Should US Officers be prosecuted for participating in an “illegal War"?

[BrentWill4U]

Many of you have shown your support for 1LT Ehren Watada (http://www.thankyoult.org/ ) for refusing to go to Iraq. Many of you agree that the war is illegal, and therefore he has done the correct act by not taking part in it. However, if the war is illegal and he is right to not take part in it, should’t those who take part in it face some consequences for their participation in the war? Can they just use the defense that “I was just following orders”? Should they all face justice or should some of them be excluded?

[mike_c]

1. in a word-- yes they should be, IMO....

I doubt that many ever will be, but I agree that the logic is inescapable: if the war is a crime, then the folks involved in committing it are criminals. We don't prosecute just the conspirators for planning a bank robbery-- even the guy driving the getaway car is culpable.

I've been amazed by the ease with which this seemingly obvious truth remains firmly lodged in peoples' blind spots.

[BrentWill4U]

3. So in your perfect world..

That would mean everyone that has decided to go to Iraq? That would bring justice, in your mind?

[mike_c]

10. yes, for a START....

My "perfect world?" Perhaps you could tell us how crimes and the people who commit them should be viewed in your world?

1) Do you agree that people who participate in the commission of crimes should be culpable (and perhaps face punishment)?

2) Do you agree that the war against Iraq is a crime? The U.N. Charter, to which the U.S. is a treaty signatory, seems pretty clear in this regard-- the war against Iraq would be a war of aggression, a crime, unless authorized by the security counsel (it wasn't) or unless Iraq posed an imminent threat to the U.S.

But as I said, only for a start-- then there is the matter of prosecutions and reparations.

[BrentWill4U]

12. Okay..

1. Yes
2. No (Read my response below. It addresses this question)

[mike_c]

14. then there was no basis for war crimes prosecutions at Nuremberg...

...since Germany's war of aggression was "legal" under German legislation. Nuremberg SPECIFICALLY invalidates the position you're advancing re: 2. It says that crimes against peace supercede the sovereignity of individual nations. You cannot pass a law that makes aggressive war legal, not while remaining under treaty obligation to the United Nations Charter at the very least.

[BrentWill4U]

16. I didn't say I agreed with the two of the charges placed against Jodi..

He should not have been found guilty of planning the war or carrying it out. I agree with the French judge on this one, and believe that it was a miscarriage of Justice to find a military officer guilty of planning a war in which the civilian leadership supported. While he should have been hung for the war crimes he did commit (and was also found guilty of) those two charges are and were bogus. The fact is, that is the ONLY precedent there is for charging and convicting a military professional from carrying out the orders of the lawfully civilian government when it comes to the prosecution of a war. The fact remains that there is about 2000 years of precedent before that, namely things such as the Just War doctrine, that holds that professional soldiers should not be held accountable for the decisions of a legit civil government. If you start to go down that road, you are only a short road away from a military Junta. You HAVE to keep the military controlled by the ELECTED government because if you don't, it is a direct threat to the republic.

There also remains a "basis" for the Nuremberg trials. The other convictions were for war crimes, which a now fairly well defined. You NEVER have to follow an order to comment a war crime (i.e. Kill a noncombatant)

[mike_c]

19. you're dodging the important issue, however....

Do you agree with Justice Jackson that wars of aggression are implicitly crimes? Or do you mean that the only crimes possible are specific criminal acts committed within the context of battle-- the "war crimes" you reference? Are aggressive wars crimes no matter what, or are they absolved by legislation?

The question is central because there can be no criminal if there isn't a crime.

http://en.wikipedia.org/wiki/Crime_against_peace

In 1950, the Nuremberg Tribunal defined Crimes against Peace (in Principle VI.a, submitted to the United Nations General Assembly) as

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

For committing this crime, the Nuremberg Tribunal sentenced a number of persons responsible for starting World War II. One consequence of this is that nations who are starting an armed conflict must now argue that they are either exercising the right of self-defense, the right of collective defense, or - it seems - the enforcement of the criminal law of jus cogens. It has made formal declaration of war uncommon after 1945.

During the trial, the chief American prosecutor, Robert H. Jackson, stated:

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

on edit-- with respect to U.S. law, the Charter of the United Nations is also relevant:

The United Nations Charter says in Article 1:

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

The interdiction of aggressive war was confirmed and broadened by the United Nations' Charter, which states in article 2, paragraph 4 that

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.


Article 33

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, 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 of their own choice.

The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.


Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

[BrentWill4U]

20. Illegal wars..

are illegal. However, the a professional military officer should not be held accountable for prosecuting an illegal war, which is holding with the vast majority of precedence when it comes to this issue. (With the admitted exception of the Jodi convention). If you want to find a criminal, the Criminal is the civilian government that decided to fight the war. However, to use your standard would mean that the military would not be truly under civil control and that is a dangerous place to go, given that the military is the only institution in society that could overthrow the government and put itself into power. That being said, a profession military man or woman also agrees to uphold an ethical code. If they violate that, even if they are ordered to violate it, they should be rightfully punished. (An example would be those officers who were ordered by Hitler to carry out his final solution)

[mike_c]

26. still dodging....

Crime against peace (quoted from above):

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(emphasis added)

Do you mean to suggest that military officers are not responsible for "initiation or waging... war?" The law seems quite clear to me. It would also seem to apply to EVERYONE who wages a war of aggression. Just following orders is not any defense.

You've asked repeatedly for citations justifying this position, and you've been given a number of them. How about citing some legal justification for your contention that congress can pass legislaion overriding international treaties prohibiting aggressive wars that the U.S. is signatory to, such as the Nuremberg Principles and the Charter of the United Nations?

[cali]

49. In my perfect world

there are no purges. And essentially what you're suggesting is precisely that.

[mike_c]

51. is prosecuting bank robbery or assault "purging" the criminal class?

At what level does accountability for criminal conduct become a "purge?"

[cali]

89. Can't you come up with

a better comparison than that one? The flaws are glaring: The U.S. military is a legal entity- the corps of bank robbers, is not. I'm not suggesting that top brass in the Pentagon couldn't be held culpable, but all officers? Ridiculous.

[mike_c]

100. the Third Reich was also a "legal entity"...

...but that didn't protect them from war crimes prosecutions. I think you're dodging the issue too-- if the act is a crime, are not all the people who commit it criminals?

I realize that no one wants to think that their institutions are engaged in committing a crime, but denial won't change it. The question remains: if the act is a crime, are not the people who commit it criminals?

[cynatnite]

18. So the guy that gets deployed with his unit should be prosecuted

no matter if he or she is a medic or works in supply.

[mike_c]

30. look, clearly that isn't going to happen....

First, it would be an utter waste of resources to even try. But I don't see how anyone could argue that they shouldn't be without being willing to turn a blind eye to a war crime.

[cynatnite]

31. Getting deployed isn't a crime...

It's what they do while on deployment. If a guy shoots down unarmed civilians he should be prosecuted for it.

[mike_c]

32. read the rest of this thread and reply there if you don't mind...

I don't want to repeat the same arguments all over again, but I'd be happy to discuss in the context of the thread. Can you read and comment in the discussion just above this sub-thread?

[cynatnite]

37. Sure, I read it before replying...

I've thought about this a great deal. As a vet coming from a family of vets it's a tough issue and not easy to navigate because of the politics involved. The run-up to the war was almost completely about politics with the data-mining the bush administration did.

By your standards every soldier who set foot on Iraqi soil, no matter their reasons should be prosecuted. I find that not only patently absurd, but also illogical. Do you want to prosecute a medic, a doctor or a nurse for war crimes because their unit was deployed to Iraq? These people save a hell of a lot of civilian lives as well. If you're going to paint such a wide brush stroke, you'll have to include them and others who don't like bush and are against the war plus continue to wear a uniform.

What about those who have served, but currently are not? Are they included? What about those vets who are running for office and served in Iraq? Toss them in as well.

Under the constitution the President can send troops to war. Period. Every person who takes the military oath knows it and if they don't, they have no business putting on a uniform.

[mike_c]

41. which part of the law don't you understand?

I'll quote it for you again, since you seem unwilling to address it up thread where it already appears:

http://en.wikipedia.org/wiki/Crime_against_peace

In 1950, the Nuremberg Tribunal defined Crimes against Peace (in Principle VI.a, submitted to the United Nations General Assembly) as

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

For committing this crime, the Nuremberg Tribunal sentenced a number of persons responsible for starting World War II. One consequence of this is that nations who are starting an armed conflict must now argue that they are either exercising the right of self-defense, the right of collective defense, or - it seems - the enforcement of the criminal law of jus cogens. It has made formal declaration of war uncommon after 1945.

During the trial, the chief American prosecutor, Robert H. Jackson, stated:

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

on edit-- with respect to U.S. law, the Charter of the United Nations is also relevant:

The United Nations Charter says in Article 1:

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

The interdiction of aggressive war was confirmed and broadened by the United Nations' Charter, which states in article 2, paragraph 4 that

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.


Article 33

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, 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 of their own choice.

The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.


Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Also recall Article VI (2) of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

(emphasis added)

[cynatnite]

45. The President still has full control over the military...

that's just the way it is.

As I have said before...being deployed is not a crime...it's what's done while on deployment that matters.

[mike_c]

48. "that's just the way it is..."

...is the last resort of someone without a coherent argument to make.

See also: http://www.counterpunch.org/mosqueda02272003.html

[cynatnite]

52. So you don't know about this:

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

http://www.law.cornell.edu/constitution/constitution.articleii.html#section2

Pretty plain words, IMO.

Rather than looking to punish those in uniform, why not focus on those in power who have abused and murdered our military?

[mike_c]

63. I do know about this....

http://www.counterpunch.org/mosqueda02272003.html

The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.

(snip)

As Hamilton Action for Social Change has noted "Under the Nuremberg Principles, you have an obligation NOT to follow the orders of leaders who are preparing crimes against peace and crimes against humanity. We are all bound by what U.S. Chief Prosecutor Robert K. Jackson declared in 1948: he very essence of the Charter is that individuals have intentional duties which transcend the national obligations of obedience imposed by the individual state." At the Tokyo War Crimes trial, it was further declared "nyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent commission of the crimes."

more@link

[cynatnite]

64. Well, if you want to go the route of lawful vs. unlawful orders...

deployments don't count. It's what a person does at those deployments. If they are ordered to shoot an unarmed civilian...that is an unlawful order and they are obligated to not follow through with it.

[mike_c]

67. of course deployments "count..."

Where did you get that idea? Personnel deploy under orders.

[cynatnite]

72. No they do not.

Being deployed by the government to go to war does not count. It's ludicrous to even believe it counts. It's no where in the ballpark when it comes to lawful and unlawful orders.

Being deployed does not constitute an unlawful order.

[mike_c]

74. well, I've provided lots of citations outlining the relevant laws....

Perhaps you could provide one justifying that statement. You might start by actually reading the CounterPunch article linked all over this thread. Here's the link again: http://www.counterpunch.org/mosqueda02272003.html

It specifically addresses orders to deploy.

[cynatnite]

76. I read it a second time...

Sometimes I'll miss an important point when it comes to long articles. No where did I see any specific reference to deployment orders. There was a lot of asking members of the military to follow their conscience.

Unlawful orders will not apply to deployments. Unlawful orders are specific to things like an officer telling a grunt to shoot an unarmed civilian and stealing, for example.

I understand the arguments you make about the legality of the war. Hell, I think it's illegal as hell, but to punish a military for being deployed is just patently wrong.

Too much energy gets spent on vilifying service members who have the audacity to fulfill the oath they made the day they signed up. What should be more important is bringing those folks home who are doing the bleeding and dying for this atrocious war.

What also should be more important is going after the bastards that have abused and murdered our military...the civilian leadership. They are at fault and that's who should be held accountable.

[mike_c]

77. the entire article is about resisting deployment....

If the decision is made that the orders to begin or continue the war are illegal, then each bomb dropped will be a war crime, each bomb loaded will be a war crime, each support effort will be aiding and abetting a crime. Each death, especially that of a civilian, will be a war crime (not collateral damage). If the war itself is a crime than all efforts that aid in that effort are criminal. Given that over 50% of the people of Iraq are children under the age of 16, this will be a war against children and a crime against humanity. The decision to obey one's oath and not follow illegal orders is no doubt a difficult one, and one that will probably result in punishment from those who issue the illegal orders. One should not take this issue lightly, just as one should not take the decision to follow an illegal order lightly. There will no doubt be consequences for those who follow their conscience. It is the duty of all who recognize the illegality of the war to support all resisters.

[cynatnite]

85. I guess I read it differently...

It wasn't specific in deployment orders, but one can come away thinking this opinion piece means what you are asserting.

This person does think the same as you...setting foot in Iraq is criminal.

The fact is the president has the authority, given to him by the founding fathers, over the military. Another fact: those who make the decision to put on the uniform do so with the understanding they may be called to fight and give their lives. Regardless of UN, international law, Nuremberg or whatever else you care to mention can't change those facts.

I think spending my time fighting the ones who sent our military to war is better spent than wanting to prosecute 140,000 men and women for war crimes...that's not counting the ones that have already served there.

The military does not make policy decision. They are under the constitution to do what their Commander-In-Chief orders. Invading Iraq was a policy decision. The Generals and troops beneath them are required to carry it out despite what you or the rest of the world thinks. But when you enter the world of unlawful orders that's a completely different animal even though you may not see it that way.

Our military is apolitical. It's why this country has remained as it is for the last 200+ years. Were it not for that, we probably would have found ourselves under a dictatorship ages ago. To want and to expect the military to put aside what is a major key to unit cohesiveness is not only short-sighted...it's wrong.

[sleipnir]

86. Yes, they are participating what many int'l lawyers say is an illegal war.

"Just following orders" sure didn't fly with the Nazi's, nor will it fly with another other imperial invasion.

Honestly, you can sit out the war in the Brig, but...well...very, very few are going to follow their conscience that far.

They can only be prosecuted if an international tribunal is convened, and then they must arrest the suspects.

They truth is, yes, they can be prosecuted, and maybe some should, but really, it's probably not going to happen unless a bizarre set of circumstances occurs.

[HereSince1628]

2. Well, the prosecution should start at the top and work its way down

But that would mean jeopardizing most of the Congress as well.

So, if accountability comes it won't include a single guilty politician or administrator. Indeed, they'll either pass a law or make executive orders that absolves themselves.

[Robbien]

13. Yup. That is my answer, only if Bush and the neocons go down first

The military did carry out the orders and there is some blame to that. But the people giving the orders should go first.

[SPKrazy]

4. That's A Hard Road To Go Down

it would involve a lot of prosecutions

but if it were to be found in an international court of law that this war was illegal, and the prosecutions started, where would they stop?

I say go for the commanders at the top that planned, and executed the war.

Save the prosecutions for them, otherwise you would essentially dismantle the military.

Surely you aren't for that?

[BrentWill4U]

7. No, this isn't a position that I support..

In my view, the war is not illegal under US Law, given that you did have congressional approval. I think that it was a very stupid and very sad mistake. However, if you start prosecuting the military for this, you are basically asking to military to act on what it "feels" is right and that, my friend, is a slippery slope to a military dictatorship. However, I am also very interested in what others thinks. If one comes to the conclusion that it is an illegal war and it is right for someone in the military to refuse to go, then I think the inverse would have to be true for the argument to remain logical. You would have to conclude that for justice to come, those in the military that did not refuse orders should face justice.

[cynatnite]

21. Agreed...

I also see the run-up to the war as poltically motivated. If a soldier is to be prosecuted for taking part in a war he was sent to by his superiors and civilian leadership, the politics would have to be pulled into it as well. I don't see any way of getting around this and military cohesiveness depends on being apolitical.

What should be prosecuted is when a soldier commits atrocities such as murdering an innocent civilian.

[Sherman A1]

8. Who is the Commander in Chief?

That would be the first "officer" to prosecute. Then work your way down the chain of command. Not everyone would or should be prosecuted, but certainly senior leadership. Even at Nuremberg, not every soldier was taken to trial, but the senior officers and officials certainly were brought before the tribunal.

[Nikki Stone 1]

5. Prosecute the elected officials.

Those required by the military to go have nowhere near the choice that the elected officials do.

[Zhade]

25. But, of course, also prosecute those who individually commit war crimes.

Like, say, raping teens and killing them and their families.

[Nikki Stone 1]

43. And don't forget the guys from CACI

and other privateers. They were giving a lot of the orders.

[Turbineguy]

6. If they are

than the Republicans will have succeeded at destroying the US.

If you are prosecuted for obeying the orders of the civilian elected government because it is determined afterward that the invasion was illegal because it was based on lies (of that same civilian government), who will serve in the military afterwards?

People can be prosecuted for giving and carrying out illegal orders (such as murdering non-combatants or torture).

I seem to recall the only Nazi soldiers prosecuted in Nurenburg were involved with the deathcamps and other illegal acts.

What is suggested here is the sort of stuff that Stalin would do.

On Edit: Bush, Cheney and certain civilian government officials are fair game however.

[BrentWill4U]

11. Actually, not true...

Alfred Jodl was found guilty of a "conspiracy to commit crimes against peace" and "planning, initiating and waging wars of aggression". He was hanged for those reasons.

[Turbineguy]

108. This is what I like about DU

If ever I get my facts wrong, there is always somebody to step forward and help out.:pals:

[WhiteTara]

9. above the grade of Captain. Maybe above Major

but by then they have input. Generals and Colonels for sure.

[BrentWill4U]

27. I know the 0-3s are...

Breathing a sigh of relief. But that O-5 Doctor that saves lives or puts limbs back on soldiers, must be sweating bullets.

[WhiteTara]

107. especially the docs who helped

with the interrogations.

[orwell]

15. Anyone who follows an unlawful order...

...could and should be prosecuted. It violates the UCMJ.

[BrentWill4U]

17. Really..

Can you point to the Article that says you don't have to go to war when the President and Congress approves it?

[mike_c]

22. here's a good reference....

http://www.counterpunch.org/mosqueda02272003.html

The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.

During the Iran-Contra hearings of 1987, Senator Daniel Inouye of Hawaii, a decorated World War II veteran and hero, told Lt. Col. Oliver North that North was breaking his oath when he blindly followed the commands of Ronald Reagan. As Inouye stated, "The uniform code makes it abundantly clear that it must be the Lawful orders of a superior officer. In fact it says, 'Members of the military have an obligation to disobey unlawful orders.' This principle was considered so important that we-we, the government of the United States, proposed that it be internationally applied in the Nuremberg trials." (Bill Moyers, "The Secret Government", Seven Locks Press; also in the PBS 1987 documentary, "The Secret Government: The Constitution in Crisis")

Senator Inouye was referring to the Nuremberg trials in the post WW II era, when the U.S. tried Nazi war criminals and did not allow them to use the reason or excuse that they were only "following orders" as a defense for their war crimes which resulted in the deaths of millions of innocent men, women, and children. "In 1953, the Department of Defense adopted the principles of the Nuremberg Code as official policy" of the United States. (Hasting Center Report, March-April 1991)

(snip)

By November of 2002, 315 law professors had signed a statement entitled "A US War Against Iraq Will Violate US and International Law and Set a Dangerous Precedent for Violence That Will Endanger the American People."

Other legal organizations such as the Lawyers' Committee on Nuclear Policy and the Western States Legal Foundation have written more extensive reports, such as that by Andrew Lichterman and John Burroughs on "War is Not the Path to Peace; The United States, Iraq, and the Need for Stronger International Legal Standards to Prevent War." As the report indicates "Aggressive war is one of the most serious transgressions of international law." In fact, at the Nuremberg trials, the issue was not just individual or collective acts of atrocities or brutal actions but the starting of an aggressive war itself. U.S. Supreme Court Justice Robert L. Jackson stated,

"We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy." (August 12, 1945, Department of State Bulletin.)

[orwell]

23. Thanks...

...beat me to it...

[BrentWill4U]

24. In the Iran contra Scandal..

He violated a law passed by congress. During the current war, Congress and given its blessing and there is no US law that prevents the US from going to war with Iraq. As far as your other example, a US military officer is not accountable to the UN for prosecuting the war. If anyone is accountable for breaking international law, the the civil leadership is accountable for it. (For the reasons outlined earlier)

[Zhade]

28. False. Congress never declared war in this instance.

And b*s* violated the requirement of the (admittedly thin and loophole-filled) IRW to return to Congress, as well as obtain UN approval.

The invasion and occupation was, and remains, illegal.

[BrentWill4U]

56. They authorized the use of force..

Congress hasn't declared war since WWII. They have however, authorized the use of force. This is not illegal, unless you want to declare all use of force by the US military since WWII as illegal, even the just use of force, such as stopping ethic cleansing in Kosovo under Clinton.

[Zhade]

81. Only with conditions, which b*s* did not meet.

Hence, this "war" is illegal.

[BrentWill4U]

106. Which would those be?

If this war is illegal, so was Kosovo and Clinton should get the same treatment as Bush. You might as well be intellectually consistent.

[mike_c]

29. the Iran contra scandal is used as an example, not the point....

Now you're being disingenuous. The point of the material presented at that link is that the UCMJ is in fact somewhat conflicted about the issue of obeying the president and congress if it orders you to deploy-- there is wide agreement that the order is illegal if the war is illegal. And the UCMJ is clear on the disposition of illegal orders.

[BrentWill4U]

61. Actually, there isn't much disagreement within the military itself..

The military pretty much agrees with what I am saying. You have a duty to go to war when you are told and you also have a duty to disobey orders that are illegal war crimes. In FACT I would say that there is virtually no disagreement in the military itself besides a few cases of individual soldiers who decide to take a different view and who will in fact be punished for it.

[mike_c]

65. but the question remains: what if the war itself is illegal...?

If the war itself is a crime-- in an absolute, statuatory sense, not in a vague moralistic sense-- the Nuremberg Principles would seem to apply. One need not commit additional acts in order to be guilty of war crimes:

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

--Rob't H. Jackson

All other war crimes are encompassed by commission of the worst crime of all-- a war of aggression.

[BrentWill4U]

66. Again..

I think I have already given my answer. NO.

[cynatnite]

70. And others will argue to the legality of the war using the UN resolutions

A series of UN security council resolutions provides the legal basis for military action against Iraq, the government's top law adviser said today. The attorney general, Lord Goldsmith, said in a written parliamentary answer that the authority to use force against Iraq stemmed from the combined effect of resolutions 678, 687 and 1441.

Lord Goldsmith stated: "All of these resolutions were adopted under chapter VII of the UN charter which allows the use of force for the express purpose of restoring international peace and security."

http://www.guardian.co.uk/Iraq/Story/0,2763,916078,00.html

The reality is there will never be a clear legal vs. illegal argument to the war. It's immoral to be sure.

[mike_c]

71. and Lord Goldsmith has been embattled to explain that opinion...

...ever since. It has been widely discredited. I'm surprised to see it quoted to justify the war against Iraq on DU.

[cynatnite]

73. I'm sure he has...

I'm saying the arguments for the legality of this war still stand in a lot of people's eyes and they continue using them to this day.

There's no way to justify the war in Iraq and I don't see anyone attempting to do that.

[Phoebe Loosinhouse]

33. this is a bs thread and anyone who responds to it should have their

heads examined.

[mike_c]

36. now there's a well reasoned response....

:shrug:

[Phoebe Loosinhouse]

40. and actually it is. Unlike anyone else's.

I don't even know where to begin.

[BrentWill4U]

69. You do know..

You did respond to the thread...

[Phoebe Loosinhouse]

78. yes, I am trying to smash through to those who have been overcome

by the noxious gases of your post.

[BrentWill4U]

105. And you are doing such a fine job

[cigsandcoffee]

34. Of course not.

America's goals and motivations in Iraq are benevolent, even if woefully misguided. I know I'll get flak for that comment, so I'm pre-warning would-be flamers that I just can't be bothered to debate anymore about our secret desires for Iraqi oil or Middle Eastern conquest. I take America's stated goals there at face value - to depose a dictator and establish a more friendly and equitable system.

Yes, that was a disaster of a pipe dream and woefully attempted by clumsy nincompoops, but it's a long way from ethnic cleansing or some other kind of genocide that would deserve such measures.

[mike_c]

35. it's a benevolent war of aggression!

Oh man. :rofl: You've outdone yourself.

[cigsandcoffee]

38. As I said, feel free to disagree.

I remember Saddam being aggressive and a pain in the ass of the world for at least the last 16 years. Bush was not the first President who considered deposing him. He may have been the only one crazy enough to try it (and thus own the aftermath), but the idea was far from novel.

Or are you arguing that America's goals amount to genocide or some other crime against humanity?

[mike_c]

39. yes, now that you mention it....

Read the first sub-thread up top if you please. It provides the legal justification for the contention that the war against Iraq is indeed a crime against humanity by definition. One doesn't even have to stretch. Wars of aggression are crimes against humanity. It doesn't matter how much the president dislikes the other guy.

[cigsandcoffee]

42. And it's debatable that this was a war of aggression...

...or a war to depose an inhuman dictator. I think you'd have a hard time proving your case that Saddam didn't have it coming.

It was a bad idea, but does not amount to a crime against humanity.

[mike_c]

46. thankfully, we need not debate-- there is a DEFINITION...

...of "wars of aggression" under U.S. law. They are wars which are not: 1) in self defense, or 2) authorized by the U.N. Security Counsel (presumably to enforce U.N. mandates).

[cigsandcoffee]

82. By that definition, Bosnia was a war against humanity.

The UN would not approve force, which is why NATO did the dirty work.

Care to change your definition?

[mike_c]

87. it's not MY definition, so I cannot change it....

That is the definition of aggressive war under the Charter of the United Nations. Regarding Bosnia, I think you're correct, however-- and it's a big however-- someone would have to bring the charge and make the case, presumably at The Hague. This appears to be one of those cases where intervention, although aggressive war by definition, meets with general approval, much like intervention in Rwanda or Darfour would likely be regarded. My personal feeling is ambivalence-- ultimately, I suppose I have to oppose unilateral invasions, even if done for humanitarian reasons, but like the majority, I'm happy that Bosnia turned out as it did. It's a contradiction, I admit.

However, I don't think it has much to do with Iraq unless you want to make the argument that since we tolerated Bosnia, we must tolerate the war against Iraq. I don't buy that argument-- they're independent events, and past errors should not excuse future ones. And the nature of the two events is vastly different.

[cynatnite]

90. Well, Clinton knew enough to have smart people...

and to let them fight the war the way it should have been. He made sure he had a clear exit strategy and that it wouldn't be a long drawn out conflict, too. He was very thoughtful on that, IMO.

Unlike bush who went to war faster than my seven year old runs to the bathroom.

[cigsandcoffee]

93. I fully agree. One might argue that ground troops...

...might have prevented some of the killing, but the plan was realistic, narrow, and feasible. It worked.

I am not arguing that Bosnia was conducted poorly. I am merely arguing that I think toppling Saddam was as well intentioned as toppling Milosovich. But leadership matters, and that's why Iraq is in tatters today.

[cynatnite]

95. Even if it was a democrat president...

I think I would still be opposed to it. Even if Saddam had WMDs and had ties with Al Quaeda, I think it still would have been a mistake. Most of the troops probably would be home by now, but I don't believe it would have been worth it.

We'd still be combating secetarian violence and the soldiers would still have targets on their backs as they do now. With Iran and Syria next door, we'd still have our hands full with their sponsering terrorism.

[cigsandcoffee]

98. The problem I have with that is this:

There were essentially three choices for Iraq, and all of them were bad. So which one would provide the most help to the suffering people there?

Choice #1: Continue as we were going, and keep Saddam "in his box." This meant the continuation of those crippling sanctions that did much to bring misery to the Iraqi people, and little to affect Saddam's standard of living. It did keep him from developing a greater arsenal, but at what cost?

Choice #2: End the sanctions, and allow more goods and supplies in to the country. A swell choice, but making it ran the risk that Saddam would turn Iraq in to another North Korea, except one with oil wealth. He would have well funded weapons programs and no impedance to supplying them.

Choice #3: Depose Saddam, and help Iraq to modernize under a representative government. This would seem to bring the most benefit to the Iraqi people while removing a man who had shown himself to be both unduly aggressive and able to use horrible biological weapons on civilian populations. The only catch was preventing the country from descending in to bloody sectarian violence, and the morons in charge of the effort were both unprepared and unable for the task at hand.

In my opinion, choice #3 made the most sense. Unfortunately, it was carried out by idiots, and we're stuck with what we've got today.

[cynatnite]

101. I agree...it was carried out by morans...

but I don't honestly see how the US could have extracted themselves in a way that wouldn't have led to another Afghanistan with terrorists growing in their backyward. Either way, Iraq would still be their 'training ground'.

Even bush sr. was smart enough to know what would happen if we had gone all the way in the first gulf war. With the smartest and the most well-prepared of people, I do think the secetarian violence would have happened once Saddam was out of the way no matter what.

[cigsandcoffee]

103. I think it would have taken somebody with the personality....

...of a Bill Clinton to (first) get more countries on board and commited to the goal, and (second) to make the rebuilding an international affair. Bush appeared to believe that the Reagan/Thatcher model would work for him, but even Reagan/Thatcher weren't crazy enough to get too sunk in the Middle East.

I think a large multinational force under UN or NATO control (and I mean large) might have halted the sectarian violence enough for Iraq to get on its feet and rebound in to something that looks a bit like Turkey or even Saudi Arabia. But now we'll be lucky if it rebounds in to something that looks like an Iran without a nuclear ambition.

Balls and arrognance can look a lot alike in Presidents. Having the first has paid off for some, and having the second has caused misery for quite a few. Bush mistook his arrogance for balls, and he didn't have the personality there to bail him out.

[cigsandcoffee]

91. Bosnia has not turned out all that well, really.

It's still a miserable and divided place, and a hotbed of radical Islamism.

The reason that I point it out is to illustrate how confining that definition is. If the UN can not be motivated to authorize force, the world would have to sit by and tolerate genocide (such as we are shamefully doing now in the Sudan).

I do not like what is happening in Iraq. The sheer arrognace of this administration coupled with their epic incometence has essentially doomed our efforts there. But I do not think that going after Saddam was a crime against humanity, and do not subsicribe to the plethora of nefarious motivations charged against this country. I think the action there was well meaning in its foundations, but carried out by utter incompetents.

[mike_c]

96. I've linked this statement so many times that my browser...

...can find it on its own:

"We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy."

U.S. Supreme Court Justice Rob't. H. Jackson

We must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war.

It doesn't matter what anyone thinks about Saddam Hussein. No grievances or policies will justify resort to aggressive war.

[cigsandcoffee]

99. Then by that logic, the world will have to let murder in Sudan continue.

Apparently, the world (and this President) agrees with you. I wonder if the folks dying in the Sudan do.

I don't mean to say that you have to support the war in Iraq if you supported the one in Bosnia. You clearly don't. What I am saying is that it's just too confining to adhere to the definitions that you've provided, because that makes just about any intervention (such as a potential one in the Sudan) a crime against humanity. How can ending a genocide with aggression be a crime against humanity?

[mike_c]

102. now you're asking me to debate the merits...

...of vigilante justice. I'm not going to go there tonight. We are a nation of laws, many of which are likely unjust. I routinely break several of them. I'm sure you do too. But unless we want to justify anarchy, we must accept that the laws we've created are the foundation of our social structure, and we ignore them at some peril. Nations in particular are beholden to the law, because nations provide the institutions that enforce the law, and if despotism is to be avoided, we must first insist that government act in accordance with it's own laws. That's what this whole discussion has been about-- not my moral objections to the war against Iraq, or my distaste for the Bush administration that brought us to this point. It's been about the law, and whether the precident we established at Nuremberg means anything. It won't be worth spit it we ignore it.

[cigsandcoffee]

104. Fair enough, but IMO, if a law prevents us from stopping...

...genocide, then it isn't worth the paper it's written on. If some country were to flaunt that law in the case of Darfur, and send in a military force to end the bloodshed there, I would stand up and applaud them all the way to the Hague. I doubt I'd be alone.

[cali]

55. Benevolent?

Sorry, that's so absurd, I can't believe it. Even if you buy into your explanation, remaking a country into what you believe it should be, imposing your will on an entire nation, is hardly benevolent, and blithely discarding the reality that Iraq is an oil rich nation, is naive, to say the least.

[cigsandcoffee]

83. We've imposed our will on countless countries throughout history.

...and remade a few in our image. We wrote Japan's Constitution, for God's sake.

If we'd wanted Saddam's oil, it would have been far cheaper to buy it. I don't subscribe to the multitude of evil motives ascribed to taking out Saddam - he was a rotten son of a bitch, and you'll have a hard time convincing me that he didn't get what he deserved.

What I think was the big mistake was inept planning, inadequate resources, a gross miscalculation of the resulting ethnic strife in the wake of a power vacuum, and an ongoing failure to address these mounting problems. But I do not think the motives and goals themselves for toppling Saddam were nefarious.

Since you clearly disagree, I'd be interested to hear why and how.

[mike_c]

92. ah, but it's rapidly becoming a seller's market....

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x1830680

[Zhade]

79. Then you are completely ignorant about geopolitics.

Which, now that I think about it, explains your ignorant remarks about the Lebanese situation.

[cigsandcoffee]

84. Argue with substance.

Or piss off. Thanks.

[Zhade]

110. I can't, that's above your level of discourse.

NT!

[Cleita]

44. Only at the very top, the Secretary of Defense and the

Commander-in-chief.

Something just struck as very ludicrous as I was typing this. Shouldn't the Secretary of Defense and Commander-in-chief be career military? How did those two civilian bozos get into a position to misuse our military?

[BrentWill4U]

47. Civil oversight of the military..

A military that doesn't have civil control is dangerous. I believe that you have to be out of uniform for around 10 years to be Sec. Defense and even then it is VERY rare for a former military gut to get that post.

[Cleita]

60. Obviously it doesn't work. Shouldn't Congress be providing

the oversight anyway? I thought that's why Congress was supposed to declare war, to keep the wanna be dictators and kings on a leash.

[BrentWill4U]

68. The last time I checked....

Congress didn't have many guns. Kind of hard for them to stop the military from running things if they really, really, really, really wanted to. That is why a military that doesn't take orders about where to go and when is a very very very dangerous thing. To go to war is a political decision made by the American people through the people they elected. It is VERY dangerous to start to give that authority to the military.

[cynatnite]

75. The President has authority over the military...

He can send them wherever he wants for whatever reason. The founding fathers made that decision. It makes his case stronger when he gets approval from congress whether it's a declaration or congressional authority.

[ThomWV]

50. Absolutly Not

And here is the reason. Once every month we the people authorize every single member of our military to continue doing exactly what they are doing. We do so by paying them. They are paid with money that passes to them from us through the Congress and the President withwout interdiction by the court on grounds of unconstitutionality.

[mike_c]

54. the same was true of war criminals prosecuted after WWII....

They were paid by their nations, to commit acts legalized by their legislatures. Nuremberg supposedly set to rest the idea that the people of a nation can "authorize" aggressive wars.

[TomInTib]

53. Like it or not, this is not an "illegal war"

Congress gave bush the power to get into whatever mess he deemed appropriate.

As far as Watada goes, a man has every right to change his mind.

I spent years in combat and I will guarantee you right now that I never wanted anyone with me who had any misgivings about killing people.

God Bless Ehren Watada.

[mike_c]

58. so was german aggression during WWII legal as well...?

If so, Nuremberg was a travesty. Congress cannot legislatively legalize a war of aggression. Lots of comments about this up thread.

[TomInTib]

62. I don't know, I never gave a shit about WWII.

But I do know that Congress gave bush a green light to do whatevr he wanted on this one.

Up-thread comments are only opinions, this is a legal action. This has never been a declared war.

Unfortunate - but true.

Maybe there is a Congressional Law expert amongst us who could comment. Or maybe I just missed it.

Don't get me wrong, I think that the entire admin should be lined up against the wall. And I would gladly volunteer to be the last guy those fuckers ever saw.

[Zhade]

80. Actually, that's inaccurate. b*s* did not fulfill the terms of the IRW.

He did not go back to Congress and did not obtain UN approval.

The "war" is illegal.

[cynatnite]

88. I do think if bush would have gone back to congress...

a second time, perhaps it would put the argument to rest.

Then again, I'm not positive he would have gotten enough votes to consider it a mandate. (which in bush's eyes winning by one vote would have been a mandate)

[mike_c]

94. but it wouldn't matter one way or the other....

The Third Reich had a legislative mandate. One of the big deals about Nuremberg is that WE established the principle that nations cannot legislate authority to commit crimes against humanity.

...at the Nuremberg trials, the issue was not just individual or collective acts of atrocities or brutal actions but the starting of an aggressive war itself. U.S. Supreme Court Justice Robert L. Jackson stated,

"We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy." (August 12, 1945, Department of State Bulletin.)

No policies will justify resort to aggressive war. The IWR is utterly bankrupt.

[cynatnite]

97. I think the debate over the legality wouldn't be what it is...

if he had gone back a second time. The intelligence they cherry-picked was used as a tool so they can say 'we're doing it out of self-defense' and those that chose to believe it didn't view it as an aggressive war because of that. If bush had gone back a second time, I do believe (and I could be speculating in the land of naivete') he would have had to come up with a hell of a lot more than the worthless intelligence he used.

It's probably inevitable that bush would still have dragged this country into war no matter what.

[Crabby Appleton]

57. Congressional authorization

Public Law 107-243

[mike_c]

59. not legal under U.S. and international law...

http://www.counterpunch.org/mosqueda02272003.html

The vaguely worded resolution passed by the Congress in October was both illegal and an act of cowardice, as noted by Senator Robert Byrd of West Virginia. Byrd's remarks were made on the floor of the Senate on October 3, 2002. In part he said:

"The resolution before us today is not only a product of haste; it is also a product of presidential hubris. This resolution is breathtaking in its scope. It redefines the nature of defense, and reinterprets the Constitution to suit the will of the Executive Branch. It would give the President blanket authority to launch a unilateral preemptive attack on a sovereign nation that is perceived to be a threat to the United States. This is an unprecedented and unfounded interpretation of the President's authority under the Constitution, not to mention the fact that it stands the charter of the United Nations on its head."

more@link

[porphyrian]

109. Start with the Commander in Chief.

Ultimately, no one is more responsible, and anything less is giving the traitorous fuckhead a pass.