[News] Iraq - An Even Worse Bybee Memo
news at freedomarchives.org
Mon May 4 12:01:01 EDT 2009
May 4, 2009
The Iraq War Memo
An Even Worse Bybee Memo
By DAVID SWANSON
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
522 Valencia Street
San Francisco, CA 94110
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