Sunday, November 29 , 2015, 8:52 am | Fair 49º

Tam Hunt: The Unitary Executive and the Erosion of Due Process

Recent killing of Anwar al-Awlaki, an American living in Yemen, spurs debate about holding our leaders accountable

By Tam Hunt |

Remember the “unitary executive”? You’re not unusual if you don’t. This phrase was part of a short-lived debate during the presidency of George W. Bush about the proper scope of presidential authority. Even though the debate was short-lived, the policies weren’t, and former Vice President Dick Cheney revealed in his recent book that expanding the power of the presidency was perhaps his most important mission while he was in office.

The unitary executive is a catchphrase that encompasses the idea that the executive branch should enjoy significantly more power than it currently does in our established system of checks and balances. President Barack Obama seems to share this philosophy, judging by his recent actions if not his words.

The recent killing of Anwar al-Awlaki, a U.S. citizen living in Yemen and recruiter for al-Qaeda, has prompted a small but growing debate that has similar contours to the debate about the unitary executive under Bush — if not accompanied by the same vehemence from the left.

In fact, there is a profound lack of vehemence, on the left or the right, about the actions that Obama has taken that, if taken by Bush, surely would have led to massive protests about the misuse of our power abroad. It is clear now, to anyone who cares to pay attention, that Obama is following Bush’s lead on most foreign policy issues — and in some cases taking an even more aggressive tack than his predecessor.

The killing of Awlaki, what may be accurately called an assassination, was not a surprise. An earlier attempt, also using unmanned drones armed with missiles, failed in May. This was the first strike in Yemen after a year because the Yemeni government had withdrawn permission for the strikes after a botched strike in May 2010 that missed its target but succeeded in killing a Yemeni official and a number of civilians. (Close observers will recall that the very first U.S. drone strike, at least the first one we know of from public accounts, was in Yemen in 2002.)

U.S. officials made the argument that Awlaki had “gone operational,” but presented no evidence to support their case. When pressed, “officials” admitted the evidence was “patchy,” according to Reuters. The editor of the Yemen Post denied that Awlaki had an operational role, stating: “(This strike) will not be a blow to al-Qaeda in the Arabian Peninsula from any perspective. We don’t feel they will suffer, because (Awlaki) did not have any real role in (the organization).”

So was Awlaki just a recruiter or was he operational? I don’t know, nor does anyone else outside the executive branch — and apparently they don’t really know either. The question is: Do we blindly believe our government on these types of issues, even as we get burned time and time again as the truth is later revealed? Does patriotism demand blind faith? No. Patriotism (and good journalism) demands that we be highly critical of unsubstantiated claims that form the basis for the unprecedented assassination of our own citizens. Let’s not forget that the United States did, for the first time in its history, consciously target a U.S. citizen with an unmanned drone, in a foreign country thousands of miles from our shores, with zero public due process.

This type of action, and the evidence it is allegedly based on, has to be scrutinized very closely.

There was an attempt at outside scrutiny by Awlaki’s own father, with the assistance of the American Civil Liberties Union. Awlaki brought a legal challenge against the federal government after he first learned that his son had been placed on a capture or kill list maintained by the White House. The ACLU argued on his behalf: “The United States is not at war in Yemen, and the government doesn’t have a blank check to kill terrorism suspects wherever they are in the world. Among the arguments we’ll be making is that, outside actual war zones, the authority to use lethal force is narrowly circumscribed, and preserving the rule of law depends on keeping this authority narrow.”


Unfortunately, when the lawsuit was filed, the court threw it out by sidestepping the issue as a “political question.” There is some precedent for this in U.S. jurisprudence and all first-year constitutional law students learn about it (including yours truly years ago). However, I’m personally ashamed that in our advanced democracy we have a legal system that won’t even address due process concerns for its own citizens on a kill list in a foreign country, based purely on assertions made by the White House. This does not seem like democracy to me.

The U.S. drone program more generally should be a source of real concern. Obama has expanded the program dramatically, and we now apparently have about 7,000 drones in operation around the world.

U.S. officials recently had the audacity to suggest that the drone program had gone a year with zero civilian casualties. When questioned about this striking claim, officials claimed that, well, there was no “credible evidence” of civilian casualties. When pressed further, it was revealed that it is generally not U.S. policy to inspect strike sites after the fact for civilian casualties. QED. The Orwellian nature of this argument should be lost on no one — but it is lost, unfortunately, on a regular basis.

The left in this country seems to still be in a daze when it comes to foreign policy under Obama because, well, he’s a good guy, right? Wrong. Every U.S. president has pursued an aggressive and highly damaging foreign policy, particularly when judged from the point of view of our victims. There is one major difference, however, that I have detected between Democratic and Republican presidencies on foreign policy, after 20 years of observing and reading. This is the degree to which Democrats are far less likely to start unilateral foreign wars. In fact, judging by the 14 unilateral regime changes examined in Stephen Kinzer’s excellent book, Overthrow, only one such regime change was initiated by a Democratic president: John F. Kennedy (Ngo Dinh Diem in Vietnam, much to his later regret). Democratic presidents are, however, happy to continue or escalate wars started by their Republican predecessors, or to join in unjust multilateral wars — like Libya (a topic for a different essay).

So why don’t Americans care about foreign policy? I have some ideas, but don’t know for sure. Judging from my friends, family and what I see and read, most people just don’t have the bandwidth in their lives to pay attention enough to care. A recent book about civilian deaths at U.S. hands around the world, The Deaths of Others by John Tirman, a scientist at MIT, makes a similar claim, among others.

I hope that most people would, in fact, care about the effects of our foreign policies on unwitting civilians (and now our own citizens in some circumstances) around the world if they knew what our actions lead to. I do have faith in human goodness. But education about what’s going on is the first step. And when our economy is mired in recession; the presidential race absorbs half the news for two years out of every four years; Facebook and video games, TV, magazines and dating sites, another major chunk of our time; oh, and hanging out with friends and creating families — there’s not much left over for most people to get up to speed on what’s really happening in our foreign policy.

It also seems that when U.S. citizens are the victims of our aggressive actions that more Americans should start to wake up. I applaud Ron Paul for his principled criticism of the Awlaki assassination and other U.S. foreign policy actions.

My hope is that the Arab Spring and movements such as the Occupy Wall Street protests in the United States, both heavily involved with social media in terms of information and organization, will continue the Sunshine Revolution here at home. The long-term trend toward more and more open democracy, and increased human rights and living standards around the world, does seem clear. That, in itself, is encouraging. And, eventually, we may actually hold our leaders to account for their actions abroad as well as at home.

— Tam Hunt is president of Community Renewable Solutions LLC, which is focused on community-scale renewables. He also is a lecturer on climate change law and policy at UCSB’s Bren School of Environmental Science & Management. Click here for his blog, Thought, Spirit, Politik.

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» on 10.15.11 @ 12:51 PM

Thanks, Tam. That was a good read, and a well thought out essay. I think people are waking up to the nonsense around them, finally.

You will undoubtedly be attacked now by the Holey See and the Local Cabazons.

» on 10.16.11 @ 07:08 PM

Ya right. BS, most of us do know and we are not as blind as you one worlder’s think. We are a sovereign nation and we are being diluted by the interests of globalists, both right and left. Awlaki was a bad guy and the evidence against him was substantial. You numb nuts, particularly you confounding obstructionist lawyer types just love a good legal battle even if it ends badly for the good guys. For you Tam it’s the court fight, not justice that you lust for. It is perhaps why our country is in the current malaise and decline it’s in. Oh we just want to be entertained not safe. Maybe you should get a friggen hand blown off or a love one blown to smithereens by some islamo-terrorist jerk so that you understand the enemy we are fighting. You know Tam the ones teaching their offspring from the moment of birth until their suicide bombing to die for the cause of killing anyone not an islamo-terrorist. But hey I am wasting my time with you. You left the rational of being an engineer to be an obstructionist lawyer. That says it all.

» on 10.17.11 @ 12:28 AM

AN50, two questions: 1) what is the “substantial evidence” that you mention that Awlaki was operational? 2) do you believe in the rule of law as a foundational value of our democracy?

» on 10.18.11 @ 06:04 PM

Tam, I’m not sure I understand where you get the optimism you express toward the end of the article. I don’t think that transparency or bandwidth is the problem. I doubt a tax increase or another Kardashian wedding would pass by without notice regardless of one’s busy life. It seems that people have plenty of access to information. A Google search on this Awlaki incident can pull up plenty of articles criticizing it for the reasons you state. Although more and more open democracy would be good, I’m not sure this would lead people to holder their leaders accountable for actions abroad. Perhaps it’s that people just don’t care. Or perhaps they agree with the policy. That makes your task to educate that much harder. Respectfully, P.

» on 10.19.11 @ 11:33 PM

The only thing I agree with the author is the rank hypocrisy of liberals condoning these actions because it was initiated by Obama, but screaming bloody murder and calling for the lynching of Cheney if it happened during the Bush Administration.

» on 10.20.11 @ 02:04 AM

Awlaki was a member of an organization that repeatedly proclaimed loudly and publicly its mission to kill Americans and destroy America.  Just the type of guy assassination was designed for.  Although I’m sure some folks would like to spend $millions of taxpayer dollars putting him through endless trials and appeals.  I applaud Obama’s courage in pursuing terrorism by the only means the terrorists understand: death.  Maybe there is no big outcry because most people think it was the right thing to do.

» on 10.20.11 @ 01:28 PM

I think that Obama tried for two years to jump-start the Constitution and the separation of powers.  Unfortunately, the GOP didn’t understand that in order to rebalance the power, the opposition party must seriously engage in the issues and actually join in crafting policy.  The Party of No just doesn’t seem to want to deal with process…and democracy is nothing BUT process.

The foreign policy issues are not separate from this lack of engagement.  A strong legislative branch with Senators and Representatives that work together across the aisle to craft policy and response is the ONLY serious counterweight to bad Presidential decisions. 

I don’t think the last two years of Obama trying to get cooperation were just to “be nice.”  As a Constitutional scholar, he knows how that document is supposed to work and why…too bad the GOP doesn’t.

» on 10.20.11 @ 01:42 PM

John Locke, let me ask you the same two questions I asked AN50: 1) what is the evidence that Awlaki was “operational”?; and 2) do you believe in the rule of law as a fundamental value in our democracy?

And a third one: 3) do you believe US citizens should susceptible to assassination merely for their words alone?

» on 10.21.11 @ 03:54 PM

I’m happy Tam acknowledges the rank hypocrisy of the left re. Bush and Obama but I think the rest of his arguments fall very flat.

The problem comes in the viewpoint that terrorism is a legal issue and not a national defense issue.  We are at war with these maniacs, they have killed thousands of Americans on American soil and would happily do it again.  These are acts of war, not mere criminality. 

They declared war on us a long time ago and we don’t get to unilaterally withdraw from a war, that’s just life.  They are fanatics and will not stop trying to destroy us until we squash them like the bugs they are.

This jerk in Yemen, be he a citizen or not of the US, was at war with us, he said so himself.  He was a danger to this country in whatever capacity he was operating under.  He willingly aligned and pledged himself to a group actively trying to destroy our country.  Good riddance.

» on 10.21.11 @ 09:32 PM

Wireless, let me ask you the same questions I’ve asked of AN50 and John Locked, which have gone unanswered:

1) what is the evidence that Awlaki was “operational”?; and 2) do you believe in the rule of law as a fundamental value in our democracy?

And a third one: 3) do you believe US citizens should susceptible to assassination merely for their words alone?

And I’ll ask you a fourth one: 4) how is that we are “at war” without a declaration of war? Doesn’t our legal system require that we be at war for the laws of war to apply?

» on 10.22.11 @ 12:47 PM


Operational smoperational, what does that have to do with anything?  You are over thinking this.  Its a war, not a criminal prosecution.  He was an enemy combatant, and an unlawful one at that.  This would be no different than targeting the head of the Nazi logistics command.  He wasn’t “operational” either, its a support role, but a role that directly enabled the Nazi war machine.  Its no different than the Nazis sinking our merchant marines in WWII, they were’t operational combatants.  Alawki was a senior member of Al-Queda, that alone makes him a legitimate military target.

Of course the rule of law is important but I don’t see where the law is being broken.  I will point out to you that the courts have elected not to intervene in any of the numerous lawsuits filed regarding prosecution of the war.  The reason is that we are functionally at war and the executive has broad powers to execute.  By electing to continue to fund these operations Congress has made their intentions clear as well.  We are at war.  Get it?

To follow your line of thinking we should issue an arrest warrant for these guys and get the Yemeni government to capture them and turn them over to us?  Or get the Pakistanis to turn over Bin Laden or Mullah Omar?  Get real.  Your approach is suicidal.  Did you think going into Pakistan to get Bin Laden was illegal as well?  There is no functional difference in this case.

» on 10.22.11 @ 02:13 PM

Wireless, whether Awlaki was operational is crucial because without him being operational words alone become sufficient for extrajudicial execution. You seem to be fine with that but I guarantee you the majority of Americans would not be okay with that. Remember that a key argument in the White House’s very weak case for why they assassinated Awlaki was that he had “gone operational” and was no longer just a propagandist saying mean things about America. If saying mean things about America qualifies one for assassination in your opinion, you might want to read about our Constitution and the history of the freedom of speech.

As for being “functionally at war,” again this mentality directly contravenes our system of law. To have the laws of war apply, a declaration of war must be issued. And it hasn’t been issued.

Without a declaration of war, yes, a law enforcement paradigm is the appropriate approach. Rather than invading a few countries, killing hundreds of thousands of people, displacing millions more and wounding who knows how many, and creating countless new enemies in the process, wouldn’t a smart law enforcement approach have been a bit cleaner and morally justifiable? There are many avenues the US could have pursued under a law enforcement approach to bring those responsible for 9/11 to justice.

As for killing Bin Laden in Pakistan, of course that operation was illegal under US and international law. What is it about being a sovereign state that is so hard to understand? Imagine if Russia did the same thing on US soil in launching an assassination operation of, say, a Chechen rebel leader, would you accept Russia’s actions as justified under int’l law?

Or how about a real world example: Iran’s alleged assassination plot against the Saudi ambassador on US soil. Do you condemn that plot? If so, on what grounds? If you’re ok with the Osama operation how can you then condemn the Iranian plot?

Last, let’s extend your rationale re Awlaki a bit further to a real world situation: Obama followed up his assassination of Awlaki two weeks later with another drone strike that killed Awlaki’s 16 year old son, also a US citizen, a 17 year old friend and a number of other Yemenis. No evidence was even presented by the US of the son’s involvement in Al Qaeda. Are you ok with the assassination of US chilldren on foreign soil with zero due process?

Here’s Gleen Greenwald’s take on this:

» on 10.22.11 @ 11:28 PM


You’re Iranian example of trying to kill the Saudi Ambassador on US soil is absurd.  Last I checked Saudi Arabia and Iran weren’t at war.  Secondly, diplomats are not combatants and are expressly protected by all kinds of international agreements to which Iran is a party to.  Good grief.

» on 10.23.11 @ 12:36 AM

If one approaches a war as a legal issue, like you are, then you would have a point. However, most rational people reject that our combat activities in pursuit of terrorists are legal enforcement activities and instead recognize we are at war.  That’s why it’s called the Iraq War and the Afghanistan War and the War on Terror.  Tell all those troops in combat that they aren’t at war and we’ll see what they think about it.  Unless you are prepared to prove we aren’t at war then you don’t seem to have a case. 

You seem to be hanging your hat on the fact the Congress never formally issued a declaration of war, they haven’t done that since WWII.  Prior to WWII there were instances where congress also did not formally declare war like the Barbary Wars.  Most constitutional scholars recognize that votes by Congress authorizing combat activities is the functional equivalent of a declaration of war. 

The constitution does not specify how to declare a war, it just gives Congress the authority to do so, it is silent as to how.  Secondly, the fact that they funded and continue to appropriate funding to conduct these activities is a defacto approval of them.  Good luck with that argument.

As far as Bin Laden goes, we bombed France and many other places in WWII that weren’t our enemy because the enemy was there.  What’s the difference with Pakistan apparently knowingly harboring Bin Laden, enemy number one?  Did he not commit an act of war against our country?  Did he not declare war on our country?  He did.  Goebbles was just a propagandist and he was a legitimate military target, I see no difference with Alawki.

You seem completely unwilling to even consider that our combat operations are part of a war, they aren’t criminal enforcement actions.  The courts and the Congress appear to agree with me.

I tell you what, if you feel so sure of this and so convinced our government is breaking the law, as an attorney aren’t you duty bound to sue the government?  Go find the most left wing court you can and file a lawsuit and we’ll see how it goes.  Go make your case before the court, it could make you famous.  In the meantime, our guys will continue finding and killing these psychopaths so we can all sleep well, and safely, here at home.

» on 10.23.11 @ 12:54 AM

Regarding Awlaki’s son, it was reported he too was a member of Al Quada.  Fair game.  Even if he wasn’t, it would be an unfortunate case of collateral damage of a combat operation.  Its a war, these things will occur.  Maybe Awkaki shouldn’t have dragged his son into a war against his country.

» on 10.24.11 @ 03:01 PM

Wireless, your response to the killing of Awlaki’s 16 year old son in Yemen demonstrates that we live in very different moral universes. Probably so much that we can’t benefit much, if at all, from dialogue.

It saddens me how common your type of reaction is among conservatives. I was talking to a conservative friend recently about Iraq and when I mentioned the cost to Iraqis of our illegal intervention (up to a million or more Iraqi lives lost according to some reputable studies), he said this price was worth it. This boggled and boggles my mind. How could a decent human being state with such complacence that killing one million human beings for ANY cause was worth it? I don’t know if you’d agree with my friend’s sentiment on this, but your response to Awlaki’s son’s death suggests to me that perhaps you do.

One thing I have observed as a key difference between progressives and conservatives is the degree to which conservatives seem to feel practically no empathy to those who are simply labeled the enemy (with or without any proof) - or in your case even to Awlaki’s son as “collateral damage” in an undeclared war that you (and Obama) seem to think can be waged anywhere, anytime, with no regard for human life or US or int’l law.

» on 10.24.11 @ 04:46 PM


Oh there it comes, that inevitable air of moral superiority you leftists always resort to when you’ve lost the argument on its merits.  We conservatives are just knuckle dragging Neanderthals to you all caring and all feeling do-gooder know-nothing “progressives”. 

Your assertions of our moral failings are both mindless and offensive.  You seem to care more about your theoretical ideas about justice than you do the real safety and well being of our county.  We conservatives who live in the real world find it hopelessly naïve and misguided.

First, regarding your assertion that the intervention in Iraq cost 1M lives, that is absolute complete and utter nonsense and that “study” you reference has been roundly discredited years ago.  Think about that for just a minute, do you really believe we’ve killed 1M Iraqi’s?  It’s absurd on its face.  We’ve had this discussion before several months ago and you seem to have forgotten.  You lose all credibility when you start asserting things that are demonstrably false.

Secondly, the intervention in Iraq was not “illegal” as you assert.  On what basis are you making that claim?  It was authorized by Congress and funded if you will recall.  We had over 20 other nations participating with us. 

Awlaki’s son was reported to be a member of Al Queda.  Hanging out with members of Al Queda is probably not a great a career choice.

» on 10.24.11 @ 06:01 PM

Wireless, yes, I think it’s pretty fair to characterize your response to Awlaki’s son’s assassination with zero due process by missiles fired from a robot in a foreign country as worthy of a knuckle-dragging Neanderthal. In what moral universe should such actions be permissible? Y

ou didn’t bother even expressing a tinge of regret in your statement that he was, at worst, a victim of collateral damage. How much collateral damage is the “war on terror” worth? A million lives?

As for that study and my reaction to it in our previous discussion, you are mis-remembering the discussion. I maintained then and maintained now that there are a number of credible studies, using established epidemiological techniques finding between half a million and one million “excess deaths” in Iraq. This means that these deaths occurred above the background (normal) death rate pre-invasion, so include all deaths by US hands and all others above the background rate. But all of these excess deaths are directly attributable to our decision to illegally invade that country so even if the deaths aren’t due directly to US bombs, gunshot or other weapons, they are indirectly due to our decision to invade.

As for the war being illegal, it was clearly illegal under int’l law. The UN Charter, to which the US is a signatory (and major shaper of the Charter itself in the 1940s), constitutes the “supreme law of the land” under the operation of the Constitution itself. This is the case with any treaties signed by the US. The UN Charter is very clear that there are only two situations where a country may mount armed action against another country: 1) when under attack; 2) when the UN Security Council approves the action (as it did with Afghanistan and Libya).

Int’l legal jurisprudence has long recognized that preemptive attacks may sometimes be legal if there is a clear and imminent threat. It is quite obvious that neither of these situations pertains to Iraq and this is why the invasion was squarely condemned around the world as an illegal invasion. Rather, Bush argued that “preventive war” should be allowed in the case of Iraq. They never argued there was an imminent threat. They argued instead that there was a long-term or potential threat from Hussein and his non-existent WMD, making a “preventive war” necessary and just. Very few people ever bought this argument and it is definitely not part of established int’l law.

There’s a good reason why: if “preventive war” is considered legal how can one nation or a collection of nations ever condemn another nation for its own preventive war? It’s hard to make a case for preemptive war because it’s very rare that an imminent attack is known about in advance. But it’s rather easy to make (spurious) claims for preventive war, as we know in retrospect with respect to Iraq.

» on 10.24.11 @ 07:37 PM


That number of 1M deaths is based upon a Lancet study that is flat out nonsense.  This is the same Lancet that led millions of mothers to believe that routine vaccinations were deadly (also nonsense) and resulted in a number of unnecessary deaths.  But why let any of that inconvenient information get in the way of a useful liberal fairy tale.

Think for just a moment what 1M deaths would mean, that would require about 300K deaths a year during the time combat operations were significant.  In the entire Civil War in the US was about 600K deaths.  Even if you blame all the Al Qaeda inspired car bombs on the US there is absolutely no way to get to 1M people, none.  Internal US military documents obtained by Wikileaks showed about 106K deaths of which 66K were civilian, the rest combatants.  Nobody counts stuff like this more diligently than the military.  UN numbers and AP numbers are similar to the US Govt. numbers and they were collected independent of one another. 

This Lancet study is nonsensical on its face.  They magically come up with a casualty figure 10X higher than people who actually are there counting bodies.  You really believe about 1000 people a day were killed?  A highly effective car bomb might get 75 people.  How do you get to 1000 a day year over year.  Please. 

Go find every single reported bombing or combat operation or whatever and total it up and you won’t get anywhere near 1M.  This study has been widely challenged and criticized on numerous fronts by numerous organizations.  Do a little research on the numerous challenges to this hugely suspect study.  Pinning your arguments on something that is so clearly questionable and openly outlandish is foolish.

Secondly, even if you believe the UN gets to make our security decisions for us let’s not forget the inconvenient little fact that Iraq was flagrantly violating their UN obligations by kicking out inspectors and shooting at our pilots enforcing the no fly zones.  Those violations alone technically abrogated the cease fire agreement ending the first Gulf War.  Since the cease fire was violated by Iraq the cease fire was no longer in effect.  No further UN approvals were needed to resume hostilities.  For political reasons and to satisfy Tony Blair, Bush agreed to seek a new UN resolution but he made it clear we did not need one. 

Regardless, you assert that somehow we take our defense guidance from the UN and that is legally binding?  For something to be legally binding there must be some enforcement mechanism.  What is that exactly?  What are the penalties?  This belief in the UN as some legitimate authority is hopelessly naive.  Nobody subverts their defense interests to the UN.  Nobody.  The UN unfortunately resembles the Star Wars bar scene more than any legitimate and useful organization.  It’s a joke.

» on 10.24.11 @ 07:40 PM

I am not going to get into the legal mumbo-jumbo whether the war with Iraq was legal or not, but President Bush did have Congressional authorization with most Democrats supporting the legislation. Moreover, the country at the time was overwhelmingly in favor the intervention. Also, the UN Charter, the last time I looked, does not supersede our Constitution.

Of course, Wireless is correct, we did not kill a million Iraqis or anything remotely close to that figure. Now if you want to know who did kill a million Iraqis, a genocide up there with some of the worst of the 20th century, you can find him right under your nose. Saddam Hussein indiscriminately killed Kurds by gassing them and other equally odious methods and committed many atrocities against the Shiites which are too numerous to mention here. Then if you count the Kuwaitis and the Iranians as well as the Iraqis he killed in wars he initiated because of his insane, megalomaniac savagery, you can easily get to a million or more casualties.

Considering the above, I think we had plenty of justification to take him out and save the world from his genocidal behavior. However, I guess Tam doesn’t care about any of this because he was perfectly content to allow Saddam continue the the wanton and indiscriminate killing of his own people and the populations of his neighboring countries.

» on 10.25.11 @ 04:25 PM

As for your comments on the UN, read what I wrote previously. The UN Charter IS US law because it is a US-signed treaty. The UN Charter is the “supreme law of the land” through the operation of the Constitution itself because the Charter is a treaty.

Moreover, we, the US, created the UN Charter, working with the UK, in the wake of the devastation of WWII. We created it, with its limitations on the legal use of force, as the appropriate balance between national sovereignty and preventing aggression by states. That’s why Article 51 of the UN Charter provides that nations may of course defend themselves when attacked or under the threat of imminent attack. What they may NOT do legally is fabricate a case for “preventive war” that gives carte blanche to nations to attack anyone anytime for any reason a nation feels warrants such an attack.

So, no, the US has not farmed out its security obligations to the UN. It created the UN and the UN Charter as a way to provide some real teeth to international law and get past the “might makes right” mentality that has dominated human history.

This is why I asked you earlier in this thread if you believe in the rule of law as a basic value of our democracy. You clearly don’t - and most conservatives don’t. Rather, your worldview is shaped by the atavistic might makes right mentality.

The US is still the big dog on the block, but we won’t be forever. And in fact China is nipping at our heels in terms of economic power and it won’t be much longer when China starts to really challenge the US as global hegemon. This is just a fact - China’s growth rate puts it on pace to exceed the US as the world’s leading economy sometime in the next decade or two, which is tomorrow in terms of int’l affairs.

This is why, as I’ve written in previous essays, Obama and future presidents should use this remaining brief period of US dominance to create a far stronger UN/multilateral system that won’t allow any future hegemon to arise and dominate the rest of the world. I have no wish to see China or Russia replace the US - they’d be far worse than the US, despite all of our flaws when it comes to foreign policy.

Rather, a strong UN should allow for a system of regional powers and a community of equals. Pie in the sky? The UN itself was considered pie in the sky for most of modern history. Until it was created. Now it’s time for us to use our remaining years as the sole global superpower to create a better system that prevents a Chinese-dominated, or a Russia-dominated world to succeed the American Century.

» on 10.25.11 @ 04:30 PM

Lou, you’ve got it exactly backwards. Please show me the studies documenting Hussein’s atrocities. I’ll save you some time - you won’t find them. The figures you hear bandied about in the all-too-compliant media are simply estimates based on certain grave sites and other factoids. There’s nothing comprehensive about the deaths attributed to Hussein. I’m not defending the guy - he was certainly a heinous dictator in many ways. But that doesn’t mean we abdicate reason in discussing his actions.

On the flip side, when it comes to deaths from the illegal US invasion of Iraq, as I described to Wireless, there are numerous comprehensive studies and some non-comprehensive studies on this issue.

So what we know with far more certainty than what you have suggested is that the US actions in Iraq have resulted in FAR more deaths than occurred under Hussein. That’s the entire point of the Lancet and ORB studies because they measure excess deaths, which means deaths above and beyond what was the case before our invasion.

» on 10.25.11 @ 05:40 PM


I’m well aware of what the UN was intended to do, but unlike you I recognize that it does none of the things it was intended to do.  Laws are just words without an enforcement mechanism and penalties.  Neither of which the UN has proven itself able to do with any effectiveness.  “Real Teeth”?  Please.  You can’t possibly really believe that.  How about some examples of these “real teeth”?  For whatever its intentions, the UN’s results have been laughable at best and destructive at worst.

Of course I respect the law but the “law” is not a suicide pact.  No American President has subjugated US interests to the UN.  Obama hasn’t and he’s furthest left president we’ve had since Wilson.  The UN has clearly not lived up to its ideals, however well intentioned they may be.  Allowing the UN to dictate what we do would indeed be suicidal.  They clearly don’t have the US best interest at heart.  Those of you on the left worship the UN precisely because you see it as a way to constrain the US.  I note that any of your writings on these subjects always presume the worst about the US.

Let’s see some of the wonderful achievements of the UN of late:  the corrupt oil for food program, UN “Peacekeepers” raping women in Africa, a complete inability to deal with actual nuclear threats like North Korea and Iran, putting Libya and Iran on the Human Rights Council, etc.  We’d be better off shutting down this charade and starting over with a “Club for Democracies” or the like.  The UN has degraded into a freak show of tin-pot dictators and parasitic countries using that forum, that we largely pay for, to attack the US and Israel.

But since you chose not address a couple of key points I made I will consider them conceded and that is that the Constitution is silent on how to declare war and most scholars recognize that authorization for combat activities is the functional equivalent.  Secondly, that the US had all the precious UN authorization you think they needed to resume hostilities with Iraq due to the standing agreements from the first Iraq war.

» on 10.26.11 @ 01:46 PM

Wireless, I responded to your comments on studies of Iraqi casualties yesterday but it got lost somehow (happens too often at this site unfortunately). Here’s my response again.

You’ve focused on the Lancet report, which was published in a peer-reviewed world-renowned medical journal, and which used well-established epidemiological techniques. They even threw out areas of extremely high casualties, like Fallujah, in order to not throw the overall analysis off. Your main critique of the report is that it doesn’t seem right to your common sense. Hmmm. I’ll take hard data and science over common sense most days.

There are other studies showing the same range of excess deaths, including one by the British polling company Opinion Research Business (ORB).

All of these studies went only through 2006 or 2007 so they are in fact very likely huge underestimates of total casualties because we have of course seen major conflict continue in Iraq over the last five years.

Here’s a good list of the relevant studies:

Keep in mind that deaths are not the only relevant measure of the harm we wreaked in that country. We also caused massive injuries, maimings, displacement of families, loss of economic activity, etc.

As for your suggestion that the US military records are the most accurate. Seriously? The military has every incentive to downplay casualties. How on earth would the US military track every death or casualty from air strikes, for example? Or artillery fire? Or drive-by skirmishes? The figures cited in the Wikileaks file are a huge underestimate.

But let’s assume for argument’s sake that “only” 100,000 Iraqis (the Wikileaks figure) have died as a result of our illegal invasion. Is that acceptable to you? In what moral universe is such damage and suffering, displacement, and misery permissible?

All for what? We know there were no WMD. We know Hussein had no connection to Al Qaeda. This whole history is a massive black eye for US foreign policy and will go down in history as the key lesson for how NOT to conduct foreign policy.

» on 10.26.11 @ 01:54 PM

Wireless, as for the UN and its role in the world, you have a very selective memory. You mention Libya but you forget that it was UN authorization that led to the US/NATO action in Libya, and this was a precondition that Obama and his allies required. I don’t agree with the Libyan action and I think Obama and NATO went way overboard in their actions, but that’s a topic for a different essay. My point here is that the UN has approved many actions, including the first Gulf War, Afghanistan, Libya, Sierra Leone, in the last couple of decades. This demonstrates that they can in fact act when evidence suggests action is required. The Libyan resolution is in fact pretty good - it was the extremely expansive interpretation by US/NATO that made a joke of it.

The UN doesn’t have troops of its own, so it relies on member states to donate troops and weapons to relevant actions that the Security Council votes to approve. The UN has in fact demonstrated many times its relevance to world affairs.

And, again, nothing in the UN Charter prevents a nation from defending itself, even preemptively (if there is good evidence of an imminent attack). Again, what is clearly illegal under int’l is “preventive” war, which is why Bush failed at getting UN authorization for Iraq.

The whole point of the UN system with respect to the use of force, and the reason it is increasingly relied upon by leaders around the world is because there is a long-term trend toward more toothy enforcement.

Why do you think Obama and world leaders around the globe condemned the alleged Iranian assassination plot as against int’l law? Because law matters! It may be toothless in many places, I agree, but the whole point is that the US and other major countries need to work much harder to enforce int’l law - and stop being such a scofflaw ourselves. When Obama engages in illegal assassinations and infringes on sovereign nation’s territory, and then interprets the UN Libyan resolution beyond all reason, it makes it far harder for other nations to take int’l law seriously.

» on 10.27.11 @ 01:56 AM


You seem like a good guy and well intentioned but you are, IMHO, really overly idealistic and naive when it comes to dealing in the real world of geopolitics.  The UN has proven itself to be highly ineffective to be kind.  Its become a sick joke that we pay for.  The countries that don’t like us use the UN as a mechanism to counter our interests.  Its as plain as the nose on your face.  Why else would China and Russia oppose a tougher stand on Iran?  There are lots of examples.  Wake up.

You seem to want to believe the worst about your country and that is unfortunate.  If you really believe we are responsible for the deaths of 1M people in Iraq when the math is completely preposterous and lots of people have challenged those findings, I’m apparently not going to change your mind.  You want to believe it. 

You keep saying the war was illegal when it clearly was not, the first Gulf War resolutions gave the US all the “authority” we needed under this farcical UN to resume hostilities.  Again, you just keep repeating your left wing beliefs without acknowledging I have a point. 

Bottom line, your thinking is dangerous to the health and well being of our country.  Obama sounded like you before he got in office, but when he was faced with the reality and the responsibility of protecting our country and he has done what he is supposed to do—- look out for the best interests of the US. 

All this peace, love and international unity dreaming is just that, a dream.  It is never going to happen because every sovereign country looks after their interests first and those frequently conflict with other countries.  That is never going to change.  Its human nature.

Since you seem to have an interest in this area I might suggest you subscribe to Stratfor or the Naval Institute or the Army War College and brush up on geopolitics because you, despite your good intentions, are hopelessly idealistic and misinformed.


» on 10.28.11 @ 09:18 PM

Wireless, here’s a not-so-hidden secret, which we realize when we examine the course of history: the better angels of our nature are clearly leading other aspects of our collective souls and psyches. The hopelessly naive idealists have, despite their folly and hubris, succeeded time and time again in changing the world. So many features of modernity that we value as a society has come about primarily due to the naive idealists: democracy itself, ending slavery and indentured servitude, the extension of early democracy to voting rights for minorities and women, human rights more generally, civilian control of the military in most countries around the world, health care for all (in almost every advanced country around the world, not unfortunately in our country), cleaner energy, worker’s rights, and an increasingly important system of international law.

Every one of these victories has been fought against entrenched opposition that favored the status quo - or even favored turning backward to an older, less advanced era. The naive idealists have succeeded in creating many aspects of modern society despite our species’ innate tendencies to violence, domination and intolerance. And we idealists aren’t done yet.

Certainly we can’t all be woolly-headed idealists. We need some more practical-minded folks to keep things running. But the leading edge of evolution, in its broadest sense, is and always has been idealism and a desire to progress beyond today’s limitations.

As for your statements about Iraq and the illegality of that war, your facts are way off. Hussein did not “kick out” the UN weapons inspectors. The UN weapons inspectors left voluntarily in both instances (1998 and 2002-2003). There were always squabbles about the degree of access to be allowed, but the inspectors were never kicked out. They were ordered to leave in 2003 by the UN after the Bush drumbeat for war got so loud that the safety of the inspectors was put in doubt.

Moreover, we have direct evidence from a 2002 UK report on Iraq that Bush pursued the UN weapons inspection routine purely as a fig leaf to provide a veneer of legality to the long-planned invasion, in order to provide cover for Blair’s support for war.

The Senate Intelligence Committee concluded in a 2008 report that Bush “misrepresented the intelligence and the threat from Iraq.”

And don’t forget that the UN weapons inspectors failed to find evidence of WMD in 2003 because there weren’t any! So it turns out Hussein was actually complying with UN resolutions during the 1990s when he reported to the UN repeatedly, and stated repeatedly in public, that Iraq did not have WMD and was not pursuing WMD. Hmmm.

As for the no-fly zones, you’re also wrong. The no-fly zones were never approved by the UN and Boutros-Ghali later called them illegal in an interview: “The issue of no fly zones was not raised and therefore not debated: not a word. They offer no legitimacy to countries sending their aircraft to attack Iraq. They are illegal.”

The US and its allies chose to impose those zones after the war as a very expansive interpretation of the resolution authorizing the first Gulf War. Accordingly, those actions by the US and its allies were clearly illegal under int’l law and Iraq had every right to shoot at war planes invading its air space and bombing it. Moreover, during the run-up to the 2003 war, the absurdity of US claims about why it was bombing certain targets in Iraq (ramped up substantially in the prelude to the 2003 war) was nakedly transparent to anyone who is not wilfully blind. The news routinely contained stories about how the US bombed a target in southern Iraq because of some suspicious movement in northern Iraq. It was Orwellian ridiculousness at its best (worst).

Again, the 2003 Iraq war was blatantly illegal. Your argument that the US justly relied on previous authorization by the UN in 1991 is contradictory. How could it be a continuation of that earlier resolution when the US went to the Security Council for a resolution for the 2003 war and was denied? The US can’t then argue “we didn’t need additional authorization anyway, just kidding.”

» on 10.29.11 @ 02:02 AM

I am flabbergasted that you have denied that Saddam was responsible for killing hundreds of thousands of people. It is hard to debate you when you deliberately ignore information the whole world has acknowledged. Also, you have a way of taking data from very flawed, ideologically biased studies and presenting it as fact.

It is laughable to say the flyovers were illegal. Maybe you forgot or were too young at the time to understand that Hussein was slaughtering the rebelling Kurds and Shiites from the air in the aftermath of the Kuwait War. Our flyovers were initiated to keep his planes and helicopters grounded, so he couldn’t use them to indiscriminately kill these people. Do we know precisely how many people he killed: no, because he wasn’t publicizing it or informing us when it was happening. However, many of the killing fields have been found and documented, and the Iraqi people have given us very detailed accounts of the massacres

The following is a rundown of some of his handiwork:

“The Dujail Massacre of 1982:
In July of 1982, several Shiite militants attempted to assassinate Saddam Hussein while he was riding through the city. Hussein responded by ordering the slaughter of some 148 residents, including dozens of children. This is the only war crime on which Hussein has been charged, and he will almost certainly be executed before any other charges go to trial.

The Barzani Clan Abductions of 1983:
Masoud Barzani led the Kurdistan Democratic Party (KDP), an ethnic Kurdish revolutionary group fighting Baathist oppression. After Barzani cast his lot with the Iranians in the Iran-Iraq War, Hussein had some 8,000 members of Barzani’s clan, including hundreds of women and children, abducted. It is assumed that most were slaughtered; thousands have been discovered in mass graves in southern Iraq.

The al-Anfal Campaign:
The worst human rights abuses of Hussein’s tenure took place during the genocidal al-Anfal Campaign (1986-1989), in which Hussein’s administration called for the extermination of every living thing—human or animal—in certain regions of the Kurdish north. All told, some 182,000 people—men, women, and children—were slaughtered, many through use of chemical weapons. The Halabja poison gas massacre of 1988 alone killed over 5,000 people. Hussein later blamed the attacks on the Iranians, and the Reagan administration, which supported Iraq in the Iran-Iraq War, helped promote this cover story.

The Campaign Against the Marsh Arabs:
Hussein did not limit his genocide to identifiably Kurdish groups; he also targeted the predominantly Shiite Marsh Arabs of southeastern Iraq, the direct descendants of the ancient Mesopotamians. By destroying more than 95% of the region’s marshes, he effectively depleted its food supply and destroyed the entire millennia-old culture, reducing the number of Marsh Arabs from 250,000 to approximately 30,000. It is unknown how much of this population drop can be attributed to direct starvation and how much to migration, but the human cost was unquestionably high.

The Post-Uprising Massacres of 1991:
In the aftermath of Operation Desert Storm, the Kurds and Shiites rebelled against Hussein’s regime, leaving an unknown number to be slaughtered. At one point, Hussein’s regime killed as many as 2,000 suspected Kurdish rebels every day. Some two million Kurds hazarded the dangerous trek through the mountains to Iran and Turkey, hundreds of thousands dying in the process.”

Of course, we have not even counted the hundreds of thousands that were killed from the wars he started with Iran and Kuwait. Good riddance to Saddam.

» on 10.29.11 @ 12:42 PM


I already explained, twice, that the first gulf war resolutions gave us all the “authorization” we needed to resume hostilities because Hussein violated them.  Its not that complicated.  I also explained that the only reason Bush went back to the UN was to satisfy Tony Blair.  They both made it clear we didn’t need to, it was a good faith gesture.

I’m curious what you think we should do about Iran?  What would you say if we, or the Israelis, bombed Iran’s nuclear facilities?

What did you think when Israel took out the Syrian facility a couple years ago?

» on 10.29.11 @ 03:28 PM

Wireless, and as I already explained: it makes no sense at all, and is in fact self-contradictory, to go to the UN for authorization to attack Hussein in 2003, fail to get authorization because the Security Council voted “no,” and then argue that the US and UK didn’t need authorization after all. The arbiter of legality in this case IS the Security Council. So if they so “no” to war, it is by definition illegal. Period. There is no clearer statement of illegality.

Now, you can disagree that the UNSC should be the arbiter of legality, but you can’t argue under our current (admittedly weak) system of int’l law that the Iraq was legal when the UNSC said it wasn’t.

As for Iran, I agree with Ron Paul: leave them alone and stop making a mountain out of a molehill. We care about Iran here in the US primarily because of Israel. Iran is no threat to the US. But they might be a threat to Israel. They are NOT an existential threat to Israel because, as Ron Paul and many others have pointed out, Israel has a rather good deterrent to attack in the form of a few hundred nuclear weapons. Hmmm.

So Iran’s threat to Israel is one of regional hegemony, not existential or physical. Israel wants to be more free to project power (with the US, of course) in the Middle East. And because Iran is the primary rhetorical opposition, with some token physical opposition in terms of supporting various groups opposing the US and Israel, Iran has become enemy #1. Obama has now bought into this game because he sees it as an easy way to win “strong on national security points” vis a vis indepedent voters. Foreign policy is always the easy way to go in the US to win non-liberal voters over. And the world consistently suffers because of this unfortunate feature of our political system.

I worry far more about Pakistan as a real threat to global security because they’re highly unstable, have a huge population of radicals that we are further radicalizing through our illegal attacks on Pakistani soil, and because they have the bomb. We already KNOW that A Q Khan’s network was responsible for providing at least some nuclear weaponry know-how to North Korea. And yet we continue to hear the ridiculous claims about Iran as an existential threat to Israel and as a major threat to the US. Please.

As for bombing Iran’s nuclear facilities, of course such an action would be blatantly illegal under int’l law. That would be a clear example of “preventive war,” which has no legal precedent.

What is so hard to understand about nations not being able to engage in aggression? Aggression is defined as illegitimate use of force by nation-states. Hitler offered all sorts of rationales for his invasions of neighboring countries. How on earth would you distinguish for example, Hussein’s own war against Kuwait in 1990 (due to his concerns about Kuwait taking oil that Hussein thought belonged to him), and an attack by the US and/or Israel on Iran? Just because we’re the good guys and they’re the bad guys? That’s what Hussein thought.

The entire point of int’l law, and the modern UN system created after WWII, was to provide a rational basis for distinguishing between self-defense (legitimate use of force) and aggression (illegitimate use of force).

Let me ask you: what would your preferred system of int’l law look like? Who would enforce it? And would it accord equal rights to defense and sovereignty to all nations, regardless of power or internal politics?

» on 10.30.11 @ 12:20 AM

This is getting tiresome but I will, for at least the fourth time explain why we, the Brits and over 20 other nations did not need a UN resolution to resume hostilities with Iraq.  They lost the first Gulf War, badly if you’ll recall, and signed a cease-fire which mandated they comply with certain conditions.  They did not, repeatedly.  At that point the cease-fire was technically no longer in effect.  It was a contract which they violated, therefore was no longer in force.  The condition that existed before the cease-fire was a UN approved war.  Get it?  Its really not that complicated.

We did not need anything else.  Again, for the 4th time, they went back to the UN for strictly political reasons to try and rally more support but the Russians and Chinese (big surprise) wished to try and hamstring us as usual.  As we learned after the war the Russians in particular were knee deep in the corrupt and criminal “Oil for food” program if you’ll recall.  Allowing the Russians or anyone else to dictate our strategic actions is insane.  Their interests are more often than not counter to ours, why you would even consider letting them veto our interests is horrifying.

I’m not surprised you agree with Ron Paul.  One of many reasons he will never be President.  His foreign policy views are insane and most Americans recognize that.  You show your complete and utter naiveté by thinking its no big deal if Iran gets a nuclear weapons capability.  Like I said, your understanding of of geopolitics is quite elementary.

There is nothing, nothing good that can come from the Iranians having such a capability.  Its all bad.  Ranging from disastrous to apocalyptic.  The best that can occur is they don’t use them but it sets off a nuclear arms race in the middle east.  That will 100% happen and there is absolutely no good that can come from that.  The Saudis, Turks, Egyptians, Jordan and others will aggressively pursue their own capability.  How exactly is this good? 

The worst that could happen is self-evident and they have repeatedly said they want to wipe Israel off the map.  When people say stuff like this you need to take them seriously.

Your thinking is dangerous and naive and your confidence on a corrupt, ineffective institution that is hostile to our interests is mindless.

» on 10.30.11 @ 09:05 PM

Lou, I don’t disagree that Hussein was a bad man who committed many atrocities. But my point is that this itself doesn’t in any way justify a war of aggression by the US and its allies to “take him out.” Nor does it establish that we achieved a net good for the Iraqi people through our illegal aggression.

Again, there are a number of comprehensive reports establishing that the US invasion led to far more deaths than Hussein had perpetrated. So by your own standards, our invasion puts us in the same or worse category as Hussein himself.

The entire point of liberal internationalists like myself, with respect to the Iraq War, is that there are many other ways that we could have, and should have, dealt with Hussein. First, as Condi Rice and Powell stated publicly before the war, and before 9/11 (which changed things a tad): Iraq was suitably contained such that it did not pose a regional threat. This only changed after Bush and Rumsfeld became aggressors as a way overblown response to 9/11.

We now have, with the Arab Spring, ample evidence that non-military means (or at least non-invasion means) could have been used to help effect regime change from within in Iraq.

» on 10.31.11 @ 12:24 PM

Wireless, and as I already explained: it makes no sense at all, and is in fact self-contradictory, to go to the UN for authorization to attack Hussein in 2003, fail to get authorization because the Security Council voted “no,” and then argue that the US and UK didn’t need authorization after all. The arbiter of legality in this case IS the Security Council. So if they so “no” to war, it is by definition illegal. Period. There is no clearer statement of illegality.

Now, you can disagree that the UNSC should be the arbiter of legality, but you can’t argue under our current (admittedly weak) system of int’l law that the Iraq was legal when the UNSC said it wasn’t.

As for Iran, I agree with Ron Paul: leave them alone and stop making a mountain out of a molehill. We care about Iran here in the US primarily because of Israel. Iran is no threat to the US. But they might be a threat to Israel. They are NOT an existential threat to Israel because, as Ron Paul and many others have pointed out, Israel has a rather good deterrent to attack in the form of a few hundred nuclear weapons. Hmmm.

So Iran’s threat to Israel is one of regional hegemony, not existential or physical. Israel wants to be more free to project power (with the US, of course) in the Middle East. And because Iran is the primary rhetorical opposition, with some token physical opposition in terms of supporting various groups opposing the US and Israel, Iran has become enemy #1. Obama has now bought into this game because he sees it as an easy way to win “strong on national security points” vis a vis indepedent voters. Foreign policy is always the easy way to go in the US to win non-liberal voters over. And the world consistently suffers because of this unfortunate feature of our political system.

I worry far more about Pakistan as a real threat to global security because they’re highly unstable, have a huge population of radicals that we are further radicalizing through our illegal attacks on Pakistani soil, and because they have the bomb. We already KNOW that A Q Khan’s network was responsible for providing at least some nuclear weaponry know-how to North Korea. And yet we continue to hear the ridiculous claims about Iran as an existential threat to Israel and as a major threat to the US. Please.

As for bombing Iran’s nuclear facilities, of course such an action would be blatantly illegal under int’l law. That would be a clear example of “preventive war,” which has no legal precedent.

What is so hard to understand about nations not being able to engage in aggression? Aggression is defined as illegitimate use of force by nation-states. Hitler offered all sorts of rationales for his invasions of neighboring countries. How on earth would you distinguish for example, Hussein’s own war against Kuwait in 1990 (due to his concerns about Kuwait taking oil that Hussein thought belonged to him), and an attack by the US and/or Israel on Iran? Just because we’re the good guys and they’re the bad guys? That’s what Hussein thought.

The entire point of int’l law, and the modern UN system created after WWII, was to provide a rational basis for distinguishing between self-defense (legitimate use of force) and aggression (illegitimate use of force).

Let me ask you: what would your preferred system of int’l law look like? Who would enforce it? And would it accord equal rights to defense and sovereignty to all nations, regardless of power or internal politics?

» on 10.31.11 @ 12:24 PM

Wireless, I’ve responded to your points on the illegality of the Iraq War and you’ve ignored mine. Clearly, we’re not going to reach agreement on this but let me end this particular sub-topic by stating that your arguments would lose badly before any competent entity asked to address this issue. Many legal issues are pretty fuzzy and good arguments can be made for both or more sides. But this issue is quite clear: under our current system of int’l law, with the UN Charter as its basis, the Iraq Was patently illegal. In other words, your arguments hold absolutely no legal water.

And let’s not forget that regime change is explicitly forbidden under int’l law, another reason the Iraq War was illegal.

Powell himself stated, to obtain Syria’s vote in favor of Council Resolution 1441 (the last one before the war began), advised Syrian officials that “there is nothing in the resolution to allow it to be used as a pretext to launch a war on Iraq.”

As further support for my view, which is shared by the vast majority of scholars, Kofi Annan, UN Secretary General at the time, stated that the invasion was illegal:

Richard Perle, who I suspect you may generally agree with, also made news by agreeing with me, stating that the law was illegal but still justified:

Now, please address my questions I asked you before (in my last post) with respect to your preferred system of int’l law. I suspect you haven’t been through this exercise before and when you try it you’ll see clearly that the views you espouse are in fact veiled “might makes right.” And that is, of course, not the basis for any system of law. It’s the opposite of law.

Benjamin Ferencz, a chief US prosecutor at the Nuremberg Trials after WWII, held to establish accountability for Nazi war crimes, stated with respect to Bush and the Iraq War in 2006: “a prima facie case can be made that the United States is guilty of the supreme crime against humanity, that being an illegal war of aggression against a sovereign nation.”

So not only was the Iraq War illegal, it amounts to a clear case of aggression: the supreme international crime.

As for Iran, if you’re really worried about them getting nukes (despite the US 2007 National Intelligence Estimate, from 16 intelligence agencies, concluding that Iran had given up any previous efforts to acquire a nuclear bomb), why not start with complying with our own legal obligations under the Comprehensive Test Ban Treaty (CTBE)?

More generally, didn’t the WMD fiasco re Iraq teach you anything? Are you really ready to dive into yet another major Middle Eastern conflict in Iran, based on equally flimsy suspicions of WMD and bad intentions? What on earth would it take to show you that war is not the answer to these kinds of issues?

» on 11.01.11 @ 05:02 PM

I’ll give you credit for being dogged but that doesn’t make you any less wrong.  For the sixth time, as you can’t seem to understand the difference between political and legal considerations, the US, Britain and over 20 other countries that committed troops to the war, concluded that previous UN resolutions gave them all the authority they needed to resume hostilities with Iraq. 

You may not agree with them but the fact of the matter is these governments, including their government lawyers, concluded previous UN resolutions were all that was needed.  The British wanted to rally more support so they asked the US to try and get another resolution but both governments made it perfectly clear they did not need one. 

So, you can keep saying it was illegal all you want but that does not make it so.  Take it to court if you’re so confident. 

But this whole discussion raises some interesting questions, no?  If the war was so clearly “illegal”, where is the UN resolution condemning it?  Where’s the sanctions against the US and the “coalition of the willing”?  Where’s all the international consequences this august body of international law is going to apply against the willful violators of said laws?  Surely, if the UN is so important and such a legitimate arbiter of international law they would be able to enforce their own rules.  Just asking.

In fact, this entire argument you are making unwittingly makes my point about how feckless and useless the UN actually is.  If indeed this really was such an egregious violation of international law as you assert, shouldn’t this magical body of the UN be able to do something about it?  If this is such a “supreme international crime” as you insist then why doesn’t somebody do something about it?

They can’t and wouldn’t even if they could.  The UN is a joke.  It is a tool that is occasionally useful, but more often than not is more of a nuisance.  Why you would submit US sovereignty and interests to a body filled with countries that wish us ill is horrifying frankly.  Your utopian and naive views of the world are at great odds with both history and the realities of geopolitics. 

You are also in willful denial about Iran.  They are clearly trying to make a bomb.  The only people who don’t understand that are the blame America first types like yourself who are fortunately in the distinct minority.  Allowing that country to obtain nuclear weapons is huge mistake.  Absolutely nothing good can come from that.  Not one thing.  Let’s pray that doesn’t happen, because all of the potential consequences are decidedly bad.  Grow up.  Fortunately we still have some adults looking after the best interests of our country and global security.

» on 11.01.11 @ 07:09 PM

Wireless, it now seems that you’re being wilfully obtuse. Again, you ignore my comments after I have addressed yours.

You claim that national determinations of legality are sufficient for int’l legality. Isn’t the flaw in this reasoning as plain as the nose on your face?

Hussein thought his actions were legal in Kuwait.

Hitler thought his actions were legal in WWII.

National determinations of legality do NOT make those actions legal under int’l law. Again, the whole point of int’l law is to provide an int’l framework of law that transcends national determinations that may or may not amount to aggression.

You are right on one thing: the UN is extremely weak in enforcing int’l law. And this is primarily because of the permanent five’s veto power and funding issues.

But my point in this piece and others has been that the US should recognize the growth of a more multi-polar world, and thus the inevitable decline of US hegemony in the coming decade or two, and work feverishly to establish a system of int’l law, through the UN or other bodies, that actually has some teeth.

Only in this manner will we be able to prevent either massive conflicts in the future, between the US and rising powers, or be subjected in some manner to a “Chinese century” (due to their rapid rate of growth and population) or “Russian century” (due to their massive fossil fuel wealth). It’s about seeing the inevitable path the globe is on now and doing something while we still can to ensure that we have a system of int’l law in the future that actually means something.

Finally, let me ask you one more time: what is your preferred system of INTERNATIONAL law (not domestic law) and how is this different than “might makes right”? Everything you’ve written so far is might makes right and that’s the opposite of the rule of law.

» on 11.02.11 @ 01:51 AM

I’m not being obtuse at all.  We have a fundamental disagreement.  I think, and the governments in the coalition of the willing agree with me, that they had all the authorization they needed.  You think otherwise.  We’re not going to solve it here but if you are so cocksure about it bring a lawsuit and we’ll see how it goes.

I have no problem with a legit, responsible, sensible forum for international relations, trade and defense issues.  There are many already like the G-20, NATO, SEATO, ANZUS, WTO, etc.  The UN in my opinion is pretty much of a lost cause.  It is corrupt beyond redemption and resembles the Star Wars bar scene more than a legit and useful organization.  Giving maniacs/despots like Hussein, Qaddafi, Idi Amin, the Iranians, Hugo Chavez, Castro, etc. an equal and legitimate voice in world affairs is idiotic.  Giving repressive and corrupt regimes like Russia and China a veto is just dumb.  They have goals that are at odds with most of the rest of civilized countries.

I gave my suggestion as what to do long ago in a previous post.  I think we bag out of the UN, kick them out of NY.  It will fall apart quickly and we start over with a serious group of countries that actually make this world work.  Invite responsible, democratic governments to join the “Club for Democracies”.  To qualify you have to have representative democratically elected government, free market economies, etc.  No commies, no dictators, no people that abuse their populace, etc.  Economic ties, trade, contract law, intellectual property rights, private property rights, etc are the basis upon which you build a world community that has less reason to go to war.  But war will never leave us, it is part of the human condition and human nature.

You hold out all these completely unrealistic hopes that you can make this organization work.  I don’t see on what basis you can hold these aspirations.  Time to cut our losses and start over.

» on 11.02.11 @ 03:52 PM

Wireless, one last comment and I think I’ll move on from this thread: you can’t claim legality under UN resolutions for the invasion of Iraq after being told “no” by the UN Security Council to an additional resolution authorizing war. That should be pretty simple and unequivocal but you’re so wedded to your a priori belief that the war was legal that you can’t see this extremely obvious point.

What you argue for as an alternative to our current weak system of int’l law would be even weaker. The UN exists today as a compromise between national sovereignty for all nations and the desire of certain nations that were prominent at the time the UN was created to preserve their “more equal than others” status (the permanent five of US, UK, France, Russia and China).

The UN does NOT provide an equal voice to all nations, including the nations you list that you don’t like. Rather, it provides an equal voice in some forums, like the General Assembly and UNESCO.

But by far the most important body is the Security Council and equality does not hold sway there at all. Rather, the P5 have permanent veto power and the other ten members of the SC rotate through and have temporary voting power.

Last, the entire point of int’l law, as with law more generally, is that you give up some freedoms in return for greater benefits than those you are giving up. Domestically, we as individuals give up the right to kill our neighbor in a fight in order to enjoy the protections of law and decent society.

Internationally, the point of that int’l legal system that has the UN Charter as its basis, is that nations give up some ability to do whatever they want with respect to other nations in order to help create a more just world order and to help protect themselves from aggression by others.

So nations under the UN system may not legally wage aggression. They can wage war in self-defense. But preventive war is not self-defense, it’s aggression.

So Bush, by waging preventive war against the UNSC’s wishes, committed aggression.

The benefit of giving up some of our own right, as the US, to wage aggression is to be able to claim, both morally and with the force of our arms, when required, that other nations can’t wage aggression.

Hypocrisy is a powerful deterrent to good will. The US has been hypocritical for far too long and by working to strengthen a just system of int’l law the US will reap good will through reduction in hypocrisy.

» on 11.02.11 @ 03:53 PM


PS:  here’s something from the IAEA, one your beloved international organizations, regarding Iran’s nuclear activities.  Still think they’re not working on a bomb?

» on 11.02.11 @ 07:18 PM


I’m done as well but you made an assertion that makes my point.  The UN failing to give an additional authorization for an authorization that already existed, does not make the original authorization void.  If they intended to stop resumption of hostilities they would have passed a resolution saying such.  They did not.  Didn’t even try.

So, my point about this being a political exercise stands.  They may not have approved another resolution but they didn’t rescind their past ones.  Status quo.  The previous resolutions remained in place which clearly allowed for a resumption of hostilities.

» on 11.02.11 @ 11:07 PM


Tam doesn’t care if Iran possesses an atomic weapon, because they are a sovereign state and, therefore, are allowed to do whatever they want. Even though they are an Islamic state run by irrational fanatical religious fundamentalists, and have already threatened to wipe a country off the face of the map, according to Tam’s bizarre notion of international law, we must allow them to have their nuclear bomb regardless how destabilizing it would be for the whole region. The problem is that we have a President who actually thinks like this, which just tells you how radical and out of the mainstream Tam’s views really are considering that he disapproves of Obama.

» on 11.13.11 @ 09:50 PM


Topic of Al-Alawki came up in the last GOP debate.  Newt explained quite well how you are incorrect in your assertions:

Where is he wrong?

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