Obama’s Wars ARE Illegal

By Marjorie Cohn, afterdowningstreet

President Obama accepted the Nobel Peace Prize nine days after he announced he would send 30,000 more troops to Afghanistan. His escalation of that war is not what the Nobel committee envisioned when it sought to encourage him to make peace, not war.

In 1945, in the wake of two wars that claimed millions of lives, the nations of the world created the United Nations system to “save succeeding generations from the scourge of war.” The UN Charter is based on the principles of international peace and security as well as the protection of human rights. But the United States, one of the founding members of the UN, has often flouted the commands of the charter, which is part of US law under the Supremacy Clause of the Constitution.

Although the U.S. invasion of Afghanistan was as illegal as the invasion of Iraq, many Americans saw it as a justifiable response to the attacks of September 11, 2001. The cover of Time magazine called it "The Right War." Obama campaigned on ending the Iraq war but escalating the war in Afghanistan. But a majority of Americans now oppose that war as well.

The UN Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense or when authorized by the Security Council. After the 9/11 attacks, the council passed two resolutions, neither of which authorized the use of military force in Afghanistan.

“Operation Enduring Freedom” was not legitimate self-defense under the charter because the 9/11 attacks were crimes against humanity, not “armed attacks” by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers hailed from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after 9/11, or President Bush would not have waited three weeks before initiating his October 2001 bombing campaign. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the UN General Assembly.

Bush's justification for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists, even though bin Laden did not claim responsibility for the 9/11 attacks until 2004. After Bush demanded that the Taliban turn over bin Laden to the United States, the Taliban’s ambassador to Pakistan said his government wanted proof that bin Laden was involved in the 9/11 attacks before deciding whether to extradite him, according to the Washington Post. That proof was not forthcoming, the Taliban did not deliver bin Laden, and Bush began bombing Afghanistan.

Bush’s rationale for attacking Afghanistan was spurious. Iranians could have made the same argument to attack the United States after they overthrew the vicious Shah Reza Pahlavi in 1979 and the U.S. gave him safe haven. If the new Iranian government had demanded that the U.S. turn over the Shah and we refused, would it have been lawful for Iran to invade the United States? Of course not.

When he announced his troop “surge” in Afghanistan, Obama invoked the 9/11 attacks. By continuing and escalating Bush’s war in Afghanistan, Obama, too, is violating the UN Charter. In his speech accepting the Nobel Peace Prize, Obama declared that he has the "right" to wage wars "unilaterally.” The unilateral use of military force, however, is illegal unless undertaken in self-defense.

Those who conspired to hijack airplanes and kill thousands of people on 9/11 are guilty of crimes against humanity. They must be identified and brought to justice in accordance with the law. But retaliation by invading Afghanistan was not the answer. It has lead to growing U.S. and Afghan casualties, and has incurred even more hatred against the United States.

Conspicuously absent from the national discourse is a political analysis of why the tragedy of 9/11 occurred. We need to have that debate and construct a comprehensive strategy to overhaul U.S. foreign policy to inoculate us from the wrath of those who despise American imperialism. The "global war on terror" has been uncritically accepted by most in this country. But terrorism is a tactic, not an enemy. One cannot declare war on a tactic. The way to combat terrorism is by identifying and targeting its root causes, including poverty, lack of education, and foreign occupation.

In his declaration that he would send 30,000 additional U.S. troops to Afghanistan, Obama made scant reference to Pakistan. But his CIA has used more unmanned Predator drones against Pakistan than Bush. There are estimates that these robots have killed several hundred civilians. Most Pakistanis oppose them. A Gallup poll conducted in Pakistan last summer found 67% opposed and only 9% in favor. Notably, a majority of Pakistanis ranked the United States as a greater threat to Pakistan than the Taliban or Pakistan’s arch-rival India.

Many countries use drones for surveillance, but only the United States and Israel have used them for strikes. Scott Shane wrote in the New York Times, “For the first time in history, a civilian intelligence agency is using robots to carry out a military mission, selecting people for targeted killings in a country where the United States is not officially at war.”

The use of these drones in Pakistan violates both the UN Charter and the Geneva Conventions, which prohibit willful killing. Targeted or political assassinations—sometimes called extrajudicial executions—are carried out by order of, or with the acquiescence of, a government, outside any judicial framework. As a 1998 report from the UN Special Rapporteur noted, “extrajudicial executions can never be justified under any circumstances, not even in time of war.” Willful killing is a grave breach of the Geneva Conventions, punishable as a war crime under the U.S. War Crimes Act. Extrajudicial executions also violate a longstanding U.S. policy. In the 1970s, after the Senate Select Committee on Intelligence disclosed that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although there have been exceptions to this policy, every succeeding president until George W. Bush reaffirmed that order.

Obama is trying to make up for his withdrawal from Iraq by escalating the war on Afghanistan. He is acting like Lyndon Johnson, who rejected Defense Secretary Robert McNamara’s admonition about Vietnam because LBJ was “more afraid of the right than the left,” McNamara said in a 2007 interview with Bob Woodward published in the Washington Post.

Approximately 30% of all U.S. deaths in Afghanistan have occurred during Obama’s presidency. The cost of the war, including the 30,000 new troops he just ordered, will be about $100 billion a year. That money could better be used for building schools in Afghanistan and Pakistan, and creating jobs and funding health care in the United States.

Many congressional Democrats are uncomfortable with Obama’s decision to send more troops to Afghanistan. We must encourage them to hold firm and refuse to fund this war. And the left needs to organize and demonstrate to Obama that we are a force with which he must contend.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and immediate past president of the National Lawyers Guild. She is author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent. Her anthology, The United States and Torture: Interrogation, Incarceration and Abuse, will be published next year by NYU Press.

`A Visit from St. Obama'

By Dave Lindorff (with apologies to Clement Clark Moore)

‘Twas the night before Christmas and all through the land
Not a creature was stirring in Afghanistan.
The bedrooms were bunkered with piles of hard stones
To protect from attacks by the Predator drones.
The children were huddled, afraid, in their beds
While visions of night raiders danced in their heads.

Mama doffed her hijab and I doffed my hat
And we both settled down for a rest and a chat
When out in the yard their arose such a clatter,
I sprang to the door to see what was the matter.
Away to the entrance I ran ‘cross the floor,
Pulled on the handle and opened the door.

The moon hadn’t risen but up in the air
A chopper was shining a light. Such a glare!
And what to my wondering eyes did appear
But a whole gang of men, armed and dressed in black gear.
With a tall skinny guy who was wearing a pistol,
I knew in a flash: it was General McChrystal.

More rapid than eagles his raiders they rushed
And they grabbed me and trussed me and kicked, hit and pushed.
“Frisk him! Blindfold him! Remove him! Get going!
And tear up his household! See what he’s not showing!”
They frightened my wife and my kids just for kicks,
And slaughtered my goats and a half dozen chicks.

Then away they transported me up in the air
To a far-off location and I still know not where.
They duct-taped my eyes and my arms and my feet,
And left me alone in a room with no heat.

That was a Christmas some four years ago,
And I’ve been in this hellhole so long I don’t know
What my hometown still looks like. I hear it’s all rubble,
From air-raids and car bombs and other such trouble.

But yesterday morning I was told by a guard
That I’m going home soon and should not take it hard.
It was all a mistake, they just had the wrong chap, and
Since my name is Achmed, well, “These things can happen.”
Now I hear that the head of the American nation,
Obama, has ordered an Afghan escalation.
He’s sending another 34,000 men
To ramp up the effort to “help us”...again.

In the spirit of the season, he said, by the way,
That the first of these new troops will arrive Christmas Day!
This Nobel Peace Prize winner thinks it’s just great
To unleash these new killers on that special date.

He and McChrystal both claim this invasion
Is to make us all safer and to build us a nation.
But how can that be when they’re raiding our houses,
and bombing our weddings and scaring our spouses?

You attack us with drones that kill innocents daily
Send out death squads to hunt us, and lock us to jail
Leaving families to worry if we’re even living,
While you torture us, starve us and then want forgiving

When it turns out, as with me, you got the wrong guy.
And meanwhile our families were left there to die
Because no one’s around to earn money for bread.
And you wonder why people want Talibs instead?

You say you have brought us democracy? Right!
If a corrupt drug cartel counts, then maybe you might
Have a point. But I think that Karzai and his kin
Are much closer to gangsters than they are to Abe Lincoln.

Merry Christmas America! Happy New Year!
Enjoy your days off. We’re in hell over here.
But I think you will find, as this old year is ending,
That your President’s “good” war is only beginning.

____________________
DAVE LINDORFF is a Philadelphia-based journalist. His latest book is "The Case for Impeachment" (St. Martin's Press, 2006). HIs work is available at www.thiscantbehappening.net

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