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MSANet: No War Against Afghanistan!
By Prof. Francis A. Boyle
1/11/2001 5:52 pm Thu
NO WAR AGAINST AFGHANISTAN!
By Prof. Francis A. Boyle
Speech at Illinois Disciples
Professor Boyle's talk for the Progressive Resource/Action
Cooperative (PRC) "The International Struggle for Peace: Background to the
War in Afghanistan" given October 18 at the Illinois Disciples
(unedited, uncorrected transcript)
Thank you and I'm very happy to be here this evening once again at the Illinois
Disciples Foundation which has always been a center for organizing for peace
justice and human rights in this area ever since I first came to this community
from Boston in July of 1978 and especially under its former minister my friend
Jim Holiman. And I also want to thank Joe Miller of the Vietnam Veterans
Against the War and Jeff Machoda for inviting me to speak here this evening.
People of my generation still remember how important it was for the
Vietnam Veterans Against the War to be organized and to speak out against
the Vietnam War and they continue to serve as a voice for peace in the
world for the past generation and likewise for Jeff Machoda.
Whenever anyone calls me and asks say I want to organize something on
peace, justice, human rights, social welfare - I always say talk to Jeff.
He's the best in this entire area for something of that nature. I want to
start out with my basic thesis that the Bush administration's war against
Iraq cannot be justified on the facts or the law. It is clearly illegal.
It constitutes armed aggression. It is creating a humanitarian catastrophe
for the people of Afghanistan. It is creating terrible regional
instability. Right now today we are having artillery barrages across the
border between India and Pakistan which have fought two wars before over
Cashmere and yet today are nuclear armed.
The longer this war goes on the worse it is going to be not only for the
millions of people in Afghanistan but also in the estimation of the 1.2
billion Muslims of the world and the 57 Muslim states in the world. None
of which believe the Bush administration's propaganda that this is not a
war against Islam. Now let me start first with the facts.
As you recall Secretary of State Colin Powell said publicly they were
going to produce a white paper documenting their case against Osama bin
Laden and their organization Al Qaeda. Well, of course, those of us in the
peace movement are familiar with white papers before. They're always laden
with propaganda, half-truths, dissimulation, etc. that are usually very
easily refuted after a little bit of analysis. What happened here? We
never got a white paper produced by the United States government. Zip,
What did we get instead? The only statement of facts that we got from an
official of the United States government was Secretary of State Colin
Powell himself. And let me quote from Secretary Powell. This is the
October 3 edition of the New Speak Times. "The case will never be able
to be described as circumstantial. It's not circumstantial now." Well
as a lawyer if a case isn't circumstantial, it's nothing. That's the
lowest level of proof you could possibly imagine is a circumstantial
Yes, the World Court has ruled that a state can be found guilty on the
basis of circumstantial evidence provided there is proof beyond a
reasonable doubt. But here we have Secretary of State Colin Powell
admitting on behalf of the United States that the case against Bin Laden
and Al Qaeda is not even circumstantial.
If it's not even circumstantial then what is it? Rumor, allegation,
innuendo, insinuation, disinformation, propaganda. Certainly not enough to
start a war. In the same issue of the New Speak Times the U.S. Ambassador
who went over to brief our NATO allies about the Bush administration's
case against Bin Laden and Al Qaeda was quoted as follows: "One Western
official at NATO said the U.S. briefings which were oral without slides
or documentation did not report any direct order from Mr. Bin Laden nor
did they indicate that the Taliban knew about the attacks before they
That's someone who was at the briefings. What we did get was a white paper
from Tony Blair. Did anyone in this room vote for Tony Blair? No. And the
white paper is in that hallowed tradition of a white paper based on
insinuation, allegation, rumors, etc.
Even the British government admitted the case against
Bin Laden and Al Qaeda would not stand up in court and as a matter of fact
it was routinely derided in the British press. There was
nothing there. Now I don't know myself who was behind the terrorist
attacks on September 11. And it appears we are never going to find
Why? Because Congress in its wisdom has decided not to empanel a joint
committee of both Houses of Congress with subpoena power giving them
access to whatever documents they want throughout any agency of the United
States government including FBI, CIA, NSA, DSA. And to put these people
under oath and testify as to what happened under penalty of perjury.
We are not going to get that investigation and yet today we are waging war
against Afghanistan on evidence that Secretary of State Powell publicly
stated is not even circumstantial. Now let's look at the law
Immediately after the attacks President Bush's first statement that he
made in Florida was to call these attacks an act of terrorism. Now under
United States domestic law we have a definition of terrorism and clearly
this would qualify as an act or acts of terrorism.
For reasons I can get into later if you want, under international law and
practice there is no generally accepted definition of terrorism. But
certainly under United States domestic law this qualified as an act of
terrorism. What happened?
Well again according to the New Speak Times, President
Bush consulted with Secretary Powell and all of a sudden they changed the
rhetoric and characterization of what happened here. They now
called it an act of war. And clearly this
was not an act of war. There are enormous differences in how you treat an
act of terrorism and how you treat an act of war. We have dealt with acts
of terrorism before. And normally acts of terrorism are dealt with as a
matter of international and domestic law enforcement.
And in my opinion that is how this bombing, these incidents, should have
been dealt with. International and domestic law enforcement indeed there
is a treaty directly on point. Although the United Nations was unable to
agree on formal definition of terrorism they decided, let's break it down
into its constituent units and deal with it peace-wise. Let's criminalize
specific aspects of criminal behavior that we want to stop.
The Montreal Sabotage Convention is directly on point. It criminalizes the
destruction of civilian aircraft while in service. The United States is a
party. Afghanistan is a party. It has an entire legal regime to deal with
this dispute. The Bush administration just ignored the Montreal Sabotage
Convention. There was also the Terrorist Bombing Convention. That is also
directly on point and eventually the Bush administration just did say,
well, yes, our Senate should ratify this convention. It's been sitting in
the Senate for quite some time lingering because of the Senate's
opposition to international cooperation by means of treaties on a whole
series of issues.
Indeed, there are a good 12-13 treaties out there that deal with various
components and aspects of what people generally call international
terrorism. That could have been used and relied upon by the Bush
administration to deal with this issue. But they rejected the entire
approach and called it an act of war. They invoked the rhetoric
deliberately of Pearl Harbor. December 7, 1941.
It was a conscience decision to escalate the stakes, to escalate the
perception of the American people as to what is going on here. And of
course the implication here is that if this is an act of war then you
don't deal with it by means of international treaties and agreements. You
deal with by means of military force. You go to war. So a decision was
made very early in the process. We were going to abandon - junk - ignore
the entire framework of international treaties and agreements that had
been established for 25 years to deal with these types of problems and
basically go to war. An act of war has a formal meaning. It means an
attack by one state against another state. Which of course is what
happened on December 7, 1941. But not on September 11, 2001.
And. again, I repeat here Secretary Powell saying there isn't even a
The next day, September 12, the Bush administration went into the United
Nations Security Counsel to get a resolution authorizing the use of
military force and they failed. It's very clear if you read the
resolution, they tried to get the authority to use force and they failed.
I think it is a fair comparison Bush Jr. to Bush Sr. Bush Sr. got a
resolution from the Security Counsel authorizing member states to use "all
necessary means" to expel Iraq from Kuwait. They originally wanted
language in there expressly authorizing the use of military force. The
Chinese objected - so they used the euphemism "All necessary means." But
everyone knew what that meant. If you take a look at the resolution of
September 12 that language is not in there. There was no authority to use
military force at all. They never got any. Having failed to do that the
Bush administration then went to the United States Congress and using the
emotions of the moment tried to ram through some authorization to go to
war under the circumstances. We do not know exactly what their original
proposal is at that time.
According to a statement made by Senator Byrd in the New Speak Times,
however, if you read between the lines it appears that they wanted a
formal declaration of war along the lines of what President Roosevelt got
on December 8, 1941 after Pearl Harbor. And Congress refused to give them
that. And a very good reason. If a formal declaration of war had been
given it would have made the president a constitutional dictator. We would
now all be living basically under marshal law. Congress might have just
picked up and gone home as the House did today. Which, by the way, was
encouraged by President Bush. It was his recommendation. And you'll
recall, as a result of that declaration of war on December 8, 1941, we had
the amphiumas Koromatsu case where Japanese- American citizens were
rounded up and put in concentration camps on the basis of nothing more
than a military order that later on was turned out to be a gross
misrepresentation of the factual allegation that Japanese-Americans
constituted some type of security threat. If Bush had gotten a declaration
of war, we would have been on the same footing. And the Koromatsu case has
never been overturned by the United States Supreme Court.
Instead, Congress gave President Bush Jr. what is called a War Powers
Resolution Authorization. Under the War Powers Resolution of 1973 that was
passed over President Nixon's veto, namely 2/3rds majority in both houses
of Congress and designed to prevent another Tonkin Gulf Resolution and
another Vietnam war.
Now if you read the resolution, which he did get, and only one courageous
member of Congress, Barbara Lee, an African-American representative from
Oakland voted against it as a matter of principle. This resolution,
although it is not as bad as a formal declaration of war, is even worse
than the Tonkin Gulf Resolution. It basically gives President Bush a blank
check to use military force against any individual organization or state
that he alleges - notice hisipsa dictum - was somehow involved in
the attacks on September 11 or else sheltered, harbored, or assisted
individuals involved in the attacks on September 11.
In other words Bush now has a blank check pretty much to wage war against
any state he wants to from the United States Congress. And it was then
followed-up by Congress with a $40 billion appropriation as a down payment
for waging this de facto war. Very dangerous - this War Powers Resolution
Authorization. No real way it can be attacked in court at this point in
time. In the heat of the moment, Congress gave him this authority. It is
still there on the books. Again, let's compare and contrast this
resolution with the one gotten by Bush Sr. in the Gulf Crisis. Bush Sr.
got his security counsel resolution. He then took it to Congress for
authorization under the War Powers Resolution and they gave him a very
precise authorization to use military force for the purpose of carrying
out the security counsel resolution - that is only for the purpose of
expelling Iraq from Kuwait. And indeed that is what Bush Sr. did. He
expelled Iraq from Kuwait. He did move north. He stopped short south of
Bosra saying that's all the authority I have. I'm not here to approve what
Bush Sr. did in that war but simply to compare it to Bush Jr. Now Bush
Sr. has been criticizing saying well you should have marched all the way
to Bagdad but he had no authority by the security counsel to do that and
he had no authority from the Congress to do that either.
Again, compare that to Bush Jr.'s resolution of September 14 that
basically gives him a blank check to wage war against anyone he wants to
with no more than his ipsa dictum. It's astounding to believe. Even worse
than Tonkin Gulf. In addition Bush Jr. then went over to NATO to get a
resolution over from NATO and he convinced NATO to invoke Article 5 of the
NATO Pact. Article 5 of the NATO Pact is only intended to deal with the
armed attack by one state against another state. It is not, and has never
been, intended to deal with a terrorist attack. The NATO Pact was supposed
to deal in theory with an attack on a NATO member state by a member of the
Warsaw Pact and the Soviet Union. With the collapse of both the Warsaw
Pact and the Soviet Union, there was no real justification or pretext
anymore for the continued existence of NATO.
Bush Sr. then in an effort to keep NATO around, tried to transform its
very nature to serve two additional purposes. 1) - policing Eastern Europe
and we saw that with the illegal war against Serbia and 2) intervention in
the Middle East to secure the oil fields. And the NATO counsel approved
this. The problem the NATO Pact, the treaty setting up NATO, provides no
authorization to do this at all and indeed would have to be amended by the
parliaments of the NATO member states to justify either policing Eastern
Europe or as an interventionary force in the Middle East. The invocation
of NATO Article 5, then, was completely bogus.
The Bush administration was attempting to get some type of multi-lateral
justification for what it was doing when it had failed at the United Nations
Security Counsel to get authorization. The Bush administration tried again
to get more authority from the Security Counsel and all they got was a
presidential statement that legally means nothing. They tried yet a third
time, September 29, before they started the war to get that authorization
to use military force and they got stronger language. But still they failed
to get any authorization from the Security Counsel to use military force for
any reason. Then what happened? The new U.S. Ambassador to the United Nations,
John Negroponte, sent a letter to the Security Counsel asserting Article 51
of the United Nations Charter.
Now some of us are familiar with Negroponte. He was U.S. Ambassador in
Honduras during the Contra War. He has the blood of 35,000 Nicaraguan
civilians on his hands and the only way Bush could get him confirmed was
that he rammed him through the Senate the day after the bombings. So
whenever you see Negroponte on the television talking to you, remember
this man has the blood of 35,000 people, most of whom are civilians, on
his hands. That's seven times anything that happened in New York. Seven
times. The letter by Negroponte was astounding. It said that the United
States reserves its right to use force in self-defense against any state
that we feel is necessary in order to fight our war against international
terrorism. So in other words, they failed on three separate occasions to
use to get formal authority from the Security Counsel and now the best
they could do is fall back on another alleged right of self-defense as
determined by themselves.
Very consistent with the War Powers Resolution authorization that Bush did
indeed get from Congress on September 14. I was giving an interview the
other day to San Francisco Chronicle and the reporter said is there any
precedent for the position here being asserted by Negroponte that we are
reserving the right to go to war in self-defense against a large number of
other states as determined by ourselves. I said yes, there is one very
unfortunate precedent. That's the Nuremberg Tribunal of 1946 where there
the lawyers for the Nazi defendants took the position that they had
reserved the right of self-defense under the Kellogg Breand Pact of 1928 -
the predecessor to the U.N. Charter. And self-defense as determined by
In other words, no one could tell them to the contrary. So at Nuremberg,
they had the hudspah to argue the entire second world war was a war of
self-defense as determined by themselves and no one had standing to
disagree with that self-judging provision. Well of course the Nuremberg
Tribunal rejected that argument and said no - what is self-defense can
only be determined by reference to international law. That has to be
determined by an international tribunal. No state has a right to decide
this for themselves.
Clearly what is going on now in Afghanistan is not self-defense. Let's be
honest. We all know it. At best this is reprisal, retaliation,
vengeance, catharsis - call it what you want - it is not self-defense.
And retaliation is never self-defense.
Indeed that was the official position of the United States government.
Even during the darkest days of the Vietnam War when former Under
Secretary of State Eugene V. Rosca tried to get the state department to
switch their position, they refused and continued to maintain. No,
retaliation is not self-defense. And this is not self-defense - what we
are doing in Afghanistan. Since none of these justifications and pretexts
hold up, as a matter of law, then, what the United States government today
is doing against Afghanistan constitutes armed aggression. It is illegal.
There is no authority for this.
Indeed if you read on the internet certainly not in the mainstream U.S.
news media, you will see that is the position being taken in almost every
Islamic country in the world. Where are the
facts? Where is the law? They aren't there. This is apparent to
the entire world. It's apparent in Europe. It's apparent in the Middle
East. It is obvious to the 1.2 billion Muslims of the world. Are any
Muslim leaders involved in military action against Afghanistan? Unlike
what happened with Iraq - no. Have any of them volunteered military forces
to get involved here. A deafening silence. They all know it is wrong.
Now the government of Afghanistan made repeated offers even as of
yesterday to negotiate a solution to this dispute. Even before the events
of September 11, negotiations were going on between the United States and
the government of Afghanistan over the disposition of Bin Laden. They had
offered to have him tried in a neutral Islamic court by Muslim judges
applying the law of Shareel. This was before the latest incident. We
rejected that proposal. After September 11 they renewed the offer. What
did President Bush say - no negotiations. There's nothing to negotiate.
Here is my ultimatum. Well the problem is again the United Nations Charter
requires peaceful resolution of disputes. It requires expressly by name
Likewise that Kellogg Breand Pact I mentioned under which Nazis were
prosecuted at Nuremberg to which Afghanistan and the United States are
both parties requires peaceful resolution of all disputes and prohibits
war as an instrument of national policy. And yet that's exactly what we
are doing today. Waging war as an instrument of national policy. And then
again on Sunday as he came back from Camp David with the latest offer
again by the government of Afghanistan - we are willing to negotiate over
the disposition of Mr. Bin Laden. I don't know how many of you saw the
President get off the helicopter. It was surreal. He went ballistic.
There'll be no negotiations. I told them what to do. They better do
Again, those are not the requirements of the United Nations Charter and
the Kellogg Breand Pact. Indeed, if you read the ultimatum that President
Bush gave to the government of Afghanistan in his speech before Congress
you will see it was clearly designed so that it could not be complied with
by the government of Afghanistan. No government in the world could have
complied with that ultimatum. And indeed, striking similarities with the
ultimatum given by Bush Sr. to Tarik in Geneva on the eve of the Gulf War.
That was deliberately designed so as not to be accepted - which it was not.
Bush calling for the children of America to send $1 to
the White House. This is propaganda. This is not serious. And
the winter is coming in Afghanistan. Latest estimate that I've seen is
that maybe 100,000 or more are going to die if we don't stop this war. So
what's really going on here? Why are we bombing Afghanistan? Why are we
doing this? Is it retaliation? Is it vengeance? Is it some bloodless? No,
The people who run this country are cold calculating people. They know
exactly what they're doing and why they're doing it. And during the
course, now, since the bombing started in the last twelve days, it's
become very clear what the agenda is. Secretary of Defense Rumsfeld flew
to Uzbekistan and concluded an agreement with the dictator who runs that
country. Accused of massive violations of human rights that the United
States government will protect Uzbekistan. Now first Secretary of Defense
has no constitutional authority to conclude such agreement in the first
place. Putting that issue aside, however, it's very clear what's going on
here. The Pentagon is now in the process of establishing a military base
in Uzbekistan. It's been in the works for quite some time. They admit,
yes, special forces have been over there for several years training their
people. Partnership for peace with NATO and now it's becoming apparent
what is happening. We are making a long-term military arrangement with
Uzbekistan. Indeed it has been reported, and you can get press from that
region on the internet - India, Pakistan, tha area - that Uzbekistan now
wants a status of forces agreement with the United States. What's a status
of forces agreement. It's an agreement that permits the long-term
deployment of significant numbers of armed forces in another state.
We have status of forces agreements with Germany, Japan and South Korea.
We have had troops in all three of those countries since 1945. And when we
get our military presence, our base, that is right now being set up in
Uzbekistan it's clear we're not going to leave. It's clear that this
agreement, unconstitutional agreement, between Rumsfeld and Karimov is to
set the basis and say - we have to stay in Uzbekistan for the next
10-15-20 years to defend it against Afghanistan where we've created total
chaos. This is exactly the same argument that has been made to keep the
United States military forces deployed in the Persian Gulf now for ten
years after the Gulf War. We are still there. We still have 20,000 troops
sitting on top of the oil in all these countries. We even establish a
fleet to police this region in Bahrain. More currently six to date. We
never had any intention of leaving the Persian Gulf. We are there to stay.
The movers and shakers - they paid enormous attention to
Central Asia and the oil resources there. Indeed shortly after the
collapse of the Soviet Union and the assent independence of the states in
1991. You saw all sorts of articles in the Wallstreet Journal about how
Central Asia and our presence in Central Asia has become a vital national
security interest of the United States. We've proceeded to establish
relations of these states of Central Asia. We sent over special forces.
We're even parachuting the 82nd Airborne in Kazakstan. All reported in the
Wallstreet Journal. And in addition then since Central Asia is landlocked
you have to get the oil and natural gas out. How do you do that? Well one
way is to send it west but we wish to avoid Iran and Russia - highly
circuitous route, costs a lot of money, very insecure.
The easiest way to do it - construct pipelines south through Afghanistan,
into Pakistan and right out to the Arabian Sea. Unocal was negotiating to
do this with the government of Afghanistan. That's all in the public
record. Just as the Persian Gulf War against Iraq was about oil and
natural gas, I'm submitting this war is about oil and natural gas and also
outflanking China and getting a military base south of Russia. We are
going to be there for a long time. At least until all that oil and gas has
been sucked out and it's of no more use to us.
In my opinion that's really what is going on here. We should not be
spending a lot of time about who did what to whom on September 11. We need
to be focusing on this war - on stopping this war. We need to be focusing
on stopping the humanitarian tragedy against the millions of people of
Afghanistan right now today. And third, we need to be focusing on what
could very easily become a regional war.
The Pentagon launched this thing. Obviously they felt they could keep it
under control. That's what the people in August of 1914 thought too when
you read Barbara Tucuman's The Guns of August. Everyone figured the
situation could be kept under control and it wasn't and there was a world
war. 10 million people died. We're already seeing after President Bush
started this war artillery duels between India and Pakistan.
Massive unrest in all of these Muslim
countries and the longer the war goes on I submit the worse it is going to
become, the more dangerous it is going to become, the more unstable it is
going to become. In addition, finally, comes the Ashcroft Police State
Bill. No other word to describe it.
Bush failed to get that declaration of war which would have rendered him a
constitutional dictator. But it's clear that Ashcroft and his Federalist
Society lawyers took every piece of regressive legislation off the shelf,
tied it all into this antiterrorism bill, and rammed it through Congress.
Indeed if you're reading any of the papers yesterday and the day before,
members of Congress admit, yes, we didn't even read this thing. Another
Congressman said, right, but there's nothing new with that. Except on this
one - they're infringing the civil rights and civil liberties of all of us
moving us that much closer to a police state in the name of fighting a war
on terrorism, security, this, that, and the other thing. Notice the
overwhelming message from the mainstream news media - well we all have to
be prepared to give up our civil rights and civil liberties.
Even so-called liberals, Alan Dershowitz - oh let's now go along with the
national identity card. Outrageous. Larry Tribe, writing in the Wallstreet
Journal - well we're all going to have to start making compromises on our
civil rights and civil liberties. That's what's in store in the future for
us here at home; the longer this war against Afghanistan goes on and as
Bush has threatened will expand to other countries. We don't know how many
countries they have in mind. At one point they're saying Malaysia,
Indonesia, Somalia, Iraq, Libya. Deputy Secretary Wolfowitz talking about
ending states which is clearly genocidal. I could take that statement at
the World Court and file it and prove it as genocidal intent by the United
States government. So the longer we let this go on the more we are going
to see our own civil rights and civil liberties taken away from
As you know aliens - what we call aliens foreigners -
their rights are already gone. We now have 700 aliens who've
just been picked up and disappeared by Ashcroft and the Department of
Justice. We have no idea where these people are. They're being held on the
basis of immigration law, not criminal law.
Indefinite detention. What's the one characteristic they all had in common
- these foreigners - they're Muslims and Arabs, the scapegoats for this.
Everyone needs a scapegoat and it looks like we have one.
Let me conclude by saying that we still have our first amendment rights,
despite Ashcroft's best efforts. Despite the cowardice of both houses of
Congress where interestingly enough the so-called liberal democrats were
willing to give Bush and Ashcroft more than the conservative republicans
in the House. We still have our first amendment rights, freedom of speech,
freedom of association, freedom of assembly, freedom to petition our
government for redress of grievances. We are going to need to start to
exercise those first amendment rights now. For the good of the people of
Afghanistan, for the good of the people of that region of the world and
for the future of ourselves and our nature as a democratic society with a
commitment to the rule of law and the constitution.
Copyright © 2001 by Francis A. Boyle All rights reserved.