On Sunday, the News Tribune (Tacoma, WA) published an article by Prof. Seth Weinberger of the University of Puget Sound arguing in favor of the legality of the Iraq war.  --  Since the News Tribune showed little interest in the issue in January, when Tacoma was the site of a “Citizens’ Hearing on the Legality of U.S. Actions in Iraq,” the publication of this essay is a welcome development.  --  In a refutation, UFFPC’s Mark Jensen takes issue with Weinberger’s views.[1]  -- Prof. Weinberger's essay, entitled “Tragic Isn’t the Same as Illegal,” is appended.[2] ...


1.

THE WAR IS ILLEGAL
By Mark Jensen

United for Peace of Pierce County (WA)
May 6, 2007

The argument that the Iraq war is illegal is making headway.

This can be deduced from the fact that the News Tribune (Tacoma, WA), after ignoring the question for nearly five years, thought fit on Sunday, May 6, 2007, to reprint an essay offering legal arguments that purport to establish the war’s legality.

Not that Prof. Seth Weinberger of the University of Puget Sound is inclined to defend the war per se. He acknowledges that the war may be “ill-conceived and unnecessary,” “stupid and tragic.” “But stupid ain’t illegal,” Prof. Weinberger writes.

Prof. Weinberger’s argument that the war is legal under U.S. law amounts to a single sentence: “Congress authorized the war when it passed the Authorization for the Use of Military Force on Oct. 11, 2002.”

But Public Law 107-243, the “Authorization for Use of Military Force against Iraq Resolution of 2002” that President George W. Bush signed into law on Oct. 16, 2002, did not actually declare war on Iraq.

In fact, the legality of the Iraq war depended upon the president’s compliance with the law, which stipulated that the president, "prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that (1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and (2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001."

However, documents that were declassified in 2005 show that "claims of a cooperative relationship between Iraq and al Qaeda made by top administration officials in support of the Iraq war were contrary to what U.S. intelligence officials believed to be true," in the words of Sen. Carl Levin (D-MI).

It is therefore reasonable to conclude that on March 18, 2003, when the president signed a letter to leaders of both houses of Congress affirming what he did not, in fact, know to be true, his decision to launch Operation Iraqi Freedom was therefore without legal justification. It was not, in fact, a legal act; it was a crime. Not only does it constitute a "high crime" under Article II, Section 4, of the Constitution, it is the crime that the Nuremberg tribunal affirmed in 1946 to be "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" -- namely, the crime of waging aggressive war.

As for Prof. Weinberger’s argument that the war is not illegal on account of international legal obligations of the United States under the United Nations Charter, it relies on the several dubious claims. The first of them is that “the legal status of the United Nations is questionable.” That he should make this claim is ironic, since, as we have seen, United Nations Security Council resolutions are invoked in the document upon which he relies to argue that the war is legal.

Prof. Weinberger also argues that “U.S. courts have repeatedly held that the U.N. Charter is not self-executing. Absent legislation authorizing its provisions, the Charter cannot be held to supersede existing U.S. laws, and therefore its rules concerning the use of force do not bind the U.S. government.”

This view is hardly universal among legal scholars. Robert E. Dalton, for example, in Chapter 6 of National Treaty Law and Practice (Austria, Chile, Colombia, Japan, Netherlands, U.S.), edited by Monroe Leigh, Merritt R. Blakeslee, and L. Benjamin Ederington (Washington, D.C.: American Society of International Law, 1999), thinks otherwise. He writes: “The United States is a member of the United Nations. Under its Charter, the United Nations can make decisions that are legally binding on its members. Article 25 of the Charter provides that the Security Council may make such decisions when acting under Chapter VII. The Senate having given its advice and consent to ratification of the Charter containing those powers, and the President, having ratified it, have bound the United States to carry out those obligations.”

For more on these questions, see David N. Cinotti, “The New Isolationism: Non-Self-Execution Declarations and Treaties as the Supreme Law of the Land,” Georgetown Law Journal (August 2003), which shows that the argument on non-self-execution is one developed by the infamous John Yoo, author of the Justice Department memos justifying the legality of torture. Prof. Cinotti shows that when the United States invokes the non-self-execution argument, “it fails to respect the command of its own Constitution.”

Prof. Weinberger accuses those who argue the war is illegal of making an “inflammatory argument with little substance and even less accuracy,” but it is his own arguments that are specious. One could divine as much, perhaps, from his failure even to mention the Nuremberg Principles, which prohibit the waging of aggressive war, and which were devised by the United States to prosecute the leaders of Nazi Germany after World War II.

Robert H. Jackson, the chief United States prosecutor at the Nuremberg Trials and later a justice of the Supreme Court, said: “I am not willing to charge as a crime against a German official acts which would not be crimes if committed by officials of the United States.” Were he alive, there is little doubt but that Justice Jackson would be appalled by Prof. Weinberger’s essay.

But Seth Weinberger’s intellectual camaraderie with John Yoo suggests that his allegiances are perhaps elsewhere than to the principles and ideals that motivated Justice Jackson.

On May 1, the University of Puget Sound announced that Prof. Weinberger has been “named an academic fellow for 2007 of the Foundation for the Defense of Democracies, and will travel to Israel at the end of May for an intensive course in terrorism studies, and in particular, how democracies can defeat the worldwide terrorist threat.”

The Foundation for the Defense of Democracies (FDD) is associated with many of the neoconservatives who brought us the Iraq war. Its board of directors includes Steve Forbes and Jack Kemp, and its board of advisers includes Sen. Joseph Lieberman, Newt Gingrich, Gary Bauer, Bill Kristol, Richard Perle, Marc Ginsberg, and Charles Krauthammer. For more on this dubious group, see here. The web site Right Web notes that “Although the FDD does not define its own ideology, the positions and philosophy it promotes mirror those of neoconservative ideologues and institutes, including its fervent promotion of Israel, America's mission to direct international affairs, and the struggle against all manifestations of totalitarianism. Republican Party insiders dominate the FDD's board, and its president, Clifford May, is the former director of communications for the Republican National Committee. . . . May is also vice chair of the Republican Jewish Coalition and chairman of the policy committee of the Committee on the Present Danger (CPD), which is described by the FDD as a “venerable Cold War group” that was revived by the FDD in 2004. . . . An investigative report in the American Conservative put the FDD's annual budget at close to $3 million . . . the FDD relies on the support of 27 individual high-end donors, including Leonard Abramson of U.S. Healthcare; New York financier Michael Steinhardt; Edgar S. Bronfman Sr., patriarch of Seagrams and president of the Jewish World Congress, and his brother Charles Bronfman; and Lynn Schusterman, widow of Oklahoma oil executive Charles Schusterman. In 2002, the FDD received $250,000 apiece from Edgar Bronfman, Michael Steinhardt, and Home Depot founder Bernard Marcus.”

Thank you very much, Prof. Weinberger and editors of the News Tribune, but we believe that we shall seek our legal counsel elsewhere.

--Mark Jensen is a member of United for Peace of Pierce County (WA) and of the faculty of Pacific Lutheran University.

2.

U.N. Charter argument fails

TRAGIC ISN’T THE SAME AS ILLEGAL
By Seth Weinberger

** Critics should avoid false claim that Iraq war violates international law **

http://www.thenewstribune.com/467/story/54997.html

News Tribune (Tacoma, WA)
May 6, 2007

As the war in Iraq stretches into its fourth year, the voices of those opposed to the U.S. military presence in Iraq intensify. Here in Tacoma, protesters have attempted to block the transit of military vehicles through the city’s port and Army Lt. Ehren Watada has refused to deploy with his unit to Iraq.

Underlying such actions is the concept of an individual’s duty to resist a war believed to be “immoral and illegal.” Many of these protests, and Watada’s legal defense in particular, hinge on the argument that the Iraq war is illegal. Ohio Congressman and Democratic presidential candidate Dennis Kucinich, who visited the University of Puget Sound in March, is among those who claim that the invasion was illegal. On April 28, the state Democratic Central Committee voted overwhelmingly to “support and commend” Watada for his decision, arguing that Watada is duty-bound to refuse his order to deploy.

As American soldiers are required to follow orders only so long as they are legal, the implicit claim in supporting Watada’s “courage, moral leadership, and commitment to duty” is that the order to deploy to Iraq is illegal. However, this assertion does not hold up under scrutiny, and those who use it do a disservice to their own cause.

The Iraq war may have been ill-conceived and unnecessary. The occupation and rebuilding may have been bungled. The whole thing may be stupid and tragic. But stupid ain’t illegal. The Iraq war is, plain and simple, legal under U.S. law.

Congress authorized the war when it passed the Authorization for the Use of Military Force on Oct. 11, 2002. There are serious legal disputes over whether Congress could “de-authorize” the war with a subsequent resolution, but to date there has been no effort to do so. And while Congress has passed an appropriations bill that purports to hold the president to a timeline for bringing the troops home, George W. Bush has vetoed it, forcing Congress to back away from the imposition of a deadline.

What about international law? Watada’s defense argued that the war violated U.S. commitments under the United Nations Charter.

The U.N. Charter was formally ratified by the U.S. Senate; under the Supremacy Clause of the U.S. Constitution (Article 6), ratified treaties are part of “the supreme law of the land.” Thus, according to this reasoning, the U.N. Charter is supreme law of the United States and, according to this argument, a war launched in violation of the U.N. Charter is illegal under both international and national law.

Under the U.N. Charter, the use of force against a state is only permissible under two conditions: authorization by the U.N. (which has occurred only twice: the Korean War and the first gulf war), or in self-defense from an imminent attack (as in the case of Israel’s pre-emptive strikes in the Six-Day War). Since there was no authorization from the U.N., and since Iraq did not pose an imminent threat to the United States, according to this logic the invasion of Iraq was illegal.

Unfortunately for Watada and the protesters, this argument is untenable.

First, the legal status of the United Nations is questionable. Law can only be meaningful and enforceable when applied fairly and consistently, and the U.N. falls far short of meeting this standard. States openly and routinely violate their commitments to the United Nations, genocides continue without response, sanctions and condemnations are levied with anything but an even hand, and the U.N. has proven itself unable (or unwilling) to implement its own laws.

Law cannot be selective; if the U.N. refuses to uphold its laws on nonproliferation or genocide, it cannot expect adherence to other laws, such as those governing the use of force.

Most important, however, is the argument that rests on the Supremacy Clause: In order for a ratified treaty to become “supreme law of the land” it must either be self-executing or passed into law by both houses of Congress, not just the Senate. A self-executing treaty is one that is clearly intended to replace or supersede existing legislation and thus would need no further implementation by Congress.

According to the American Society of International Law: Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are “self-executing” or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so -- sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent -- or lack thereof -- that the provision become effective as judicially enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing.

If the Iraq war is to be understood as violation of U.S. domestic law due to U.S. commitments under international law, the U.N. Charter must be seen as self-executing. The relevant section of the U.N. Charter is Chapter VII, the most critical articles of which are:

Article 39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

Article 40: “In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. . . .”

Article 41: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations.”

Article 42: “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea or land forces of Members of the United Nations.”

This language does not approach the level of specificity present in congressional legislation that would render the Charter self-executing.

In fact, U.S. courts have repeatedly held that the U.N. Charter is not self-executing. Absent legislation authorizing its provisions, the Charter cannot be held to supersede existing U.S. laws, and therefore its rules concerning the use of force do not bind the U.S. government.

There has been no legislation transferring the war powers of either the president or Congress to the United Nations. Thus, the U.N. Charter does not have legislative force domestically: It is not the “supreme law” of the United States.

Those who oppose the war and who wish to effect change in U.S. policy should resist the temptation to use an inflammatory argument with little substance and even less accuracy. Demonstrating how the war is not commensurate with American national interests would be a far more effective tool.

Even questioning the morality of the war and appealing to the sensibilities of the American people would likely have a greater impact. But claiming that the conflict is illegal is a non-starter.

--Seth Weinberger is assistant professor of politics and government at the University of Puget Sound. He teaches courses on foreign policy, international security and political philosophy. He also writes Security Dilemmas, a blog that discusses international politics (securitydilemmas.blogspot.com). This article originally appeared in the Trail, the student newspaper of UPS.