[Congressional Record Volume 157, Number 44 (Wednesday, March 30, 2011)]
[Extensions of Remarks]
[Pages E559-E560]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     LEGALITY FOR THE USE OF FORCE

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                       Wednesday, March 30, 2011

  Mr. CONYERS. Mr. Speaker, I would like to submit the following 
article:

             Is Bush's War Illegal?--Let Us Count the Ways

                           (By Francis Boyle)


                         The ``Blowhard Zone''

       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 traditional! 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

       Bush, Jr. instead went to the United National Security 
     Council to get a resolution authorizing the use of military 
     force against Afghanistan and Al Qaeda. He failed. You have 
     to remember that. This war has never been authorized by the 
     United Nations Security Council. If you read the two 
     resolutions that he got, it is very clear that what Bush, Jr. 
     tried to do was to get the exact same type of language that 
     Bush, Sr. got from the U.N. Security Council in the late fall 
     of 1990 to authorize a war against Iraq to produce its 
     expulsion from Kuwait. It is very clear if you read these 
     resolutions, Bush, Jr. tried to get the exact same language 
     twice and they failed. Indeed the first Security Council 
     resolution refused to call what happened on September 11 an 
     ``armed attack''--that is by one state against another state. 
     Rather they called it ``terrorist attacks.'' But the critical 
     point here is that this war has never been approved by the 
     U.N. Security Council so technically it is illegal under 
     international law. It constitutes an act and a war of 
     aggression by the United States against Afghanistan.


                         No Declaration of War

       Now in addition Bush, Jr. then went to Congress to get 
     authorization to to go to war. It appears that Bush, Jr. 
     tried to get a formal declaration of war along the lines of 
     December 8, 1941 after the Day of Infamy like FDR got on 
     Pearl Harbor. Bush then began to use the rhetoric of Pearl 
     Harbor. If he had gotten this declaration of war Bush and his 
     lawyers knew full well he would have been a Constitutional 
     Dictator. And I refer you here to the book by my late friend 
     Professor Miller of George Washington University Law School, 
     Presidential Power, that with a formal declaration of war the 
     president becomes a Constitutional Dictator. He failed to get 
     a declaration of war. Despite all the rhetoric we have heard 
     by the Bush, Jr. administration Congress never declared war 
     against Afghanistan or against anyone. There is technically 
     no state of war today against anyone as a matter of 
     constitutional law as formally declared.


                         Bush, Sr. v. Bush, Jr.

       Now what Bush, Jr. did get was a War Powers Resolution 
     authorization. Very similar to what Bush, Sr. got. Again the 
     game plan was the same here. Follow the path already 
     pioneered by Bush, Sr. in his war against Iraq. So he did get 
     from Congress a War Powers Resolution authorization. This is 
     what law professors call an imperfect declaration of war. It 
     does not have the constitutional significance of a formal 
     declaration of war. It authorizes the use of military force 
     in specified, limited circumstances.
       That is what Bush, Sr. got in 1991. It was to carry out the 
     Security Council resolution that he had gotten a month and 
     one-half before to expel Iraq from Kuwait. But that is all 
     the authority he had--either from the Security Council or 
     from Congress. And that is what he did. I am not here to 
     approve of what Bush, Sr. did. I do not and I did not at 
     the time. But just to compare Bush, Jr. with Bush, Sr. So 
     Bush, Jr. got a War Powers Resolution, which is not a 
     declaration of war.
       Indeed, Senator Byrd, the Dean of the Senate, clearly said 
     this is only a War Powers authorization and we will give 
     authority to the president to use military force subject to 
     the requirements of the War Powers Resolution, which means 
     they must inform us, there is Congressional oversight, in 
     theory, (I do not think they are doing much of it), 
     controlled funding, and ultimately we decide, not the 
     Executive branch of the government--we are the ones who gave 
     the authorization to use force.
       Again very similar to what Bush, Sr. got except the Bush, 
     Jr. War Powers Resolution is far more dangerous because it 
     basically gives him a blank check to use military force 
     against any state that he says was somehow involved in the 
     attack on September 11. And as you know that list has now 
     gone up to 60 states. So it is quite dangerous, which led me 
     to say in interviews I gave at the time this is worse that 
     the Tonkin Gulf Resolution. Better from our perspective than 
     a formal Declaration of War, but worse constitutionally and 
     politically than the Tonkin Gulf resolution. But still 
     subject to the control of Congress and the terms of the War 
     Powers Resolution. Indeed you might be able to use that War 
     Powers Resolution and the authorization in litigation that 
     might come up. Keep that in mind.


                          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.


                           Nazi Self-Defense

       Then what happened after failing to get any formal 
     authorization from the Security Council, the U.S. Ambassador 
     Negroponte--who has the blood of about 35,000 people in 
     Nicaragua on his hands when he was U.S. Ambassador down in 
     Honduras--sent a letter to the Security Council asserting 
     Article 51 of the U.N. Charter to justify the war against 
     Afghanistan. And basically saying that we reserve the right 
     to use force in self-defense against any state we say is 
     somehow involved in the events of September 11. Well, the San 
     Francisco Chronicle interviewed me on that and asked what is 
     the precedent for this? I said that the precedent again goes 
     back to the Nuremberg Judgment of 1946 when the lawyers for 
     the Nazi defendants argued that we, the Nazi government had a 
     right to go to war in self-defense as we saw it, and no one 
     could tell us any differently. Of course that preposterous 
     argument was rejected by Nuremberg. It is very distressing to 
     see some of the highest level of officials of our country 
     making legal arguments that were rejected by the Nuremberg 
     Tribunal.

[[Page E560]]

                            Kangaroo Courts

       Now let me say a few words about the so-called military 
     commissions. I have a little handout out there called 
     ``Kangaroo Courts.'' It would take me a whole law review 
     article to go through all the problems with military 
     commissions. I have been interviewed quite extensively. I 
     have some comments on it in my book. Professor Jordan Paust, 
     a friend and colleague of mine at the University of Houston, 
     just published an article in the Michigan Journal of 
     International Law which I would encourage you to read. It 
     goes through the major problems. But basically there are two 
     treaties on point here that are being violated at a minimum.
       First, the Third Geneva Convention of 1949. I will not go 
     through all of the arguments here but it is clear that just 
     about everyone down in Guantanamo (not counting the guys who 
     were picked up in Bosnia and basically kidnapped) but all 
     those apprehended over in Afghanistan and Pakistan would 
     qualify as prisoners of war within the meaning of the Third 
     Geneva Convention of 1949, and therefore have all the rights 
     of prisoners of war within the meaning of that convention. 
     Right now however, as you know, all those rights are being 
     denied. This is a serious war crime. And unfortunately 
     President Bush, Jr. himself has incriminated himself under 
     the Third Geneva Convention by signing the order setting up 
     these military commissions. Not only has he incriminated 
     himself under the Third Geneva Convention, but he has 
     incriminated himself under the U.S. War Crimes Act of 1996 or 
     so, signed into law by President Clinton and making it a 
     serious felony for any United States citizen either to 
     violate or order the violation of the Four Geneva Conventions 
     of 1949.


                      The Federalist Society Cabal

       I am not personally criticizing President Bush. He is not a 
     lawyer. He was terribly advised, criminally mis-advised, by 
     the cabal of Federalist Society lawyers that the Bush 
     administration has assembled at the White House and the 
     Department of Injustice under Ashcroft. President Bush, Jr., 
     by signing this order, has opened himself up to prosecution 
     anywhere in the world for violating the Third Geneva 
     Convention, and certainly if there is evidence to believe 
     that any of these individuals have been tortured, which is 
     grave breach, let alone at the end of the day executed. So 
     this is a very serious matter.
       I did not vote for President Bush, Jr. But I certainly 
     think it is a tragedy that these Federalist Society lawyers 
     got the President of the United States of America, who is not 
     a lawyer, to sign the order that would incriminate him under 
     the Geneva Conventions and United States Domestic Criminal 
     Law. This is what happened.


                     Jeopardizing U.S. Armed Forces

       Moreover, by us stating we will not apply the Third Geneva 
     Convention to these people we opened up United States armed 
     forces to be denied protection under the Third Geneva 
     Convention. And as you know, we now have U.S. armed forces in 
     operation in Afghanistan, Georgia, the Philippines, in Yemen 
     and perhaps in Iraq. Basically Bush's position will be 
     jeopardizing their ability to claim prisoner of war status. 
     All that has to happen is our adversaries say they are 
     unlawful combatants and we will not give you prisoner of war 
     status. The Third Geneva Convention is one of the few 
     protections U.S. armed forces have when they go into battle. 
     Bush, Jr. and his Federalist Society lawyers just pulled the 
     rug out from under them.


                           U.S. Police State

       In addition the International Covenant on Civil and 
     Political Rights clearly applies down in Guantanamo. It 
     applies any time individuals are under the jurisdiction of 
     the United States of America. Guantanamo is a colonial 
     enclave, I will not go through its status any further. But 
     clearly those individuals are subject to our jurisdiction and 
     have the rights set forth therein--which are currently being 
     denied.
       If and when many of these Bush, Ashcroft, Gonzalez police 
     state practices make their way to the U.S. Supreme Court, we 
     have to consider that a five to four majority of the Supreme 
     Court gave the presidency to Bush, Jr. What is going to stop 
     that same five to four majority from giving Bush, Jr. a 
     police state? The only thing that is going to stop it is the 
     people in this room.

                          ____________________