Local Law Professor Thinks Bush and Cheney Should Be Prosecuted

by on September 26, 2009 · 17 comments

in Civil Rights, History, War and Peace

Marjorie Cohn-ed-sm

Marjorie Cohn. Photo: Sam Hodgson of voiceofsandiego.org

Editor: Marjorie Cohn teaches law at Thomas Jefferson School of Law – my old alma mater – plus she is the national president of the National Lawyers Guild.  This interview with her on voiceofsandiego just appeared and we had to share.

by Randy Dotinga / Voice of San Diego / Sept. 25, 2009

On the legal front, George W. Bush and Dick Cheney have few bigger enemies than Marjorie Cohn, a professor at San Diego’s Thomas Jefferson School of Law.

Cohn, president of the liberal National Lawyers Guild, is a leading voice demanding that members of the Bush Administration be prosecuted for war crimes. She also condemns the Afghanistan and Iraq wars as illegal under international law, which she says the United States. It’s a debate that hinges on whether the wars were launched in self defense.

In a new book, “Rules of Disengagement: The Politics and Honor of Military Dissent,” she and a co-author (Kathleen Gilberd) write about members of the military who have resisted service in the current two wars on legal grounds. She’s also written a book about the Bush Administration called “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law.”

So far, Cohn’s opinions aren’t gaining much traction in Washington D.C., although the Obama Administration is slowly making strides toward some torture prosecutions.

So Cohn fights on. In an interview, she talked about the responsibility of soldiers to disobey wrongful orders, the prosecution of government lawyers and the country’s ability to withstand the distraction of putting a former president and vice president on trial.

What are your biggest recent successes on the war-crimes front?
I have testified as an expert witness in courts martial and military hearings for service members who have refused orders to go to Iraq and Afghanistan. They have argued that those wars are illegal. My testimony has corroborated those beliefs by citing the U.N. charter, which is part of U.S. law, which says one country cannot invade another country unless it’s in self defense or the U.N. Security Council agrees. And neither of those wars is lawful under the U.N. charter.

(For the remainder of this article at voiceofsandiego.org, go here.)

{ 17 comments… read them below or add one }

john September 27, 2009 at 8:29 am

Obviously her logic comes from her heart and not from her brain on this, it’s evident when she believes that “war crimes” is the relevant word to describe the “charges” she wants the executive branch brought up on. (I notice she doesn’t say a word about Congress, if they hadn’t passed the Joint Resolution by overwhelming margin Bush couldn’ sign it into law and there would be no war)
She’s woefully mistaken about the UN Charter. We were acting as agents in the defense of Kuwait and Saudi Arabia, who had been invaded by Iraq and 12 years later the UN was still paassing resolutions trying to get Saddam in compliance with cease fire conditions which included ending support for terrorism, which he thumbed his nose at over 120 times from 2000-2003 with payments totalling $15million to Palestinian suicide bombers. He was a continuing threat and we were under obligation to those two countries to protect them from his agression- and I don’t suppose she knows that Saudi Arabia, or specifically the Royal Family, is owed the credit for nearly all of America’s prosperity since 1973?
Look up “petrodollars”. We didn’t end up with half the world’s wealth because we work hard or they think we’re charming.
Anyway, the previous policies in dealing with Saddam caused the 9 /11 attacks. After 9/11 we took a look at that and we realized it was an untenable situation, and walking away was out of the question for the above reasons.


Frank Gormlie September 27, 2009 at 11:59 am

John, I’m sorry, I thought you were on the same planet as the rest of us. Pretty much everyone, except Cheney, has agreed there was no connection between Iraq and 9/11. So, where are you getting your stories? Marjorie Cohn is carrying the nation’s conscience, and is pushing for the law to be upheld.


Molly September 27, 2009 at 12:47 pm

Marjorie – keep it up, girl!


George September 27, 2009 at 12:54 pm

Yes, Congress was weak-kneed and caved to political pressure and post-9/11 hysteria on the resolution supporting Bush 2’s military adventure in Iraq, but many of those congresspeople justified their vote on what turned out to be false statements by Bush and company. And that doesn’t begin to address what happened once we were there.


john September 27, 2009 at 9:28 pm

Apparantly, Frank, you have allowed the media to lead you by the nose to what they want you to think to stay interested in the story- and also must believe that when they write an article about what Cheney says, it’s an accurate portrayal of what he really said or believes. (and you forget he is a politician- why are you now quoting the man you might claim lied us into a war, as the speaker of gospel truths?-however we can leave Cheney for another discussion)
What I said about our policies with Saddam causing 9/11 I stand by 100%, you seem to be adept at the wordplay which so often accompanies this issue- “connected”- how can you discuss middle east foreign policy at the adult table (nothing personal) without understanding that every major policy action we take with an Arab Muslim country over there will affect many other countries and millions of people? If you are familiar with the grievances cited against the US by Osama Bin Laden in his Fatwa, or declaration of jihad, you know, the things we did to piss him off and cause his spiralling escalation of agression which culminated in the 9/11 attacks, you will see 2 of the 3 were about Iraq and containing Saddam. The deaths of Muslims from sanctions. The attacking of a muslim country with infidel troops placed on holy soil. Even the third, the Palestinian Israeli situation, was being inflamed by Saddam’s direct actions. To say they are not connected is just silly. It’s as if anti-war people are trained for pavlovian reaction if they see the two in the same paragraph to jump to denial, without independent thought.
I agree that Saddam was not complicit in perpetrating the crimes of September 11th. I didn’t say he was.
BTW, what are the charges specifically you would level at these men?


Frank Gormlie September 27, 2009 at 9:37 pm

John, this is what you wrote:
“the previous policies in dealing with Saddam caused the 9 /11 attacks. After 9/11 we took a look at that and we realized it was an untenable situation, and walking away was out of the question for the above reasons.”

Either way you cut it, you are connecting Saddam with 9/11. Some how we couldn’t “walk away”? “out of the question”? That is simply Empire Talk. Who made us the world’s cop? How many foreign countries do we have military bases on?

Do you deny that Bush and Company lied to us, the American people about the reasons we were forced to war?

Let’s start with that one: lying to the people to start a war. How about that for starters for the multitude of charges we should level at these (men?) cowards and traitors.


bodysurferbob September 27, 2009 at 10:18 pm

yeah, i agree, frank you have been manipulated by the liberal media, dude. you were led to believe that candidate obama would bring change. you were led to think that the wars would end, that obama would bring in socialism, and finally, you were led to believe that the president of this great nation, the leader of the free world – is black. don’t believe any of it.


john September 27, 2009 at 9:50 pm

George, Congress did not, should not, and would be in violation of constitutional duty, to base their vote on the JR on the executive branch’s speeches or press releases. Separate branches of gov’t, hello?
The fact of the matter is the legislative branch, after the intelligence reform act of 1980, (post church commission) by law has their own separate conduit of finished intel products from the DCI, 100% independent of executive branch influence. The NIE on Iraq’s WMD produced and signed off by DCI Tenet in Oct. 2002 was a product of a request by Senate Democrats specifically to make an informed decision on the Joint Resolution, and did reflect the consensus of the intel at the time.
Most of the info in the report dated back to Clinton’s tenure- as well Tenet was his appointee. We had no people on the ground in Iraq after Bush took office, and interestingly enough, the one source who came up during Bush’s tenure, “Curveball”, portrayed as a Rummy/Cheney stooge? Wrong.
Read the press release of the signing of the Iraqi Liberation Act of 1998. Clinton walks out with INC head Chalabi, and promises millions of dollars for him to get defectors to come forward with “allegations” of human rights and weapons violations. Not actual crimes, just allegations.
He was under Tenet’s supervision the whole time.
I might add it is foolish to go to war, bomb every government asset and building in the country with the combined might of the world’s most effective military, then walk amongst the ruins of war- then declare that the war did not need to take place. Saddam did not fight back. What we fought was pre-emptive against what he would do several years later when Blix found nothing, most of our forces were withdrawn, and the world’s largest petroleum reserves were pumped out by the world’s thirstiest customers- especially China- and all the proceeds went into Saddam’s pocket to replenish the most experienced and largest Army in the middle east. America, having no basis to have Iraq surrounded indefinately- indeed this is why we had to act, we did not wish to sustain this policy of containment any longer- would not be johnny on the spot and the forces of Kuwait and KSA are not the 250,000 coalition troops who defeated a Saddam who laid low.
You think Russia and France would mind paying Saddam with Migs and Mirage F1s?
Do you know who armed Saddam?


Frank Gormlie September 27, 2009 at 10:08 pm

John, so now you’re blaming the invasion and occupation of Iraq on Bill Clinton? Sure, certain Democrats colluded to ramp up the drumbeat for war, but you cannot get around the point that Bush and his agents lied to Congress and the American people. That means you, John. You were lied to. Your brother and sister Americans were sent to Iraq to kill and be killed – for no good, moral or legal reason. Why doesn’t that really steam you?


john September 29, 2009 at 9:52 am

No, the point was the sole new source of intelligence during Bush’s tenure that is often portrayed as a charletan of Bush or Rumsfeld’s masterful lies sold to Congress, was actually an asset instigated to defect by legislation based funding from the Clinton White House, put under supervision of Clinton’s DCI appointee Tenet, and the legislation Clinton signed clearly is worded to indicate that a charletan telling lies was all he was ever required to be.
You seem ignorant of one of the basic principles of our constitution, in claiming that Bush “lied to congress”. Are you implying that a Democrat legislator ignored the intelligence report furnished to him by DCI Tenet at the request of his own party’s colleagues… and heard George Bush speak, telling him what to do and that’s how he voted?
I’m tryimg to imagine this scenario but it’s so bizarre I can’t. We’ll take Senator Jay Rockefeller as an example, I won’t disrespect Ted Kennedy due to his recent passing.
Rockefeller, who holds a long term chair on the SSIC (senate select intelligence committee) which approves the budget of the CIA, gets daily reports from Tenet, has oversight of their operations- a month before the JR vote requests a report which DCI Tenet furnishes about 3 weeks later, containing specific conclusions about Iraq’s WMD programs, reflecting the concensus of the intel community- ignores ALL of that and instead decides to listen to what George Bush is saying on TV and in WhiteHouse press conferences? Do I have that right?

Okay here is why I’m confused.

Bush got the same report.

His claims came from the same body of information that Rockefeller had access to.

There is one CIA. One DCI. One Iraq NIE.

There is not a report anywhere that said “Saddam has no WMD”.

There is a 90 or so page report with a dissenting opinion on one small issue at the bottom of I think page 59 . The dissenting opinion also reiterates it does not alter the overall concusive findings.

so the issue is if they were not exposed to “Bush’s lies” can you please produce for me this “truth” that existed in October 2002 that would have led to a different vote? where would this “truth” have come from? It’s been a good six years but in all that time there has not surfaced a report dated from the time stating “Saddam disarmed”.

If anything might steam me it’s that people have died overseas in a policy action which, though controversial, did have tangible goals, benefits, and justifications well stated. Yet some would tarnish their sacrifice by claiming it was for nothing- as if going fishing or staying home in bed would be a better use of their time. Without trying to go to a really ugly place with the discussion, Frank, just consider that the possible difference between the nation that went to war in WW2 and came home and went to the moon- and the one that went to southeast asia in the 60’s and spent a similar time after wallowing in self loathing and malaise, was that men who returned home from the big one with an arm missing, or worse, could wear that wound like a badge of honor. People bought them a beer, elected them as mayor or even Senator of the state of Kansas. “thanks for your sacrifice, you saved the world”. Losing the arm was a shame but you saved the world! It was closure, you could live with it.

Vietnam and the ability of Americans to access info and form their own often arrogant and underinformed opinions about the value of other American’s sacrifices, similar to what we’re doing to Iraq veterans now, is a different attitude. People are seeking political capital for their own partisan agenda by denigrating the service of men who are tragically disfigured and often labelled as baby killers, or imperialist oil thieves. I think this caused a multitude of problems for Nam vets who are often prescribed the worst treatment for mental scars of war: remembering it. reliving it. thinking about it, because you never got “closure”.
That flies in the face of pinhead VA shrinks, but it’s common sense. Men returned from WW2, were greeted as heroes, accepted that what they did was the right thing, and didn’t relive their horrors repeatedly for years.

I won’t presume to judge each critic’s motivation, whether just hate for Republican President Bush, or genuine humanitarian concern for Iraq’s civilians, but given that I’ve seen almost no concern for the deaths of Iraqis by sanctions under Clinton, the facade would be hard to hide behind.

Remember the Walter Reed “scandal”? Vets depressed over holes in a wall, or a dirty floor? **** that silliness, they just got back from a place where every day you took a dump, odds were good you swallowed an inch long dungfly. The place is a sewer. More partisanship. I believe they were depressed because the hero’s welcome they expected evaporated into “it was a huge mistake.”

I will be blunt and say let’s not BS anyone about tears for the dead without realizing it’s one thing to send a man to hell and back, as they say, and have him return- in one piece, or maimed, or in a body bag. It’s quite another to send a man to hell and back and when he returns say “oh, that was a mistake. forget it.”

I assume you drive a car or have ridden in one. Saudi Arabia is our number one exporter of pertroleum, has been for a long time. Disagree and offer a better way was possible is respectable. Declaring the route taken had no reason when many can be found is really insulting to the veterans and ultimately harms the entire nation.
Please take this positively as I realize using the issue to attack you would be hypocritical on my part for the same reason.


Monty Kroopkin September 27, 2009 at 10:28 pm

“Pre-emptive” war is illegal. John actually just made a case for prosecuting Bush.

Iraq did not attack the U.S. and the Bush II invasion of Iraq violated international law, and is prosecutable (and must be prosecuted) as a war crime and a crime against humanity. Afghanistan did not attack the U.S. either. Osama Bin Laden (and his group) claimed responsiblity for the 9/11 attacks. The attacks were not the act of Afghanistan or of any state. No state made any act of war on the U.S. The attacks were criminal acts by a non-state organization, and the law required that we respond according to the rules of an international police investigation, and arrest and trial of those caught. Instead, we made war on another country. The invasion of Afghanistan was illegal, a war crime and a crime against humanity.

Then, setting up new governments in Iraq and in Afghanistan while we had the countries under occupation again violated international law (this time, the Vienna Convention). Again, those responsible must be prosecuted.

Add all the torture and all the civilians killed and maimed by U.S. forces (the stuff the press usually talks about when they get around at all to talking about war crimes) and there is no excuse for not prosecuting every last person responsible for these crimes.

And I mean every last person. Under the Geneva Conventions it is a crime for a member of a military force to obey an illegal order (particularly an order to commit a war crime or a crime against humanity). To do full justice, every active duty member and every military veteran who agreed to serve in Iraq or Afghanistan should be prosecuted. There aren’t enough prisons and jails to hold all these people, so the penalties obviously would have to be something else. The punishment shold fit the crime, though. Convictions should at least carry a penalty of dishonorable discharge for active duty (and retroactively applied for veterans) for every person who illegally set foot in these 2 countries. The punishment should be more harsh for those who bombed anybody’s house or who shot anyone.

If we don’t do this, members of our military will continue to believe they will be better off if they obey illegal orders, than if they obey the law.


john September 29, 2009 at 8:45 am

It is pre-emptive only in the sense it is in the self defense of expected resumption of aggression against Kuwait and Saudi Arabia, both of whom we were contractual agents of providing protection for against Saddam.
It is this which provides justification legally under UN Charter. Saddam attacks those two countries, a coalition repels Saddam who agrees to specific terms of a cease fire. Kuwait and Saudi Arabia agree to allow the UN to broker (ensure) the enforcement of the conditions of the cease fire, but 12 years and as many resolutions later the UN cannot successfully ensure the peace and security of the region (more specifically those 2 victims of Iraq’s aggression) and as contracted agents for them we have the right under UN charter to act in their self defense.
It is notable that twice during the 90’s Iraq amassed forces on Kuwait’s border poised to reinvade. As late as January 2003 Iraq was violating Saudi airspace with deep incursions by Mig-25’s, still currently the fastest combat jet in the world- so fast, in fact, our F-15’s and F-16’s on station were repeatedly scrambled but could not catch them to shoot them down. (source:http://www.acig.org/artman/publish/article_247.shtml)
these high speed penetrations by recon aircraft over the borders of nations with active hostilities are no small matter, they are an act of war. The only defense a SAM site has is the ambiguity of its location, thus they are almost always mobile batteries. A recon flight mapping out a region’s SAM batteries thus leaves the area as good as defenseless for hours or days while the placements are moved to new undisclosed areas. Recon flights such as these are precursors of full scale bombings, and have little other use.
This was at a time when Saddam had signed a UN agreement to disarm and live in peace with his neighbors, in January 2003- yet here he is giving all indications to the nation who is our strongest ally in the region, and who we owe nearly all our economic prosperity to since 1973 , and have a written contractual obligation to protect them from him- that he is about to bomb THEM back to the stone age.
I have links to more similar information of events that the media won’t tell you than I can count. It’s not because I like Bush, on the contrary I believe he and Cheney should have been brought up on impeachment charges in ’06 for the criminal trampling of rights over wiretaps and executive priviledge. They used 9/11 to destroy our freedoms and the prison we live in is only beginning.
However the media knows that selling copy to people who want Bush’s head on an anti-war agenda is easy, a no brainer. The arguments are based on emotion, and who can shout the loudest or evoke the most sympathetic tears.
The biggest lie about Iraq that you won’t hear is that America went to war as a nation but when it went too good and half the country was facing a presidential election against an incumbent with historically record approval numbers, the politicians of that party knew their only chance was to turn that success into a liability and distance themselves from it.
They lied to you and said they were duped.
They hope you are so ignorant of the workings of gov’t intelligence that you believe it goes from spooks, to Bush, to them.
They hope you never read the constitution and don’t understand separate branches of gov’t ensure checks and balances precluding idiot Texans from invading nations for their resources.
They hope you skipped third grade social studies classes describing petroleum’s vital importance in our “national security”.
They hope you never heard of the Joint Resolution, and they hope you are so partisan you forget many of them have been in Washington since the 60’s, have chairs on intelligence committees who oversee the CIA, yet were “duped” or “led by the nose” by an idiot with a double digit IQ who had barely a year in Washington when they voted on the war.
They hope you lack the common sense to realize a platform of “anybody but Bush” can only advance itself through portrayal of- or actual ruination of- the policies of his opponent as failures.
They hope you don’t know that the difference between their candidate in 2004, and the other side’s, was little more than theirs had a couple more mansions and was more experienced at self flaggelation over unpopular wars, while the other was a trigger happy cowboy easily put up to job others postponed.
I’m disappointed that so many of my fellow Obecians- and Americans, are participants in the partisan circus which was created by the greedy elitists to distract from their agenda. If you thought Kerry would get us out of Iraq, you’d be sadly lied to as well.
If you reject my words, then read these:

It’s dangerous to chase after Bush as if he were the villain, when he is just “Johnny Bravo”. You remember, Greg, in the Brady Bunch? “we don’t care about your music, man… you fit the suit!”

Democrats and Republicans alike knew going into Iraq was vital for petroleum security, ensuring US hegemony in the region for long term interests, and a darker reason: postponing the inevitable crash of the dollar against other world currencies. Saddam was engineering the hastening of that. Google “petrodollars”.
You think it’s bad now, had we not gone in and taken him out the dollar may have dropped to a tenth of its worth within 12 months of Blix declaring him WMD free.
Its value has been propped up for decades by a scheme Kissinger forged with the Royal Saudi family, still now in effect but slowly unravelling.
It’s all good to postulate now on the ethical guilt of being an imperialistic nation waging war, but Russia, France and China were set to go full bore into Iraq and pump all the oil they could with all the proceeds going in Saddam’s pocket- no part of it to the Iraqi people. Saddam would replenish his army, the largest and most experienced in the middle east, and we’d have no grounds to babysit him until after he made another mess.
Iraqis now do have a financial stake in their resources. We kept our promise and obligation to the Saudis. We kept China from the one thing that would unleash the full potential of their industrialization and the threat to the planet it offers, cheap and abundant petroleum.
We did what appeared at the time to be the right thing, and tho I cannot guarantee the predictions of worst case Saddam, neither can anyone guarantee the better outcome leaving him be.
On a personal level I seek facts and invite challenge to any I produce, as being proven wrong is an opportunity to learn a fact I did not know before.


Editor September 27, 2009 at 10:33 pm

A little editorializing right now: “Monty. Right on! Right on! Right on!”


Molly September 29, 2009 at 11:04 am

John, it’s difficult if not impossible to respond to everything you have said. Your thoughts are definitely a mish-mash of right and left. At the beginning of your ranting you question why Law Prof Cohn would want to prosecute Bush & Co, but then later you thought Bush should have been impeached in 06. And then you constantly defend this country’s attack on Iraq.

Listen carefully, John. Iraq never attacked us, never threatened us. We had no international right to invade and occupy that country. Period. You simply cannot accept this, and you keep falling back on ‘Saddam was gonna hit Kuwait or Saudi Arabia’ – as if that was a justification to go to war. If that’s where you stand, so be it, and we’ll have to just agree to disagree.

I’m not going to debate issues that have been settled (“Saddam had WMD”, connections between Iraq and Al Quaida, etc).

You cite the differences in attitudes between WWII – which my father fought in – and Vietnam and Iraq. Neither Vietnam nor Iraq attacked us. They were/are imperial wars for… oil, tin, rubber, access to markets, yes capitalist -oriented reasons.

You said nothing in the Fall of 02 warned the nation that we shouldn’t go to war. BS, John!!!! There were 100,000s of people in the streets all over the world demonstrating, warning us not to go, with tremendous and valid reasons. Because Bush & Co and enough Democrats ignored them/us, you now blame Clinton as Bush was just doing his job. More BS.

Obviously, you’ve spent some time on these rants, and I for one, appreciate that. You seem to be trying to get your disparate thoughts together. But they are inconsistent. You keep accusing others of not knowing history, or the Constitution or this or that document, and the larger picture escapes you.

The GOP-controlled Congress did not do its job of acting like a separate branch of government – we may agree there – and allowed Bush to push his lies – real lies – not just bad intell, dude.

Bring Bush to justice. If we don’t it will mean presidents in the future will be able to get away even more.


john September 30, 2009 at 10:08 am

I’ll try to address the points you raise though I know your opinion on the war will be set in stone- but remember each of our opinions are the collective sum of our interpretations of various facts we are exposed to, and if I introduce you to a fact you didn’t know please file it away mentally even if it opposes your opinion.

First I’ll take the comment on mish-mased opinion as an unintended compliment, as I am neither right nor left. Social/Domestic liberal and realpolitik foreign policy. My view on the Iraq war is unique in several ways I didn’t even touch upon.

Next- if having been attacked within our sovereign borders is a requirement before we go to war, you had better tell Great Britain, Japan, Australia. Canada. and most of Europe. We have contractual obligations, less important now than in the cold war, to protect all those people from outside aggression. The word “Allies” should put that point to rest. Kuwait was invaded in ’90 and we repelled Saddam, who also briefly invaded KSA during desert storm. The UN was cool with that, and therein is why Professor Cohn is wrong if she thinks we violated UN charter. (some of the following credited to user “The General” in a forum I used to frequent)
Resolution 687:

“Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990)”

(The USA and UK were “Member States cooperating with Kuwait”…in 1991 and in 2003.)

“Affirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq, and noting the intention expressed by the Member States cooperating with Kuwait under paragraph 2 of resolution 678 (1990) to bring their military presence in Iraq to an end as soon as possible consistent with paragraph 8 of resolution 686 (1991),

Reaffirming the need to be assured of Iraq’s peaceful intentions in the light of its unlawful invasion and occupation of Kuwait…

Bearing in mind its objective of restoring international peace and security in the area as set out in recent resolutions of the Security Council,

Conscious of the need to take the following measures acting under Chapter VII of the Charter,

1. Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of this resolution, including a formal cease-fire…

8. Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of:

(a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities;

(b) All ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities;

9. Decides, for the implementation of paragraph 8 above, the following:

(a) Iraq shall submit to the Secretary-General, within fifteen days of the adoption of the present resolution, a declaration of the locations, amounts and types of all items specified in paragraph 8 and agree to urgent, on-site inspection as specified below…

10. Decides that Iraq shall unconditionally undertake not to use, develop, construct or acquire any of the items specified in paragraphs 8 and 9 above and requests the Secretary-General, in consultation with the Special Commission, to develop a plan for the future ongoing monitoring and verification of Iraq’s compliance with this paragraph, to be submitted to the Security Council for approval within one hundred and twenty days of the passage of this resolution…

12. Decides that Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapons-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above…

32. Requires Iraq to inform the Security Council that it will not commit or support any act of international terrorism or allow any organization directed towards commission of such acts to operate within its territory and to condemn unequivocally and renounce all acts, methods and practices of terrorism;

33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990);
34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.
As of March 2003…the Security Council had not “taken measures necessary to maintain international peace and security” regarding Iraq; and “nothing in the present Charter” impaired us from taking the action that we deemed necessary as we war authorized to do under UNSCRs 660, 661, 678, 686, 687…The fact that twelve years after Iraq’s invasion of Kuwait the UNSC was still issuing Chapter VII resolutions is prima facie evidence that sufficient measures had been taken to “maintain international peace and security.”

Article 51 of Chapter VII says that, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

Iraq had fired on or otherwise engaged US an UK aircraft, legally enforcing the cease-fire, more than 500 times from 1991 to 2003. Right up to the eve of OIF, Iraq was attempting to engage coalition aircraft – Iraqi jets attempted to intercept two U-2 aircraft which were monitoring the inspections on March 11, 2003; forcing the coalition aircraft to abort their mission.

(this is most relevant to your point:)

The language of Chapter VII’s paragraph 51 does not require a nation to be physically under attack before it can wage a just war. It says that, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” It is a limitation on the UN Charter; not a limitation of the circumstances in which “individual or collective self-defence” can be employed.

Furthermore, the United States, as a Member State cooperating with Kuwait was authorized to use force against Iraq to enforce every resolution regarding the situation between Iraq and Kuwait from 660 to 1441 inclusive.

Some legal experts explain this further:

“There is a good legal argument that it was lawful on the basis of earlier UN resolutions, such as 678 passed in 1990 and 687 in 1991, and subsequent action by the security council during the next decade. Resolution 678 was still in force. To say it was no longer effective because it was 13 years old is spurious. If you follow that argument most of our domestic laws would be no longer in force.”
–Anthony Aust, Former Foreign Office deputy legal adviser and visiting professor of international law at the London School of Economics

“The right of a nation to use force in its self-defense is one of the most long-standing and basic principles of international law. Article 51 of the United Nations Charter, which declares that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations,” recognizes, but does not limit, this inherent right. Nor must a nation wait until an attack has actually occurred before using force; force can be used in self-defense in anticipation of an armed attack. As Elihu Root (who had served as President Theodore Roosevelt’s secretary of state) stated in 1914, and as the Justice Department quoted in a memo during the Cuban Missile Crisis, every state has “the right . . . to protect itself by preventing a condition of affairs in which it will be too late to protect itself.”

To use force in anticipatory self-defense, a state must have available information that reasonably indicates that it will suffer an attack from the enemy. What is important is not what is discovered after the fall of the Hussein regime–we cannot justify self-defense upon facts we only found out afterwards–but what we thought were the facts at the time we used force. Under criminal law, for example, we do not punish a policeman who shoots an attacker when, based on the facts as they reasonably appeared at that time, his life was threatened…

The United States was in the same position as the police officer who shoots an attacker who threatens him with what appears to be an automatic weapon. And the Bush administration was not alone in believing that Iraq had WMD. In 1991, the cease-fire that suspended the first Persian Gulf hostilities required Iraq to destroy its WMD stockpile and production facilities.

Of course, everyone, including the Iraqis and even the U.N. Security Council, recognized that Hussein possessed extensive WMD. At least four times in the decade that followed, Iraqi obfuscation and intransigence forced the Security Council to condemn Iraq for breaching its disarmament obligations. In November 2002, the Security Council decided that Iraq “has been and remains in material breach of its obligations” to eliminate its WMD program, and reaffirmed its original 1991 authorization to use force against Iraq…

Before the invasion, both the United Nations and Congress agreed with the administration on WMD. Based on the information as it appeared at the beginning of hostilities, the Bush administration reasonably concluded that Iraq’s WMD remained intact, and that force was the only way to remove this direct threat to U.S. national security and international peace. If it turns out that no WMD are found, then not only the Bush administration, but also Congress and the U.N. Security Council may have been wrong. But that would not render the war illegitimate…”(John Yoo)
Get all that? The war is legal because technically, the official cease fire wasn’t even on. Saddam didn’t even comply with those original conditions. Thus we as “Member States” defending Kuwait never ended hostilities legally allowed during Desert Storm and all the further resolutions reinforced this permission.
You say issues of WMD and Al Qaeda are settled. To me they are, too.
You will say “we found no WMD thus we were lied to because……” What? that finding no WMD meant that Saddam could not have used WMD in aggression against his neighbors? This is what the JR said about WMD:

“Whereas Iraq both poses a continuing threat to the national security of the United States and international peace and security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations by, among other things, continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations;”
The issue was never that we had to find a pile of WMD and take it away from Saddam and the danger is gone. It was Saddam as leader of Iraq would always seek, procure, and use, WMD.
Saddam and Al Qaeda? How about Saddam, the #2 state sponsor of terrorism in the world, in 2002?
And again, see what the joint resolution really said- no claim of any sort other than Al Qaeda members were in Iraq. However it rightfully mentioned his prolific support of international terrorism. He throws his own hat in Al Qaeda’s ring in April 2002 with the action described in the link above.
“You said nothing in the Fall of 02 warned the nation that we shouldn’t go to war. BS, John!!!! There were 100,000s of people in the streets all over the world demonstrating, warning us not to go, with tremendous and valid reasons.”

If anything anyone said here would draw a disrespectful comment from me, that might be it but I’ll refrain and say you could have worded that better.
The point was that the body of intelligence available to both Bush and Congress only really had one conclusion: That Saddam had failed to disarm as required by the cease fire and monitored by the UN. There was nobody saying “He’s disarmed!” or even more relevant “he’s a changed man and no longer seeks glory and honor through conquest with WMD”. Bush doesn’t toss aside Tenet’s NIE and look at hippies marching in europe and san francisco and say “hey, the freak with the beads has a sign that says Saddam has no WMD! Screw Tenet!”

And there were not masses taking to the streets in fall 2002, it started in mid january 2003. Ask yourself if this was an effective use of the democratic process, which really only saw them clog the streets, pissing people off by making them late for work, etc.
You form organized public demonstrations AFTER letter writing campaigns, putting measures on election ballots, calling your elected representatives in Washington, etc, fail. I’ve discussed this with people who actually marched in San Francisco and NY.
Did you know about 8 out of 10 who proudly proclaimed they marched, also conceded they weren’t even registered voters? LOL!

But what were these tremendous and valid reasons? Their tour bus would contiunue on to Baghdad and attack Saddam with a love bomb?

And I’m not blaming Clinton but trying to diminish the partisanship here. Bush continued policy inherited from Clinton, the intelligence in particular.
I’ll finish on a rather inflammatory note but I’m evolving to discover what the real problem is here:
If you believe that the failure to stumble across buildings piled high with WMD neatly stenciled on pallets means that George W. Bush lied us into a war, the issue is not his alleged dishonesty but your (our) own confusion and misinterpretation of his danger and what the situation really was. That is a recurring theme, “where are the stockpiles”? If this was the case Blix’s people would have found them in early 2003.
ISG report details Saddam had gamed inspections and sanctions and established procurement lines in violation of sanctions, retained scientists who researched and developed clandestine breakout programs, even physical laboratories were found which could produce weaponized nerve agents in a few days- all under the nose of the UN. Yet no WMD were found.

Well no ****. What kind of idiot leaves full strength nerve gas just sitting around in barrels waiting for coalition aircraft to just glance a bomb off it and gas the whole base as it atomizes into the wind? When you can store the precursor here and the reactive agent a mile away and it’s safe and nobody can prove what you’d do with the two parts? That’s just what 16 55 gallon drums of organophosphate were doing under camoflauge at a weapons depot.
The American people are not the brightest. Bush needed their support for the policy, and the simple version was what they got, and I’ll get even more inflammatory by noting if after 6 years so many people (not necessarily the people here) are so bereft of factual knowledge of the indisputable facts about our policy in the middle east, I have a hard time sympathizing with claims about being misled on the war in 2003.
(an instant qualifier being those who assert WMD was the sole reason that Bush gave, and when none were found the others-Democracy, Human Rights, etc- were then made up after the fact. Noam Chomsky actually claimed this in an op-ed he wrote for the Khaleed Times, a middle east publication about 4 years ago, called “it’s the imperialism, stupid!” Some quick research and a lucky guess found his email address and I fired off an email calling him on this error and we exchanged 8 or 10 emails over the next two weeks arguing politely about it. As expected the professor of linguistics of MIT was well spoken, articulately explaining why his piece portrayed the matter acurately, if not by the letter than in intent.
He was also quite full of ****, insisting that WMD was the sole rationale for permission from congress to use force as he asked them in the JR. When my argument reached having to count how many times each other reason appeared in the JR vs WMD and he hesitated the concession, alluding to age related exhaustion as reason to break off the discussion instead, I affectionately but disappointedly observed that perhaps a career jousting against dodgey political leaders had left him unwittingly employing their tactics)

Bush’s UN floor speech in Sept 2002 is the one to hold him to if the public wants justice to be served. It was a month before the cutoff if you or I wanted to voice input.


jon September 30, 2009 at 11:25 am

Yowza. It would take me 3 hours to read through your guys comments here. I think I’ll buy the book version when it comes out. Will there be cliff notes?


john October 2, 2009 at 2:53 pm

Fair enough, in review my replies even tire me. Cliff notes:

Ms. Cohn: ” citing the U.N. charter, which is part of U.S. law, which says one country cannot invade another country unless it’s in self defense ”

Me: Kuwait and Saudi Arabia: Allies.
(charter specifies “member states and those cooperating with member states”, that was us and the UK in ’90 and ’03)


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