The Law Professor’s Wars

The Law Professor’s Wars

Notwithstanding the obvious ignominy, most Americans are aware that President Barack Obama is a recipient of the prestigious Nobel Peace Prize. Many though may be unaware that he is a former constitutional law professor and attorney as well.

Libya: Our Nobel Peace Prize winning President has launched yet another war in (Libya) the Middle East without any constitutional authority to do so. Equally offensive in the emerging legal pretext for the war, in which United Nations Security Council authorization supposedly eliminates the need for a congressional vote.

Nothing in the text or history of the United Nations Charter and the United Nations Participation Act purports to cede Congress’s constitutional powers over war and peace to the so-called international community. Congress did not…it could not do that. Obama’s argument, therefore, that United Nations authorization allows him to bypass Congress isn’t unprecedented. Harry Truman made it in Korea, as did Bill Clinton in Haiti. But as before, this argument violates the U.S. Constitution, misinterprets U.N. authority and represents an effort through the treaty process to strip from the House of Representatives its constitutional role in matters of war.

Afghanistan: Obama has no legal authority either from the U.N. or the U.S. Congress under the War Powers Resolution (WPR) to escalate the war in Afghanistan according to a distinguished Law Professor of International Law, Francis Boyle, to undertake unilateral escalation is in violation of Chapter VII of the United Nations Charter. President Obama’s surge of 21,000 troops now engaged in combat in Afghanistan comes in addition to the 60,000 currently in theatre.

Willful Disregard for Law: The Obama Administration simply ignored Section 4 (a) (3) of the WPR when it announced the escalation, U.S. armed forces are in Afghanistan originally pursuant to the War Powers Resolution (WPR). Its requirement that the President get congressional consent on substantial enlargement of forces was codified to deal with the kind of gradual escalation we saw in Viet Nam that eventually led to 550,000 troops being there. “Clearly” Boyle added, “President George W. Bush never had authority from the Security Council in the first place to invade Afghanistan, and the WPR requires that any enlargement of U.S. troops in a foreign nation be authorized by Congress. The U.S. invaded Afghanistan in the first place because the Taliban refused to allow UNOCAL/ENRON oil to build the Trans Afghan Pipeline (TAPI) across its territory. Professor Boyle added the escalation thing is about getting oil and gas out of Central Asia by avoiding Russia and dealing with Iran.” The way to do that, Professor Boyle said, “is to construct a pipeline south through Afghanistan into Pakistan and then to the Arabian Sea.” The oil and gas resources at stake are reported to be the second largest in the world after the Persian Gulf. “What is going on now in Afghanistan is not self-defense. Let’s be honest, we all know it. At best this is reprisal, retaliation, vengeance, catharsis, and military projection in order to completely eliminate competition and or dominate energy extraction by Russia, Iran and China. Call it what you want, but it is not self-defense, and retaliation and resource exploitation is never self-defense.” (See: Tackling America’s Toughest Question, Francis Boyle, 2010).

Recently, Congressman Dennis J. Kucinich was asked “whether you believe the war in Afghanistan in October. 2001 has been lawful.”?

The congressman replied: “No, it has not been conducted lawfully. We have bombed civilian targets in violation of international law. We in Congress did not authorize the bombing of civilians in Afghanistan. Nor did we ask that the blood of innocent people, who perished on 9/11 be avenged with the blood of innocent villagers in Afghanistan. We did not authorize the Bush Administration to wage war anytime, anywhere, any how it pleases. September 11^th was a criminal act, not an act of war. War is something that occurs between states, and terrorists have no permanent home. Al-Qaeda is said to have cells in more than 70 countries. It is clear that the Bush Administration’s policy of invade and occupy is not only illegal, but also a failure in reducing terrorist activity.”

A Derelict Congress: Congressman Dennis J. Kucinich would later file House Bill H.Con. Res.248, a bill which cites the War Powers Resolution of 1973, codified under Public Law 93-148, November 7. 1973, to direct the President to remove U.S. armed forces from Afghanistan by no later than the period of30 days beginning on the day on which the concurrent resolution is adopted. (See: The War and Law Survey, 12/03/07. H.Con Resolution 248 was introduced on March 4, 2010 and referred to the House Committee on Foreign Affairs…no further action, however, has been taken.

While congressional and or U.N. authorization is undoubtedly germane to ascertaining the constitutionality and therefore the legality of war, a larger question involves the articulated justification for war.

Pretext for War: The Bush Administration alleged that Afghanistan was involved in the attack on the World Trade Center and Pentagon during September 11, 2001. Further, it was alleged that the mastermind of 9/11, Osama bin Laden was a resident of Afghanistan courtesy of the Taliban Government. New evidence from structural engineers and forensic analysis demonstrates that 9/11 was far beyond the capability of Osama bin Laden or any other individual or group operating from a bunker in Afghanistan. In addition, Afghanistan was accused of providing operating bases for al-Qaeda from which to launch terrorist attacks. A fact discounted by former Taliban Ambassador to Pakistan, Mullah Abdul Salam Zaeef in his book My Life with the Taliban.  Ambassador Zaeef wrote that relations between Taliban and al-Qaeda were badly strained, and that Mullah Omar had expressly forbidden the mounting of any terrorist attacks against other countries originating from Afghan soil. The U.S. further falsely alleged that the Taliban refused to negotiate the expulsion and remanding of bin Laden to U.S. custody in neighboring Pakistan. It has been well-documented that the Taliban made numerous concessions to U.S. demands regarding the remanding of Osama bin Laden to U.S. jurisdiction. All were unceremoniously rebuffed. While on its face, the case against the Taliban may appear indefensible, the weight of the evidentiary reality suggests otherwise:

To forego for the moment that George W. Bush’s pre-emptive warfare strategy is in violation of the U.N. Charter which forbids pre-emptive war and that according to the U.S. Constitution all treaties made or which shall be made therefore, under the authority of the U.S., shall be the supreme law of the land.

Scores of independent journalists, legal scholars, jurists, and academics have written and or stated emphatically and unambiguously that not a single Afghan national, nor the Afghan state, participated in the planning and or the implementation of the attack on 9/11. Numerous independent commissions have determined that the attacks on the World Trade Center and Pentagon were conceived in Germany, Spain and Florida. And that therefore the U.S. is in serial-violation of the Nuremberg Standard which codifies such projections of military force as “war of aggression.” War of aggression is the supreme crime under the Nuremberg Standard. Under this legal definition and subsequent codification by international writ and convention, at the close of hostilities during World War II, German and Japanese offenders were executed for the commission of identical violations. (See: The Documents on the Laws of War. Edited by, Adam Roberts and Richard Guelff, Second Edition, 1995).

The United States and members of the ISAF contingent therefore are in serial violation of the Laws of War.

The Unstated Justification for War: Recently, a plethora of evidence has surfaced which demonstrates that the U.S. motivation for attacking Afghanistan was predicated on securing a dominant position over the proposed Trans Afghan Pipeline or TAPI and to establish and secure permanent military basing privileges in Afghanistan.

Evidentiary Brief: Consider, for example a multitude of threats as issued by officials of the U.S. Department of State. Former CIA agent Christina Rocca threatened Taliban emissary Sayed Hashemi with bombing while engaged in policy deliberations in Washington during the summer of 2001, months prior to 9/11, when it was revealed to U.S. negotiators that the Taliban preferred the Argentine Company Bridas for the TAPI project. And in addition, subsequent advanced warnings issued by U.S. officials as rendered to Pakistani’ Secretary Niaz Naik at a July, 2001 conference on Afghanistan in Berlin, with regard to a planned “U.S. military attack on Afghanistan before the snow flies no later than mid-October” of 2001, demonstrates beyond a reasonable shadow of doubt… the existence of a plan to launch a “war of aggression” against Afghanistan. (See: Afghanistan, Political Frailty and External Interference, Nabi Misdaq, 2006, and Afghanistan, a Search for Truth, ‘Forbidden Truth’ Bruce G. Richardson, 2009).

Though Obama is the inheritor of George W. Bush’s illegal wars… given his training in constitutional law it is extremely difficult if not impossible to comprehend his incongruent, yet demonstrable and continuing bellicosity.

Legal and Intellectual Reparations: The convening of future academic and legal discourse and study must ponder and assign jurisdictional responsibilities while citing documented infractions of law regarding numerous, serial violations of the U.N. Charter, Geneva Conventions, Nuremberg Standard, and a host of additional international covenants drafted to protect civilians during a time of war, and to which the United States and ISAF Members are signatories.

As well, international jurists will properly seek reparations for those victims of the unbridled, unconstitutional policies and bellicose practices of the Bush and Obama Administrations. For the American people and in the spirit of preventing future, unnecessary and or covetous war, a thorough legal examination must commence addressing the initial, premeditated criminality and gratuitous justifications for attacking Afghanistan. (See: George W. Bush War Criminal, the Bush Administration’s Liability for 269 War Crimes, Michael Haas, 2009).