people into supporting what he was doing. But, in August 2002 Cheney began making his speeches against Iraq and the situation and atmosphere began to change. It appeared to be the same scenario they had pursued in Gulf War I under Bush Senior.

LID: In following your impeachment efforts, we saw that you are waiting on an equivalent to Congressman Henry B. Gonzalez (D-Tex.), who - I think many Americans don't know this - worked with you to attempt an impeachment of Bush 41 over the first Gulf War.

FB: We are pressuring Congress. We need one member of Congress to propose a bill. Congressman Conyers did have a discussion on March 13, 2003, with 40 or 50 of his top advisors. He called Ramsey and me, inviting us to state the case for putting in immediate bills of impeachment against Bush, Cheney, Rumsfeld, and Ashcroft to try to head off the war. We did the best we could. The merits were debated quite extensively. The people there did not really disagree with us on the merits of impeachment but rather on the political practicality. John Podesta was there on behalf of the Democratic National Committee arguing that proposing a bill of impeachment might hurt the Democratic candidate in 2004. That is where we stand now. I think that advice was wrong. But I did not argue the point. I just argued the constitutional merits of impeachment. No one really disagreed with that. They were merely concerned with how it would play out in the November 2004 elections. Of course the Democrats were clobbered, but Ramsey and I agreed before the election to push forward, and that is what we are doing.

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

FB: Any one of them could do it. It's up to the people to pressure their representatives to put one in. But with the offensive, the destruction, and the killing in Fallujah - this is a crime against humanity. We have already lost some 1800 military people thanks to Bush, Cheney, Rumsfeld, and others. It seems to me that we owe it to those fallen troops to file bills of impeachment, and to make it clear that we are going to try to hold these war criminals to account not only for the dead U.S. soldiers, but also for the more than 100,000 dead Iraqis. If we do not act, this war is going to get well and truly out of control. General Shinseki publicly testified that we need several hundred thousand troops to occupy Iraq. He has been proven right. The troops there are sitting ducks, and what we need to do is get our troops out of harms way.

LID: On another subject - but speaking of resisting war criminals and their crimes - we understand that you were able to act as counsel for 28- year-old former Staff Sgt. Camilo Mejia, who was sentenced on May 21, 2004, to one year in prison for refusing to return to fight in Iraq.

FB: That's right. He was the first resister. He saw everything, and was even asked to participate in the torture being conducted. He came back home on leave and after much soul-searching realized he could not continue in good conscience to participate in an illegal war. He filed for conscientious objector status as a result. He was court marshaled for desertion!

Though he was the first to do so, he is unlikely to be the last. The Pentagon decided to make an example of him, to make a point to the rest of the troops who are beginning to get very restless. He is, of course, a hero, the first Amnesty-International-declared prisoner of conscience in America linked to this war.

LID: A couple of thoughts on the legal background. We came across a comment made by Dr. Elizabeth Wilmshurst in England, who as you know resigned her post as deputy legal adviser to the Foreign & Commonwealth Office in the U.K. over the illegality of the Iraq war. She said, "lawyers hate the phrase 'war on terror.'" Do you share that sentiment?

FB: If you see my book, Destroying World Order, there is a whole chapter entitled "Preserving the Rule of Law in the War on International Terrorism." It is mere propaganda, a slogan that the Bush people have come up with to justify aggression, their own terrorism, war crimes, and torture elsewhere round the world. There is no generally accepted definition of terrorism. In practical terms, anyone who opposes what the U.S. does becomes "a terrorist."

The USSR did much the same thing after they invaded Afghanistan. Powerful governments as a rule call their opponents "terrorist," thereby seeking some kind of "moral high ground."

LID: For the Soviets, Osama bin Laden would have been a "terrorist extraordinaire" when he was involved in resisting their efforts to take over Afghanistan. But now the shoe is on the other foot.

FB: Let's be clear about all this. Bin Laden is our guy. The Carter administration, as well as the Reagan people, worked hand-in-glove with bin Laden and the CIA. That's where he and al-Qaeda came from! As long as he was fighting the Soviet Union, he was "a freedom fighter," part of the Mujahideen. But once these Islamic warriors turned against the U.S. and its view of the world - assuming that they ever believed it - they became "terrorists" overnight. These terms are devoid of any substance. They are designed, quite simply, to squash dissent. We used to throw around the term "Communist" a lot in the old days, even when the accused were very far from being such. It was a convenient way of ridding oneself of problems through the use of the smear technique.

LID: You mentioned that one of the real problems making this war on terror so vague, so sweeping and so meaningless - to the point of allowing it to encompass just about anything the Bushites want it to - is that all the normal protections afforded to people on the opposite side of an armed force can be twisted, manipulated, or just dispensed with.

FB: It's dehumanizing to Arabs, Blacks, Muslims, Asians, Coloreds. We cannot forget the racist element of the war here, very much like Vietnam. In Vietnam, we had to dehumanize them in order to kill them - so we called them "gooks." Now instead of looking at these people as human beings, with grievances and a cause that they have not made known to our people but might like to, we call them "terrorists." We dehumanize them in order to make it easier for the American people to do terrible things to them that we otherwise would not be doing in all likelihood. I doubt seriously that we would be treating white Christians or white Jews this way. These terrorists, as we call them, are throwaway people.

LID: Of course in Serbia and Kosovo, it was the other way around. It was white Christians who were being attacked in another illegal and unjust war for their alleged crimes against Muslims, never mind that the faction that we supported were real terrorists, i.e., the KLA. In that light it simply seems like the terrorists are always whomever we've chosen to oppose in whatever the conflict de jour is. Now speaking of Kosovo - just to digress for a second - our sense is that the legal background for the assault on Serbia was just as specious as that used in the war against Iraq.

FB: I agree with you. In fact, in that same book mentioned above there is a chapter on humanitarian intervention in which I also condemn the arguments used to justify the Serbia intervention.

LID: Now there may have been some argument that the Serbia bombing was a "humanitarian effort" to protect Muslims and Kosovars, though we would agree with you that it was an entirely bogus pretext. But that shows, doesn't it, that we will pick up whatever flag is useful - "humanitarian aid," "WMDs," "terrorism" - to accomplish our other aims?

FB: All of these wars, Afghanistan and Iraq - and our less well-known military interventions elsewhere of late - have one thing in common: oil and natural gas. That is what all this "imperial hubris" is about. We are running out of these things, things so vital to our economy. The Pentagon knows it, and so they are scrambling to get whatever oil and natural gas they can find - whether it's in Central Asia, Afghanistan, Iraq, Columbia, Jibouti, or the Suez Canal. They are now planning military intervention on the west coast of Africa because oil and gas have been found there. If you look at all they are doing - not what they are saying, but what they are doing - they are deploying forces all over the world where there is oil and gas to be had. There is no deployment, however urgent the situation, where there is no oil and gas.

LID: Let's give some thought, if we may, to the Guantánamo detainees. One thing that has struck us as problematic - and it goes all the way back to 9/11 - is that, in the context of the "war on terror," Uncle Sam is making an informal declaration of war against irregular forces all over the globe. Anyone with a gun who does not sympathize with the American way of life, or the politics of the government, is automatically deemed "an enemy." Correct us if we are wrong, but under the normal process of declaring war, the opposing sides' troops are recognized as lawful combatants who are guaranteed certain rights. Here, where we are picking a fight with all the irregular forces of the world, they are immediately deprived of their rights - or so it seems to us. It appears that much of the Geneva Conventions have been set aside and that POW rights have effectively been ignored and nulli- fied. If this is so, it seems to be the height of hypocrisy.

FB: It is most definitely the case. What that is going to do is react to the disadvantage of our own men and women in the armed forces, because what we have done is to send a message that we don't care about the Geneva Convention - and that can only expose our armed forces to grave harm and danger. Battle is bad enough, but if they get wounded or captured the only protection our people have is the Geneva Convention. If we are now saying we just don't care about any of this in Afghanistan, Iraq, Gitmo, then there is no kind of protection for our armed forces. Even Secretary of State Powell pointed this out in a memo to Bush. I regret to say you will likely see outright savagery being inflicted on our armed forces - and certainly to the extent that we are inflicting it on our opponents. The U.S. Marine filmed shooting dead a wounded resistance fighter in a mosque in Fallujah has set a dangerous precedent. It says, in effect, that if you are an Iraqi fighting the occupation and you are caught, you are likely to get your head blown off. What hope, then, is there for wounded or captured American troops in Iraqi hands?

LID: A lot of media coverage has been given to the tribunals in Gitmo, variously termed "Combatant Status Review Tribunals" and "Administrative Review Boards" - not to mention the infamous military commissions established under the President's Military Order of November 13, 2001. The heated discussion is all about whether or not these tribunals are sufficient to provide for the rights of the detainees. Our sense is that they don't come close, because of clear obligations on the part of those doing the detaining (i.e., us) to provide for a Geneva Article 5 tribunal, which passes a judgment on whether people should be held as POWs or not - and until those tribunals are conducted, the detainees are supposed to be presumed to be POWs and afforded POW rights. Something our government has conspicuously not done.

FB: These kangaroo courts - I'm talking "military commissions" now - were opposed by the professional military lawyers in the Judge Advocate General's (JAG) office at the Pentagon. They were opposed by the professional international lawyers in the State Department. The only lawyers who supported these kangaroo courts were right wing, war-mongering lawyers that inhabited the office of White House counsel Alberto Gonzales - now attorney general - and John Ashcroft at the Department of "Injustice." That is to say, none of the professionals who know anything at all about human rights or the laws of war. As I said, even the professional military lawyers were against these courts. As you know, in late November 2004 the federal district judge in Washington, D.C., struck the whole thing down, though in July 2005 it was rehabilitated by an appeals court for the D.C. circuit in a frankly ridiculous decision. Though in the district case - Hamdan v. Rumsfeld - the judge applies the law as it should have been applied in the first place.1

1. See the discussion of military commissions and related tribunals in chapter 29 and its postscripts, on pp. 443-489 of the present volume.-Ed.

LID: What are the details of these recent decisions?

FB: The first decision simply struck down the kangaroo court procedure down at Gitmo. That decision was then overturned on the basis that the Geneva Conventions are not "self-executing," though honestly, what good is a right if it cannot be protected in the courts? When the Department of Justice first made the appeal, they were probably hopeful that they'd get it to the Supreme Court, which the Bushites control; now it looks like that might happen, as the attorneys for Hamdan have themselves appealed. Do remember, by the way, that it was the five Republican justices that gave the presidency to Bush Jr. in 2000 to begin with, and started this whole problem. After that happened the Democrats were derelict in their duty by not putting in Bills of Impeachment against those five Supreme Court Justices. They rolled over and played dead, just as Gore and Kerry have done. What good are they?

1. See the discussion of military commissions and related tribunals in chapter 29 and its postscripts, on pp. 443-489 of the present volume.-Ed. LID: On a side (but related) note, one of the pretexts we have heard that was supposed to have justified our aggression in Afghanistan is the phrase, "Afghanistan is a failed state." It appears everywhere in the political literature on the subject and it seems to say that, as a consequence, the norms of international law between one sovereign State and another simply don't apply. Would you say that is gibberish?

1. See the discussion of military commissions and related tribunals in chapter 29 and its postscripts, on pp. 443-489 of the present volume.-Ed. FB: Yes, it means nothing. It's just a category, a description, pulled out of thin air and developed.

1. See the discussion of military commissions and related tribunals in chapter 29 and its postscripts, on pp. 443-489 of the present volume.-Ed. LID: The Afghans don't see things the way we do, so they can be dismissed as a nonentity, right?

1. See the discussion of military commissions and related tribunals in chapter 29 and its postscripts, on pp. 443-489 of the present volume.-Ed. FB: Yes. In fact we were actually negotiating with the Taliban government in Afghanistan during the Clinton administration about the construction of a huge oil pipeline through their territory, and it appears that Clinton was about to establish diplomatic relations with them.

1. See the discussion of military commissions and related tribunals in chapter 29 and its postscripts, on pp. 443-489 of the present volume.-Ed. LID: So, Afghanistan being a "failed state" did not impede that process!

1. See the discussion of military commissions and related tribunals in chapter 29 and its postscripts, on pp. 443-489 of the present volume.-Ed. FB: Not at all. All we cared about was getting into that Central Asian oil field and raking in big money.

1. See the discussion of military commissions and related tribunals in chapter 29 and its postscripts, on pp. 443-489 of the present volume.-Ed. LID: On the legal question of one sovereign state versus another, many commentators and public figures - Robin Cook, Kofi Annan, Elizabeth Wilmshurst, and yourself to name but a few - have come out in black and white saying the aggression against Iraq was illegal. This is also the opinion of some hundreds of international lawyers around the globe that have made statements on various occasions.1 Even Richard Perle conceded that international law would have "gotten in the way" of the Iraq invasion, had it been obeyed. What this means, at least from our point of view, is that we deposed by force of arms a legitimate government, recognized as such throughout the world, and that consequently the government that was in place is still the legitimate government at least de jure if not de facto. Do you agree?

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

FB: Yes. Under the laws of war as codified in U.S. Army Field Manual 2710, we did indeed depose the legitimate government of Iraq. The U.S. and Britain are - still - what is known as the "belligerent occupants" of Iraq. The so-called Allawi government was nothing more than a puppet government. But the laws of war do not prohibit us from establishing a puppet government if that is what we want as occupiers. Again, under the above law, we are responsible for the behavior of that puppet government. We have displaced the legitimate government of Iraq and have imposed a puppet government - twice. What happens now depends on if and when the belligerent occupation by the U.S. and U.K. ends, and if the Iraqi people themselves have an opportunity to reestablish their own government. It's important to keep this in mind, despite all the talk about the transfer of sovereignty, democracy, and elections. That's all nonsense. The sovereignty resides in the hands of the Iraqi people. They never lost it in the first place. It was never ours to transfer. A belligerent occupant does not obtain sovereignty. Sovereignty remains with people and with the state that is occupied. We never had anything to transfer to Allawi. He remained at all times the puppet head of a puppet government. The January 2005 elections did nothing but establish another puppet government, no matter who did or did not participate, and in what numbers.

LID: And any so-called trial of former members of the legitimate government conducted under the auspices of this puppet government - particularly if the occupying forces are still there - is very problematic as well.

FB: They are simply more kangaroo court proceedings. Clearly there are procedures. Saddam is a prisoner of war. Prisoners of war under the Third Geneva Convention can be tried for the commission of war crimes, but they are subject to all the protections of the third Geneva Convention. In this situation Saddam would be entitled to a trial in the form of a courtmartial under the Uniform Code of Military Justice. Clearly he will not get that. He will get a kangaroo summary procedure and then they will take him out and kill him. Several of the so-called Iraqi human rights people involved in setting up these kangaroo courts have already said as much. Saddam will not get a fair trial. Of that there can be very little doubt.

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

FB: Before the start of the war against Iraq, President Putin of Russia and Walter Cronkite both publicly stated that if Bush went to war against Iraq, he could set off a third world war - and that is the situation we find ourselves in now. This is an extremely volatile area of the world. Two-thirds of the world's energy resources are there - the very thing that we are going after. That that is what we are doing is very clear to Russia, Europe, China, India, Pakistan. It's very clear we are going all out for the oil and the gas in order to control the future of the world's economy. The longer we, the American people, let this go on, the more we risk a wider regional war that could easily degenerate into a world war.

LID: Rumsfeld's favorite words for the Iraqi resistance is "extremist," "terrorist," etc. We assume there is no question that the Iraqis who are defending themselves from occupation have every legitimate right to do so, regardless of what outside influence there may or may not be in Iraq?

FB: This is clearly an illegal and criminal war being waged by Bush Jr. and Tony Blair. So, of course, the Iraqi people have a right to resist an illegal, criminal war under international law. That's the danger in all of this. Hitler got away with marching into Austria and Czechoslovakia, but then he went into Poland and that led to the start of WWII. Here we have Bush who has waged two wars now, in Afghanistan and Iraq. He is now threatening Syria, Iran, and North Korea. We have a very similar situation here. Either the current situation is brought under control, or they launch one more aggressive war. That could start a chain reaction leading to a regional war - and perhaps to another world war.

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

FB: I think we have to, and that is why Ramsey and I are pressing ahead with impeachment. Remember, and this is very important, Nixon won a landslide victory against McGovern in 1972. Massachusetts was against him, but the rest of the country supported him. Yet he and Agnew were out of office less than two years later. So, that is the scenario that I think we must pursue with respect to Messrs. Bush and Cheney.

10/19/2005
CONTRACTS from the United States Department of Defense
Boeing, Anaheim, Calif., is being awarded a $10,385,693 cost plus fixed fee contract to provide for research and development under broad agency announcement VS-05-01, technical area 14 entitled "Advanced Strategic Guidance Instrument Testing" for the advanced ballistic missile technologies program. At this time, $10,385,693 has been obligated. This work will be complete March 2010. Solicitations began February 2005 and one proposal was received. Negotiations were complete October 2005. The Air Force Research Laboratory, Wright-Patterson Air Force Base, Ohio, is the contracting activity (FA9453-05-C-0246).

10/19/2005

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