Draginol - 10/13/2004 4:54:28 PM
“Who determines whether something is "legal" or not btw?”
There are many sources: Federal statutes, the Constitution, and International law (i.e. treaties, which have the same legal authority as federal law and international customary law which is also legally binding.
“The only law the US President has to recognize is the constitution and congress gave him the authority to act.”
Wrong. The Constitution is only ONE source of recognized law when it comes to war and military action. Congress did not formally declare war, but they did authorize the President to use force. However, that is not the end of the analysis. Pre-emptive war falls under the category known as customary law but there are specific rules as to when it is legal and when it is illegal.
At the end of WWII, the U.S. and our allies established the Nuremberg Trails and Charter (1945), establishing individual criminal responsibility for war crimes. It also distinguished legal war for self-defense from aggressive war. Prior to Nuremberg, The Hague Convention of 1907 and the Kellogg-Briand Pact of 1928 (named after U.S. secretary of state Kellogg), had already established rules prohibiting certain conduct during war and made aggressive war illegal and both of these are legally binding. The Supreme Court has actually ruled that this is true. It is not imaginary. The chief offense, the U.S. insisted, was Nazi Germany's crime of aggressive war.
So, what constitutes aggressive war? In order for military action to be deemed: "self-defense," the threat cannot be speculative or tenuous (i.e. grave and gathering danger doesn't cut it). The threat must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation." Additionally, the use of military force must be necessary and proportional to the threat posed. The U.S. accepted this criterion and the Supreme Court confirmed their legitimacy in the "Caroline Case." What most people don't realize is there is a legal distinction between "pre-emptive" self-defense (which is legal) and "anticipatory" self-defense (which is illegal). Anticipatory self-defense is pre-emptive military action based upon a FEAR that an attack MIGHT occur at some unforeseen time in the future---again, this is illegal. Pre-emptive self-defense (which is legal) also requires clear and convincing evidence that a threat is about to occur. There was no clear and convincing evidence that Iraq was about to attack the U.S., in fact, most of what we knew before and especially after the war pretty clearly shows just the opposite. There was also no evidence that Iraq fit any of the criteria mentioned above that would have justified a pre-emptive strike. Conclusion = Iraq war was illegal.
Please note that there is no mention here of the U.S. needing the approval of another country or the U.N. Everything I mentioned above is law that has been accepted and followed by the U.S. Also note that there is nothing mentioned here about having to be attacked first nor does it say that the U.S. needs evidence “beyond a reasonable doubt” that they are about to be attacked. That is not the standard, however, you DO have to have MORE than just mere speculation and conjecture, which is all we basically had on Iraq and the National Intelligence Assessment (NIA) regarding Iraq confirms that. The NIA was full of speculation and qualifiers regarding Iraq’s WMD. Whether you agree with the law or whether you like it is irrelevant. What is relevant is adhering to what the law IS.).
“But that aside, if you want to believe in some sort of imaginary "international" law things were safe there too.”
I refer you to my comments above.
“1) Iraq had violated the 1991 cease fire agreement. It was a cease fire, not an end of the conflict.”
The cease-fire agreement that you are referring to authorized nations to “use all means necessary” to enforce a prior U.N. resolution which had declared Iraq’s invasion of Kuwait a “breach of international peace and security” and authorized nations to use force to “restore peace and security” to the region resulting from IRAQ’S INVASION OF KUWAIT. It does NOT mention anything regarding “regime change.” In fact, one of the reasons President George H. W. Bush (the father) did not allow U.S. military forces to storm onto Baghdad in 1991 was because he KNEW that such measures exceeded the authority of the U.N. resolution that authorized the invasion in the first place. These are his words, not mine. Look at: David G. Savage, et. al, “Law Experts question legal basis of conflict,” Gulf News, March 1, 2003.)
“2) Resolution 1441 promised serious consequences if Iraq failed to comply. Serious consequences is diplo-speak for "War" btw. If you disagree, ask Serbia who found out what "serious consequences were" years before.”
Wrong. Although 1441 threatened “serious consequences” if Iraq did not comply with 1441’s mandates, “serious consequences” is not “diplo-speak” for war. “Serious consequences” means exactly that but it does not rise to the level of the very specific verbiage employed by the Security Council when it authorizes the use of force. The specific verbiage authorizing the use of military force is “all necessary means” and 1441 did not say that. I know that sounds like a bunch of legal hair-splitting and I concede that it is. However, there really is a difference between the two and there is a reason why 1441 was drafted using “serious consequences” language and did not use “all necessary means.” First, there was much debate within the Security Council over the drafting of this specific language because the U.S. wanted to send Iraq the strongest message possible by getting unanimous support for 1441. In order to get unanimous support, the U.S. compromised on this specific language because other Security Council members wanted the U.S. to come back for a 2nd resolution specifically authorizing the use of force. No, it wasn’t just the French! Sorry, but I had to throw that in there because the British wanted a second resolution specifically authorizing the use of force to give Blair political cover for his skeptical public at home. Other members of the Security Council said they never would have voted for 1441 had they known that the U.S. was going to say 1441 authorized the use of force and not come back for the second resolution. So, when you put all that together I think it’s a hard case to make that 1441 was enough. When you interpret law or resolutions to determine precisely what they mean, Courts will look at what the document actually says and if there is an ambiguity, they will look at authors’ debates and their INTENTIONS. This is the same methodology used by the Supreme Court when they are trying to determine the “Founders’ intent” in the Constitution. It’s pretty standard stuff.
