Congress should probe Bush’s
Iran attack plan, says Ellsberg,
warning of supreme war crime

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Whistle-blower also notes that officials take oath
not to the ‘fuehrer’ but to the Constitution,
which gives Congress sole war power

A WALL news report

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         Daniel Ellsberg calls for congressional investigation of the Bush-Cheney drive for aggression against Iran, which may include a nuclear attack. The man who risked his future to try to end the Vietnam war by releasing the Pentagon Papers wants Democratic leaders pressed to hold hearings on the possibility of a new war, its legality, and its consequences. Left to them, the issue will not be raised, he said.

         “No one could testify on this better than Admiral Fallon. He doesn’t want to testify, I’ve heard.... He should be subpoenaed. He has not fulfilled his responsibilities to his oath or to his country until he has told Congress under oath why he has opposed an attack on Iran ... why it would be disastrous.” Adm. William Fallon was forced to resign March 11 as commander of the U.S. Central Command, overseeing the wars in Iraq and Afghanistan.

         Officers of the military and the government swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” They do not swear allegiance to the president—contrary to the Nazis’ blood oath to the fuehrer, Ellsberg pointed out. “Being loyal to the ideals and principles of this country is not synonymous with obeying ... any one man.... He doesn’t make the law” and if he violates it, “must be disobeyed and resisted and exposed....” Among domestic enemies of the Constitution, he placed President Bush, Vice-President Cheney, and David Addington, Cheney’s legal adviser and chief of staff.

         Ellsberg addressed about 175 people at a luncheon meeting in San Francisco’s First Unitarian Universalist Church on Sunday, March 30. It observed both the fifth anniversary of the Iraq war and the tenth birthday of the War and Law League (WALL), which Ellsberg commended for a “noble, important effort: the effort to get back to these constitutional principles and the idea of a government of laws, not men.” He had read in memoirs that Cheney said after 9/11, “It looks like this will have to be a government of men for a while”—meaning as long as the “war on terror” lasts, which might be generations.

War crime is “on the table”

         He criticized what Democratic leaders and the three main candidates had put “on the table” and taken “off the table.”

         Alluding to Speaker Nancy Pelosi, who represents the Eighth Congressional District of California in San Francisco, he said that “to have ruled impeachment off the table is very [much] like ruling the Constitution off the table.” The people need to “remind Congress of their oath to the Constitution” and that “they were not elected for the sole absolute purpose of getting reelected,” he said. 

         For the three leading presidential candidates, Obama, Clinton, and McCain, removal of all troops from Iraq is off the table. As for Iran, they say (as George W. Bush says) all options are on the table, including the use of “tactical” nuclear weapons in Iran.

         “An option? To initiate first use of nuclear war against a country that has not attacked us and does not have nuclear weapons? That’s not an option. That’s not a legitimate alternative. That is nothing but a crime against humanity and a crime against peace.”

         The invasion of Iraq was “a clear crime against the peace, a war of aggression, what’s been called the supreme war crime, which encompasses all the others, and which was the main charge ... for which people were hanged at Nuremberg after the Second World War.”

         Through manipulation, lies, and its own ignorance, Congress supported Bush’s illegal war — with the aid of two of the three current candidates for president, Ellsberg said. “But even if with full information they had decided that this was a war the U.S. should engage in,” Congress would still be an accomplice in a war of aggression, contrary to the United Nations Charter, for as a treaty of the United States, it is a legal obligation under the Constitution (Article 6).

         He noted some demand for the administration to come to Congress to authorize any new war, a worthwhile move, because it would lower the chances of war starting. But if Congress acquiesced in the war, “it would be just as illegal and just as catastrophic.”

Truman stole the war power

          Ellsberg recommended the WALL documents making it clear through writings of U.S. founders that under the Constitution “change from peace to war is to be made — not with the consent of Congress, not with the advice of Congress, not with a shared decision by the president and Congress — [but] exclusively by the legislature....” (See documents below, including “The Founding Fathers on the Constitution’s War Power,” “Modern Commentators on the Constitution’s War Power,” and “Court Rulings Affirming the War Power of Congress.”) “Not many Americans have this in their minds at all after the last almost sixty years now.”

          As a 19-year-old in 1950, he admired President Truman and was proud that the U.S. seemed to be carrying out the World War II ideal of collective defense against aggression, i.e. by North Korea, and he even enlisted in the Marine Corps. It was described as a UN action, though the Russians were boycotting the UN then. It was an “explicit precedent by Harry Truman that the president did not need any role of Congress in sending troops into battle....” Senator Robert Taft, the most prominent Republican, “strongly condemned that and said this a very bad precedent; this is unconstitutional; congress will rue the day.” Ellsberg, who hated Taft for his labor stance, paid no attention then.

           “Truman was wrong; Taft was right on that; I was wrong....That precedent was very, very costly constitutionally.... The founders of the Constitution had a very good idea ... in direct reaction to what they saw as world history up till that time, and very specifically the practice of the empire of which we were part.... They said over and over, no one person, not just a British monarch, should be entrusted with the power ... to decide to go to war.... The decision to go to war should be vested in a large body of relatively representative people.... It had to be concurrent Senate and House majorities.

            “It would make less likely ... the kinds of wars that kings were prone to: wars of pride, wars of aggrandizement, wars that the public didn’t need and didn’t want, that were not just ... as in practice the U.S.A. is now doing. What we have come to is very close to an abrogation of Article I, Section 8, of the Constitution ... a brilliant, profound invention in world history,” deserving a struggle to keep it.

Hail to the chief criminal?

            “The legal profession — the judges, the law scholars, the lawyers in general, the law students — should be focusing on ... the illegal aspects ... of what is being done in our name,” the Iraq war being an egregious example. The current administration, Ellsberg said, is committing crimes that were done by other presidents: Lyndon Johnson had a program of illegal, warrantless wiretaps against the antiwar movement, the Black Panthers, and others that was not discovered until he was out of office.

           “Whether the Democrats in a majority would have been any more willing to impeach him than the Republicans are to impeach Bush is a question, but they weren’t challenged to do that, because the information was kept secret by thousands and thousands of people who knew about the crimes inside the government and kept their jobs and their clearances by keeping their mouths shut at the time.

            “Nixon again was repeating many of these crimes, some of them against me, it so happens: warrantless wiretapping against me, CIA agents come to beat me up or kill me on May 3, 1972; burglary into my doctor’s office to get information with which to blackmail me into keeping my mouth shut. This did come up while he was still in office, and because they were clearly illegal at the time, as well as unconstitutional, he was in trouble and he faced ... actual impeachment hearings and was forced to resign.... Interestingly, a number of Republicans joined that.... They rose to the challenge of enforcing the law, in a way that Republicans are egregiously not doing now, to their great shame....

            “We have a situation though now where for seven years, it turns out, the president has been blatantly violating a law, the foreign Intelligence Surveillance Act [FISA], which was passed precisely in the wake of the revelation of Nixon and Johnson’s lawbreaking ... to set up procedures for dealing with wiretaps.... The FISA court is very close to being a rubber stamp. But it does at least preserve the notion that the executive alone is not to be trusted to make the decision.... Congress has totally abrogated its ... oversight responsibility and [members] have ignored their sworn oath to uphold the Constitution. This surveillance clearly violates ... the Fourth Amendment to the Constitution.”

             Ellsberg also condemned the administration’s practice of torture as clearly illegal under principles of general international law, U.S. treaties, and domestic laws, “not only waterboarding. It’s the whole slew of cruel, inhumane, indecent procedures that they’ve been following ... which has been going on for seven years now....” Cheney’s man Addington wrote the advice “supposedly justifying torture, signing statements that abrogate legislation, the president’s inherent powers as commander-in-chief, for the surveillance, and for starting wars.... Their theory ... [is] that in this dangerous age the country needs ... a leader who has total freedom from second guessing by the Congress ... from prosecution, from court orders, from the Constitution ... not constrained by laws or by international laws, the UN Charter, for example.

           Officials “who keep their mouths shut, as I did for years, about what they know are unconstitutional actions or criminal actions are violating their oath of office.” They often think they are acting honorably because they are keeping secrets and “often consider the president, as I did for a long time, as the maker of foreign policy. I didn’t know much about the Constitution.... I didn’t think the Constitution applied to me particularly or the president.... That was wrong.” Many people still believe that, though a few, like Army Lieutenant Ehren Watada who refused to take part in an illegal war, take seriously their oath to uphold the Constitution, Ellsberg said.

Do Americans care about law?

          Most Americans don’t care very much about civil liberties, he said, “and they don’t care about law. And the idea of even addressing the question of whether the Iraq attack was legal did not arise in our national discussion before the war in any significant way at all. That’s a difference from some other countries, interestingly Britain, the mother country, from whom we separated in part so we wouldn’t have a king....”

            In Britain “the issue arose whether the war was legal. Actually, the chief of staff of their armed forces demanded an assurance from the top legal officers of the government, and the attorney general was a more or less political lawyer named [Peter] Goldsmith.” Elizabeth Wilmshurst, top professional foreign service officer dealing with legal matters, gave the opinion “that without UN authorization it would be flatly illegal. And she revealed that Goldsmith in his original discussions with her totally agreed” and presented the same opinion. When shared with U.S. authorities, though, it was deemed unacceptable. “‘If you’re going to be an ally, go back to the drawing board....’ So he came up with a second written opinion, rather lengthy,” giving pros and cons, mainly cons. That still did not suit the chief of staff, who said, “‘I do not want to be in a cell next to Slobodan Milosevic [the Yugoslav president arrested for alleged war crimes].... That’s not good enough for me to send people into combat in what looks like an illegal war....’ So Goldsmith then came back with a one-page paper, no argument, no substance, just saying ‘In my legal opinion, the war will be legal’ — at which point Elizabeth Wilmshurst resigned from the Foreign Office ... saying, ‘I can’t be part of this process that’s so clearly illegal.’”

           If that account had been known the Parliament, it might have kept the British out of the war, Ellsberg said, but by the time it was leaked out, the war was well advanced. He doubted whether any legal officer in the U.S. had been asked the question that the British chief of staff asked.

Question period

          Could Bush silence impeachment witnesses? The administration could not order people not to testify. There are people who would love to tell the truth if they would be subpoenaed, and they cannot be fired for appearing. Ellsberg planned to be in New Hampshire as the featured speaker at a rally April 14, two days before a vote in the state legislature on a proposed resolution asking the U.S. House of Representatives to look into impeachment of Bush and Cheney.

          What about Ralph Nader for president? Ellsberg admires Nader for his efforts for consumers and recognizes that a voice for getting out of Iraq is worthwhile, now that the leading Democratic antiwar voices are quiet. But he feels that Nader has done the country a great disservice by telling Democrats to “vote for me” in swing states, with the effect of electing a Republican; and that in saying there was no difference between the two major parties, Nader was lying.

          Don’t Obama and Clinton want to leave Iraq? When Senator Obama says he would get U.S. forces out of Iraq in a year and Senator Clinton says she will start getting them out within sixty days, they refer only to combat troops and both would leave U.S. bases in Iraq essentially forever. Each talks of a mission there, such as training Iraqi troops. They should be asked, “Just when would you imagine all troops being out?” Their ideas may not be far from Senator McCain’s hundred years. His vision for a quiescent Iraq is to be realized by more bombing, more troops, and maybe a draft to obtain them.

          Ellsberg’s talk was entirely extemporaneous. For more on his background, see the article below, “Famed activist Ellsberg to talk on war & peace....”
 

April 4, 2008