A Worse Bybee Memo

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Jay Bybee wrote another memo that nobody has noticed, one purporting to authorize crimes far worse than torture, the same crimes the torture was itself intended to create false justifications for. On October 23, 2002, Assistant Attorney General Bybee signed a 48-page memo to the “counsel to the president” (Alberto Gonzales) titled “Authority of the President Under Domestic and International Law to Use Military Force Against Iraq.”

This was another secret law, but instead of authorizing particular uses of torture (which in reality were engaged in prior to the memos), this one authorized any president to single-handedly commit what Nuremberg called “the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” And while the torture memos extensively and grotesquely limited the days of sleep deprivation and the hours of waterboarding, the aggressive war memo included only a single paragraph at the bottom of page 47 requiring that:

“Were the President to determine that the use of force in self-defense is necessary to counter the threat posed by Iraq’s WMD program, such force should be proportional; in other words, it should be limited to that which is needed to eliminate the threat posed by Iraq.”

When this memo was written, our president, vice president, and top cabinet officials were screaming about Iraq’s vast quantities of weapons, but Bybee was already crafting his justifications around the idea of weapons “programs.”

The result was guaranteed to be massive death, no matter how “proportional” to the nonexistent threat. But the permission was also guaranteed to be wildly exceeded by anybody’s definition. The result has been 1.2 – 1.3 million deaths according to Just Foreign Policy’s updated figure based on the Johns Hopkins / Lancet report, and according to the British polling company Opinion Research Business’s estimate as of August 2007.

According to the United Nations High Commissioner for Refugees (UNHCR), the number of Iraqis who have fled their homes has reached 4.7 million. If these estimates are accurate, a total of nearly 6 million human beings have been displaced from their homes or killed. Many times that many have certainly been injured, traumatized, impoverished, and deprived of clean water and other basic needs, including the need to have parents.

And what has accumulated in the evil of the whole? The current occupation of Iraq has seen the United States target civilians, journalists, hospitals, and ambulances; use anti-personnel weapons including cluster bombs in densely settled urban areas; use white phosphorous as a weapon; use depleted uranium weapons; employ a new version of napalm found in Mark 77 firebombs; engage in collective punishment of Iraqi civilian populations; including by blocking roads, cutting electricity and water, destroying fuel stations, planting bombs in farm fields, demolishing houses, and plowing down orchards; detaining people without charge or legal process without the rights of prisoners of war; imprisoning children; torture; and murder.

Michael Haas has published a well-documented book with the clear title: George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes. Jay Bybee’s liability must not be minimized.

Bybee’s memo declares that a president has the power to launch wars. Period. The “authorization to use force” passed by Congress is treated as gravy on top of this basic power. According to Bybee’s copy of the U.S. Constitution, Congress can “issue formal declarations of war.” According to mine, Congress has the power “to declare war,” as well as every related substantive power. In fact, there are no incidental formal powers anywhere in my copy of the Constitution.us-constitution

Bybee dismisses the War Powers Act by citing Nixon’s veto of it rather than the law itself, and upholds the “authorization to use force” without mentioning the requirements it included for the president, requirements he later met by lying about weapons and ties to 9-11. Bybee cites letters written by Bush as authoritative. He even cites a Bush signing statement. And, of course, he cites and relies on previous memos produced by his office, the Office of Legal Counsel in the Department of Justice.

Bybee relies heavily on the “Bill Clinton sort-of did it and might have done it, and therefore it is legal,” argument. For good measure, he throws in Truman and Bush Sr. and Kennedy and Reagan, not to mention an Israeli ambassador’s opinion of a U.N. declaration condemning an aggressive attack by Israel. The thrust of the argument is that, because Bush Sr. and Clinton launched strikes into Iraq it’s OK for Bush Jr. to launch a whole lot of them. This would be the same as arguing that because Bush Jr. and Obama launched strikes into Pakistan, Obama or any future president can launch a full-scale war there. Legally, this is nonsense. The strikes are as illegal as the war would be. Politically, it’s something to consider: do we really want to maintain silent acceptance of such strikes?

Bybee claims not only that a president can simply launch any war he wants, and that the “authorization to use force” somehow adds to that complete and total power, but also that — in terms of international law — attacking Iraq would be justified both as authorized by the UN Security Council and as an act of self-defense. The war would not be so much a new war, Bybee claims, as the suspension of a cease-fire that Iraq suspended first. And the Security Council would have authorized a war even though the Security Council itself might claim otherwise. Bybee redefines self-defense as “anticipatory self-defense” and argues that the authors of the UN Charter could never possibly have meant otherwise. And he adds that, in an age of nuclear weapons, anticipatory self-defense can justify launching a war against any nation that might conceivably acquire nukes, even if there was no reason to think that nation would use them to attack yours:

“We observe, therefore, that even if the probability that Iraq itself would attack the United States with WMD, or would transfer such a weapon to terrorists for their use against the United States, were relatively low, the exceptionally high degree of harm that would result, combined with a limited window of opportunity and the likelihood that if we do not use force, the threat will increase, could lead the President to conclude that military action is necessary to defend the United States.”

This memo justified a war of aggression and all the crimes and abuses of power abroad and at home that were justified by the war. Jay Bybee has a lifetime appointment as a federal judge wearing black robes drenched in the crimson blood of his victims. His crimes are on paper in black and white for the world to see. If he is not impeached and prosecuted, similar horrors await our planet in the near future.

David Swanson

David Swanson is the author of the upcoming book “Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union” by Seven Stories Press and of the introduction to “The 35 Articles of Impeachment and the Case for Prosecuting George W. Bush” published by Feral House and available at Amazon.com. Swanson holds a master’s degree in philosophy from the University of Virginia. He has worked as a newspaper reporter and as a communications director, with jobs including press secretary for Dennis Kucinich‘s 2004 presidential campaign, media coordinator for the International Labor Communications Association, and three years as communications coordinator for ACORN, the Association of Community Organizations for Reform Now. Swanson is Co-Founder of AfterDowningStreet.org, creator of ConvictBushCheney.org and Washington Director of Democrats.com, a board member of Progressive Democrats of America, the Backbone Campaign, and Voters for Peace, a member of the legislative working group of United for Peace and Justice, and convener of the accountability and prosecution working group of United for Peace and Justice.

Republished with permission from AFterDowningStreet.

Published by the LA Progressive on May 5, 2009
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