<html>
<body>
<font size=3>
<a href="http://www.counterpunch.org/swanson05042009.html" eudora="autourl">
http://www.counterpunch.org/swanson05042009.html<br>
</a></font><font face="Verdana" size=2 color="#990000">May 4,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>The Iraq War
Memo <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">An
Even Worse Bybee Memo
</b></font></h1><font face="Times New Roman, Times" size=4>By DAVID
SWANSON <br><br>
</font><font face="Verdana" size=6 color="#990000">J</font>
<font face="Verdana" size=2>ay 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
"<a href="http://www.afterdowningstreet.org/downloads/worstbybee.pdf">
Authority of the President Under Domestic and International Law to Use
Military Force Against Iraq.</a>" 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."
<br><br>
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: <br><br>
</font>
<dl>
<dd>"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." <br><br>
</dl>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." <br><br>
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. <br><br>
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.
<br><br>
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. <br><br>
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.
<br><br>
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. <br><br>
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? <br><br>
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: <br><br>
<dl>
<dd>"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."<br><br>
</dl>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.
<br><br>
David Swanson</b> is the author of "Daybreak: Undoing the Imperial
Presidency and Forming a More Perfect Union</i>" by Seven Stories
Press. He can be reached at:
<a href="mailto:david@davidswanson.org">david@davidswanson.org</a><br><br>
<br><br>
<x-sigsep><p></x-sigsep>
<font size=3 color="#FF0000">Freedom Archives<br>
522 Valencia Street<br>
San Francisco, CA 94110<br><br>
</font><font size=3 color="#008000">415 863-9977<br><br>
</font><font size=3 color="#0000FF">
<a href="http://www.freedomarchives.org/" eudora="autourl">
www.Freedomarchives.org</a></font><font size=3> </font></body>
</html>