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Is Bush's War Illegal? The "Blowhard Zone" Let Us Count the Ways
Tuesday, September 17, 2002
By Francis Boyle
CounterPunch



Francis A. Boyle, Professor of Law, University of Illinois, is author of Foundations of World Order, Duke University Press, and The Criminality of Nuclear Deterrence, Clarity Press.



No War Against Iraq!



For example, on Iraq. Right now they cannot use that War Powers Resolution to justify a war against Iraq. There is no evidence that Iraq was involved in the events on September 11. So they are fishing around for some other justification to go to war with Iraq. They have come up now with this doctrine of preemptive attack. Quite interesting that argument, doctrine was rejected by the Nuremberg Tribunal when the lawyers for the Nazi defendants made it at Nuremberg. They rejected any doctrine of preemptive attack.



On September 13, 2001 I got a call from FOX News asking me to go on the O'Reilly Factor program that night, two days after the tragic events of September 11, to debate O'Reilly on War v. Peace. It is pretty clear where I stood and where he stood. I had been on this program before. I knew what I was getting in to. But I felt it would be important for one lawyer to get up there in front of a national audience and argue against a war and for the application of domestic and international law enforcement, international procedures, and constitutional protections, which I did.

Unfortunately, O'Reilly has the highest ranked TV news program in the country. I thought someone should be on there on September 13. I think most people agree that I beat O'Reilly. By the end of the show he was agreeing with me. But the next night he was saying that we should bomb five different Arab countries and kill all their people. But let me review for you briefly some of the international law arguments that I have been making almost full time since September 13. They are set forth in the introduction in my new book, The Criminality of Nuclear Deterrence.

Terrorism v. War

First, right after September 11 President Bush called these attacks an act of terrorism, which they were under the United States domestic law definition at that time. However, there is no generally accepted definition of an act of terrorism under international law, for reasons I explain in my book. Soon thereafter however and apparently after consultations with Secretary of State Powell, he proceeded to call these an act of war, ratcheting up the rhetoric and the legal and constitutional issues at stake here. They were not an act of war as traditionally defined. An act of war is a military attack by one state against another state. There is so far no evidence produced that the state of Afghanistan, at the time, either attacked the United States or authorized or approved such an attack. Indeed, just recently FBI Director Mueller and the deputy director of the CIA publically admitted that they have found no evidence in Afghanistan linked to the September 11 attacks. If you believe the government's account of what happened, which I think is highly questionable, 15 of these 19 people alleged to have committed these attacks were from Saudi Arabia and yet we went to war against Afghanistan. It does not really add up in my opinion.

But in any event this was not an act of war. Clearly these were acts of terrorism as defined by United States domestic law at the time, but not an act of war. Normally terrorism is dealt with as a matter of international and domestic law enforcement. Indeed there was a treaty directly on point at that time, the Montreal Sabotage Convention to which both the United States and Afghanistan were parties. It has an entire regime to deal with all issues in dispute here, including access to the International Court of Justice to resolve international disputes arising under the Treaty such as the extradition of Bin Laden. The Bush administration completely ignored this treaty, jettisoned it, set it aside, never even mentioned it. They paid no attention to this treaty or any of the other 12 international treaties dealing with acts of terrorism that could have been applied to handle this manner in a peaceful, lawful way.

* War of Aggression Against Afghanistan
* No Declaration of War
* Bush, Sr. v. Bush, Jr.
* No War Against Iraq!
* Nazi Self-Defense
* Kangaroo Courts
* The Federalist Society Cabal
* Jeopardizing U.S. Armed Forces
* U.S. Police State
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Dan