Why Bush’s War Is Illegal

By Paul W. Lovinger and Harry Scott

            Not all 58,195 American bodies had come back from Vietnam yet when in 1970 Congress repealed the so-called Gulf of Tonkin resolution.  Nearly six years earlier, with only two nays (in the Senate), Congress had approved it: a vague resolution supporting President Lyndon Johnson’s determination to “maintain peace.”  Johnson thereupon claimed it gave him authority to wage war.

            Three days after the terrorist suicide attacks of Sept. 11, 2001, with only one nay (in the House), Congress enacted another vague resolution that President George W. Bush has taken as license to attack Afghanistan and any other countries of his choice with bombs and troops.  Congress will repeal it, as it did in ’70 – but will it take so much time and so many bodies?  

            On four main grounds, we charge that the resolution violates the Constitution, and that the war it supposedly authorizes contradicts U.S. treaty obligations.

1. Congress’ war resolution was an unconstitutional delegation of power.

            On Sept. 14 Congress hastily turned over to the president its constitutional power to declare war.   He may fight any “nations, organizations, or persons,” if he “determines” that they “aided” the Sept. 11 terrorist attacks – or even “harbored” anyone who did.

            The resolution names no country and states no objective. After attacking the Afghans, President Bush sent troops to fight Philippine rebels and escalated Clinton’s undeclared drug war in Colombia to a war on rebels there.  He has planned an attack on Iraq to overthrow its president and has considered actions in Somalia, Sudan, Yemen, Syria, and Indonesia.  He does not seem to care any longer about Sept. 11.  He treats the congressional resolution as a blank check giving him absolute, dictatorial power to wage lasting war, world war, or nuclear war.

            The Pentagon has studied some 60 countries as potential targets.  Vice-President Dick Cheney warns that the war may not be over “in our lifetime” (10-21-01).  It may be nuclear.  President Bush has ordered the military to prepare plans to drop atomic bombs on at least seven countries and use smaller nuclear weapons in battlefields (Los Angeles Times, 3-9-02).

            Professors Francis D. Wormuth and Edwin Firmage wrote in To Chain the Dog of War: The War Power of Congress in History and Law (1986): “Does the grant of the power to Congress ‘to declare war’ include the power ‘to declare future wars,’ whether by authorizing presidential action or by other means?  No, it does not.... One cannot enter into a future state of war in the present, any more than one can enter into a future state of marriage.... Congressional declarations of war, whether general or limited ... have always been addressed to a known adversary; one cannot declare war against, or be in a state of war with, an unknown adversary....”

            Congress did not declare war on Afghanistan or any other country.  Instead it gave the president the go-ahead to attack enemies that he would choose in the future. Attorney General John Ashcroft said (9-25-01) that “President Bush declared war on terrorism.” A president may not constitutionally declare war – even a supposed war on an ism.

2. Bombing communities and hospitals violates international and U.S. law     

            Since the bombing of Afghanistan began on Oct. 8, disastrous results have been reported almost daily.   Examples:

            • The village of Karam was razed and survivors spoke of 200 dead (BBC, 10-10-01).

            • Planes bombed a hospital in the city of Herat; the Afghans said over 100 died (AP, 10-22-01).  A mosque there and a nearby village were also hit, with cluster bombs and armor-penetrating explosives, the U.N. said (AFP, 10-25-01).  (Such explosives, using depleted uranium, were dropped on the Yugoslavs in the Clinton-NATO war of 1999.)

            • Red Cross warehouses, marked on top, were bombed on three occasions in Kabul, and one bomb meant for them “inadvertently” hit residences (Reuters, 10-27-01).

            • In the city of Kandahar, bombs destroyed a bus, killing seven or eight riders  

(The Times, London, 10-28-01), and badly damaged a hospital operated by the Red Crescent (Muslim equivalent of the Red Cross); a doctor said 15 were killed (AP, 10-31-01).

            • Waves of jets leveled the village of Chokar Karaiz, killing at least 60, survivors said (AFP, 11-2-01).

            • More than 25 bombs destroyed the village of Kama Ado, killing between 100 and 200 civilians, witnesses and survivors said; and bombings killed at least 50 villagers at Khan-e-Muirajuddin, according to a security chief (AP, 12-1-01).

            • Warplanes attacked a convoy of tribal elders going from Paktia province to Kabul, killing 15 and then 50 nearby villagers; later, planes attacked the village of Naka, killing up to 40 and wounding up to 60 (The Guardian, UK, 12-28-01, citing Reuters).

            • In place of ten homes and up to 107 residents, many of them children and women, piles of brick, pieces of human flesh and hair, and pools of blood remained after a pre-dawn air raid demolished the village of Qalaye Niazi as its inhabitants slept after a wedding celebration (Reuters, 12-31-01, and Los Angeles Times, 1-8-02).

            The air raids violate The Hague Conventions (1899, 1907), banning the bombardment of undefended towns, villages, dwellings or buildings; poisoned arms; arms to cause unnecessary suffering; treacherous killing; and refusing to allow an enemy to surrender.  Geneva Conventions outlawed attacks on any hospitals (1949).  All were approved by the U.S.  A 1977 protocol to the Geneva pacts condemned attacks on civilians or indiscriminate attacks.  (The U.S. signed it; the Senate has not voted on it.)

            Donald Rumsfeld, secretary of defense, says the military “does not target civilians.”  Yet he admits knowingly taking action that kills them:  “There is no question that when one is engaged militarily ... [there will be] unintended loss of life.”  (Briefing 10-11-01)  In a murder trial, the accused cannot argue, “It was an accident. I meant to kill somebody else.”

            The Pentagon has released lists of its “inadvertent” bombings of civilians.  It admitted intentionally bombing the Red Cross warehouses, containing food, in a “targeting error.”  The UN estimated that 7.5 million Afghans were near starvation.

            Ted Rall wrote, after a trip to the war zone, “We’ve already killed more civilians than died in the 9-11 attacks – and as we know firsthand, seeing innocent people killed creates rage among their survivors.  To the Afghans, we’re the terrorists” (Yahoo, 2-20-02).

            Note that under Article VI of the Constitution, “all treaties made ... under the authority of the United States, shall be the supreme law of the land....”

3. Bush refused to seek a peaceful solution, contrary to the U.N. Charter.

            The Charter of the United Nations is another U.S. treaty (1945, San Francisco).

            Article 2: “All members shall settle their international disputes by peaceful means” and “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”

            Article 33: Nations in any dispute that endangers peace “shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means....”

            Bush took none of those steps.  When the Afghan leaders, then the Taliban, offered to negotiate a peaceful solution before Bush began his bombing, he refused.  His aim, then supposedly to catch Osama bin Laden, became to “get rid of this particular regime” (he told business leaders in Sacramento, 10-17-01) – an aim for which the Charter prohibits force.

            The Sept. 14 resolution mentions “self-defense” as one of its purposes.  The U.N. Charter (Article 51) allows it only until the Security Council has acted to restore peace and security.  In a murder trial, no defendant could get away with a “self-defense” plea if he had spent a month planning, traveled far to break into his victim’s home, and put a bomb there.  

4. A U.S. treaty renounces war as an instrument of national policy.

            The Pact of Paris, or the Treaty for the Renunciation of War as an Instrument of National Policy, made aggressive war illegal and its initiation an individual crime.  The Nuremberg tribunal sentenced Nazi leaders to death under it.  (The treaty, of 1928, is better known as the Kellogg-Briand Peace Pact, after its promoters, Frank B. Kellogg, secretary of state under President Calvin Coolidge; and Aristide Briand, French foreign minister.)

            The U.S. resolution lists among its rationales “the threat to the national security and foreign policy....”  It wrongly states that the president has “authority under the Constitution to take action to deter and prevent acts of international terrorism,” implying that attacking countries will do so.  But haven’t our attacks and global presence caused violent anti-Americanism?

            Standing headlines say “America strikes back.”  The French news agency AFP has expressed the popular view that the bombings were “retaliation” (10-23-01).  Few consider the logic of killing Afghans to punish terrorism committed mostly by Saudi-Arabians.  But anyway, retribution is an unlawful war aim.  One columnist advocated bombing Moslem peoples, converting them to Christianity and killing their leaders (Ann Coulter, 9-13-01).

            In July 2001, two months before the terrorists struck the United States, U.S. officials told of plans to attack Afghanistan in October and replace its regime, a former Pakistani foreign secretary informed British Broadcasting Corporation (BBC Internet report 9-18-01).  Likewise Bush aims at replacing Iraq’s regime.  His objective in each case has been the “nation building” that he told voters he opposed – far from “self-defense.”

                 Lovinger is WALL’s founder and secretary, a journalist, and the author of The Penguin Dictionary of American English Usage and Style (2000).  Scott is a retired environmental health specialist.

War and Law League (WALL)
P.O. Box 42-7237, San Francisco, CA 94142