War, law and American democracy

Bryan Long Chip Pitts
24 October 2006

"(Every) member of the United Nations is legally and morally bound by the Charter to keep the peace. More specifically, every member is bound to refrain in its international relations from the threat, or use, of force against the territorial integrity or political independence of any state."

President Harry S Truman, 23 October 1946

"Whose life would be on my hands as the commander-in-chief because I, unilaterally, went beyond the international law, went beyond the stated mission, and said we're going to show our macho? We're going into Baghdad. We're going to be an occupying power - America in an Arab land - with no allies at our side. It would have been disastrous."

President George HW Bush, 28 February 1999

"In Iraq, we saw a threat, and we realized that after September the 11th, we must take threats seriously, before they fully materialize."

President George W Bush, 30 September 2004


Oh, that sons would heed the wisdom of their fathers!

In both deed and word, the George W Bush administration has discarded core international laws, ranging from the Geneva conventions, to those against torture, to the laws governing the use of force. These monumental breaks with the past have been accepted with little comment or debate by the Republican-controlled and supposedly "conservative" Congress. Media attention, in the United States at least, has focused on whether the Iraq war was justified or necessary; the wider implications of a policy of preventive war remain largely ignored.

Yet this new, open-ended war is destabilising the world, and corroding democracy in the Unites States homeland. Did the events of 11 September 2001 really justify discarding the rule of law that the US had previously been so careful to nurture?

After the devastation of the two world wars, nations recognised that a world in which they may each wage war based on perceptions of future potential threats is one likely to have many more wars. The United Nations charter thus clarified and codified prior international law against the threat or use of force except in response to actual or imminent armed attack.

Since that time, war has not disappeared, but continued deference given to the principle of non-aggression by the United States and others has been remarkably effective in preventing, moderating, and resolving conflict between nations.

Chip Pitts is lecturer at Stanford Law School, and president of the Bill of Rights Defense Committee

Bryan Long is a social-systems philosopher

Chip Pitts and Bryan Long are co-founders of Advocacy for Principled Action in Government

Also in openDemocracy:

"Iraq, pre-emption, and the laws of war: scholars reply to Dick Cheney" (29 September 2006) – an open letter went by leading legal scholars to all members of the United States Congress, following the US vice-president's new, blanket justification of the invasion of Iraq

A state of fear

The national-security strategy (NSS) signed by President Bush in September 2002 clearly departed from accepted international law. It acknowledges "centuries (of) international law" that nations may respond with military force to military attack against them or to imminent threat, but elaborates that that "imminent threat" must be "adapted" to new circumstances to allow not merely pre-emptive attack against imminent threats, but preventive attack against "emerging threats." This "adaptation" actually eviscerates prior law.

From the outset, the "Bush doctrine" of preventive war drew attention and criticism from international legal scholars in the United States and abroad. Thomas M Franck observed that "(while) a few government lawyers still go through the motions of asserting" that the invasion of Iraq was legally justified, our political leaders hardly even hold up that "fig leaf" (see "What Happens Now? The United Nations after Iraq", American Journal of International Law, 97/3, July 2003 [subscription only]). Nearly all international law scholars agree with outgoing UN secretary-general Kofi Annan that the invasion was "illegal". There has been little debate about international law in the US Congress, however, and even less on Fox News.

Despite the Iraq "fiasco", the new 2006 national-security strategy still asserts rights to use military action against emerging threats in at least some cases. The concept also lives on in statements from President Bush and vice-president Dick Cheney. President Bush said in 2004: "Knowing what I know today, I would have made the same decision."

Cheney affirmed on Meet the Press on 10 September 2006 that even had we known that Iraq did not have weapons of mass destruction (WMD), the United States would have invaded anyway because Saddam "has the capability ... (he'd) done it before." And everyone has heard the administration's repeated claims that "(we) are safer because we are on the offense against our enemies overseas."

The national-intelligence estimate (NIE) leaked on 24 September (and later declassified) adds to the accumulating evidence that, far from making the United States safer, the Iraq war has substantially increased the global terrorist threat. Yet the administration remains in denial. President Bush asserts that Iraq is now the "central front" of the war on terror, neglecting to mention that if this is so, it is because he made it so.

The administration shifts the subject to non-nuclear Iran (notably not North Korea, which has expanded nuclear capabilities under this administration's watch). In eerie echoes of Iraq, Iran's intent and capabilities are said to make it an "emerging threat" of the first magnitude, against which the United States must take preventive military action. Unsurprisingly, this sabre-rattling has evoked defiant statements from Iran, which are then seized upon as more evidence of the emerging threat.

The psychological frame of "a nation at war" has been driven into the minds of US citizens by constant repetition. The administration has reified the "war" metaphor for them, creating a patriotic stupor in which they let themselves accept that the blunt instruments of war are somehow best suited to fight shadowy, networked individuals and small cells of terrorists. They have similarly accepted the enemy's continual morphing: from al-Qaida to Saddam, from Iraq to Iran, and from Iran to a generalised but somehow unified "Islamofascism" bent on world domination and now allegedly posing an existential threat that Bush has elevated to "the decisive ideological struggle of the 21st century."

Incessant use of martial language, frequent reference to terrorists with nuclear weapons, and periodic homeland-security "code red" and "code orange" alerts, like air-raid sirens in the night, remind American citizens to fear the "enemy". These fears are manipulated to justify infringement of rights, abrogation of international treaties, and concentration of power in the executive branch.

A politics for change

What becomes of democracy in a never-ending "state of war"? Where are the American leaders who will protest the radical, reckless break in American policy? Even as the mid-term elections on 7 November 2006 approach, when democratic debate should be at its most lively, the view of the United States as "a nation at war" renders many silent. Dissent is denigrated as unpatriotic and as appeasement of the enemy. Any member of congress who objects is effectively deprecated as "soft on terror".

This overbroad, preventive, perpetual war sustained by a climate of propagandistic fear and deception - so reminiscent of the similar state of war in George Orwell's Nineteen Eighty-Four - has led to over-broad changes that seriously undermine centuries-old liberties and the rule of law in ways that will not be easy to reverse.

Just before it recessed at the end of September, the Republican-controlled US Congress, joined by a few Democrats, granted still further executive powers requested by President Bush. The signature into law of the Military Commissions Act of 2006 on 24 October means that the CIA can continue to use secret torture techniques, the president can continue to unilaterally reinterpret the Geneva conventions, and the military can continue to operate tribunals that the US Supreme Court held unconstitutional in June. All this is underpinned by the elimination of the classic writ of habeas corpus (to "have the body" of the prisoner brought before an independent tribunal to justify the detention) with respect to whole classes of detainees.

This confluence of aggressive and unjustified war abroad and subverted democracy at home is no mere coincidence, and should not be a surprise. James Madison observed the "universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad." Edmund Burke put it: "the people never give up their liberties but under some delusion."

George Washington's farewell address stressed the need to "avoid the necessity of those overgrown military establishments which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty." In this, he presaged Dwight Eisenhower's caution against the "disastrous rise of misplaced power" by the "military-industrial complex" that could "endanger our liberties and democratic processes."

The asymmetric warfare engaged in by modern terrorists renders these classic concerns even more meaningful. The declassified summary of the NIE confirms earlier assessments by the International Institute of Strategic Studies (Strategic Survey 2003/4, 2004), the Rand Corporation, and others: together, they make it obvious that terrorism will not be reduced by military intervention and threats of military intervention, by uncritically supporting Israeli military actions, by establishing apparently permanent bases in Iraq, by expanding rather than closing Guantánamo, or by the unremitting and absurd rhetorical linkage of terrorism, fascism, and Islam.

The transformation of a fight against al-Qaida into a global war may serve the electoral politics of the Republican Party and the profit motives of Halliburton, but it does nothing to improve the security, diplomatic influence and economic strength of the American nation.

The struggle against terrorism requires a community of nations, each committed to the principles of non-aggression. Rather than opposing and withdrawing from treaties such as those relating to landmines, anti-ballistic missiles, biological weapons, global warming, and the International Criminal Court, the United States should return to advancing the framework of the UN charter, international law, and multilateralism that it pioneered and that served US interests so well.

Much damage has been done to American credibility by the actions of the Bush administration and its supine congressional allies. It is highly unlikely that more sensible policies will emerge from the Bush administration, but a reconstituted, different Congress might be more willing and able to begin to set things right.

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