[News] Iraq - An Even Worse Bybee Memo

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Mon May 4 12:01:01 EDT 2009

May 4, 2009

The Iraq War Memo

An Even Worse Bybee Memo


Jay Bybee wrote another memo that nobody has noticed, one purporting 
to authorize crimes far worse than torture, the same crimes the 
torture was itself intended to create false justifications for. On 
October 23, 2002, Assistant Attorney General Bybee signed a 48-page 
memo to the "counsel to the president" (Alberto Gonzales) titled 
of the President Under Domestic and International Law to Use Military 
Force Against Iraq." This was another secret law, but instead of 
authorizing particular uses of torture (which in reality were far 
exceeded, engaged in prior to the memos, etc.), this one authorized 
any president to single-handedly commit what Nuremberg called "the 
supreme international crime, differing only from other war crimes in 
that it contains within itself the accumulated evil of the whole."

And while the torture memos extensively and grotesquely limited the 
days of sleep deprivation and the hours of waterboarding, the 
aggressive war memo included only a single paragraph at the bottom of 
page 47 requiring that:

"Were the President to determine that the use of force in 
self-defense is necessary to counter the threat posed by Iraq's WMD 
program, such force should be proportional; in other words, it should 
be limited to that which is needed to eliminate the threat posed by Iraq."

When this memo was written, our president, vice president, and top 
cabinet officials were screaming about Iraq's vast quantities of 
weapons, but Bybee was already crafting his justifications around the 
idea of weapons "programs."

The result was guaranteed to be massive death, no matter how 
"proportional" to the nonexistent threat. But the permission was also 
guaranteed to be wildly exceeded by anybody's definition. The result 
has been 1.2 - 1.3 million deaths according to Just Foreign Policy's 
updated figure based on the Johns Hopkins / Lancet report, and 
according to the British polling company Opinion Research Business's 
estimate as of August 2007.

According to the United Nations High Commissioner for Refugees 
(UNHCR), the number of Iraqis who have fled their homes has reached 
4.7 million. If these estimates are accurate, a total of nearly 6 
million human beings have been displaced from their homes or killed. 
Many times that many have certainly been injured, traumatized, 
impoverished, and deprived of clean water and other basic needs, 
including the need to have parents.

And what has accumulated in the evil of the whole? The current 
occupation of Iraq has seen the United States target civilians, 
journalists, hospitals, and ambulances; use antipersonnel weapons 
including cluster bombs in densely settled urban areas; use white 
phosphorous as a weapon; use depleted uranium weapons; employ a new 
version of napalm found in Mark 77 firebombs; engage in collective 
punishment of Iraqi civilian populations; including by blocking 
roads, cutting electricity and water, destroying fuel stations, 
planting bombs in farm fields, demolishing houses, and plowing down 
orchards; detain people without charge or legal process without the 
rights of prisoners of war; imprison children; torture; and murder. 
Michael Haas has published a well-documented book with the clear 
title: "George W. Bush, War Criminal? The Bush Administration's 
Liability for 269 War Crimes." Jay Bybee's liability must not be minimized.

Bybee's memo declares that a president has the power to launch wars. 
Period. The "authorization to use force" passed by Congress is 
treated as gravy on top of this basic power. According to Bybee's 
copy of the U.S. Constitution, Congress can "issue formal 
declarations of war." According to mine, Congress has the power "to 
declare war," as well as every related substantive power. In fact, 
there are no incidental formal powers anywhere in my copy of the Constitution.

Bybee dismisses the War Powers Act by citing Nixon's veto of it 
rather than the law itself, and upholds the "authorization to use 
force" without mentioning the requirements it included for the 
president, requirements he later met by lying about weapons and ties 
to 9-11. Bybee cites letters written by Bush as authoritative. He 
even cites a Bush signing statement. And, of course, he cites and 
relies on previous memos produced by his office, the Office of Legal 
Counsel in the Department of Justice.

Bybee relies heavily on the "Bill Clinton sort-of did it and might 
have done it, and therefore it is legal," argument. For good measure, 
he throws in Truman and Bush Sr. and Kennedy and Reagan, not to 
mention an Israeli ambassador's opinion of a U.N. declaration 
condemning an aggressive attack by Israel. The thrust of the argument 
is that, because Bush Sr. and Clinton launched strikes into Iraq it's 
OK for Bush Jr. to launch a whole lot of them. This would be the same 
as arguing that because Bush Jr. and Obama launched strikes into 
Pakistan, Obama or any future president can launch a full-scale war 
there. Legally, this is nonsense. The strikes are as illegal as the 
war would be. Politically, it's something to consider: do we really 
want to maintain silent acceptance of such strikes?

Bybee claims not only that a president can simply launch any war he 
wants, and that the "authorization to use force" somehow adds to that 
complete and total power, but also that -- in terms of international 
law -- attacking Iraq would be justified both as authorized by the UN 
Security Council and as an act of self-defense. The war would not be 
so much a new war, Bybee claims, as the suspension of a cease-fire 
that Iraq suspended first. And the Security Council would have 
authorized a war even though the Security Council itself might claim 
otherwise. Bybee redefines self-defense as "anticipatory 
self-defense" and argues that the authors of the UN Charter could 
never possibly have meant otherwise. And he adds that, in an age of 
nuclear weapons, anticipatory self-defense can justify launching a 
war against any nation that might conceivably acquire nukes, even if 
there was no reason to think that nation would use them to attack yours:

"We observe, therefore, that even if the probability that Iraq itself 
would attack the United States with WMD, or would transfer such a 
weapon to terrorists for their use against the United States, were 
relatively low, the exceptionally high degree of harm that would 
result, combined with a limited window of opportunity and the 
likelihood that if we do not use force, the threat will increase, 
could lead the President to conclude that military action is 
necessary to defend the United States."

This memo justified a war of aggression and all the crimes and abuses 
of power abroad and at home that were justified by the war. Jay Bybee 
has a lifetime appointment as a federal judge wearing black robes 
drenched in the crimson blood of his victims. His crimes are on paper 
in black and white for the world to see. If he is not impeached and 
prosecuted, similar horrors await our planet in the near future.

David Swanson is the author of "Daybreak: Undoing the Imperial 
Presidency and Forming a More Perfect Union" by Seven Stories Press. 
He can be reached at: <mailto:david at davidswanson.org>david at davidswanson.org

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