The Criminality of Nuclear Deterrence

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SPECIAL INTRODUCTION

George Bush, Jr. September 11th,

and the Rule of Law

George W. Bush was never elected President by the People of the United States of America. Instead, he was anointed for that Office by five Justices of the United States Supreme Court who themselves had been appointed by Republican Presidents. Bush Jr.’s installation was an act of judicial usurpation of the American Constitution that was unprecedented in the history of the American Republic. Had it occurred in a developing country, such a subversion of democratic process would have been greeted with knowing derision throughout the West. What happened in America could only be likened to a judicial coup d’état inflicted upon the American People, Constitution, and Republic. There should now be no doubt that the United States Supreme Court is governed by raw, naked, brutal, power politics. Justice has nothing at all to do with it. This Supreme Court’s constitutional sophistry proved a harbinger of the new administration’s disrespect for the Rule of Law, whether domestic or international.

Machiavelli Redux

When Bush Jr. came to power in January of 2001, he proceeded to implement foreign affairs and defense policies that were every bit as radical, extreme and excessive as the Reagan/Bush administrations had starting in January of 1981. To be sure, Bush Jr. had no popular mandate to do anything. Indeed, a majority of the American electorate had voted for his corporate- cloned opponent.

Upon his installation, Bush Jr.’s compassionate conservatism quickly revealed itself to be nothing more than reactionary Machiavellianism—as if there had been any real doubt about this during the presidential election campaign. Even the appointees to the Bush Jr. administration were pretty much the same as the original Reagan/Bush foreign affairs and defense experts, many of whom were called back into service and given promotions for policies ten to twenty years ago that many might argue had been crimes under international law.⁰¹ It was déjà vû all over again, as Yogi Berra aptly put it.

International Legal Nihilism

In quick succession the world saw the Bush Jr. administration repudiate the Kyoto Protocol on global warming, the International Criminal Court, the Comprehensive Test Ban Treaty (CTBT), an international convention to regulate the trade in small arms, a verification Protocol for the Biological Weapons Convention, an international convention to regulate and reduce smoking, the World Conference Against Racism, and the Anti-Ballistic Missile Systems Treaty, inter alia. To date the Bush Jr. Administration has not found an international convention that it likes. The only exception to this rule was its shameless exploitation of the 11 September 2001 tragedy in order to get the U.S. House of Representatives to give Bush Jr.fast-track trade negotiation authority so as to present the American People and Congress with yet another non-amendable fait accompli on behalf of American multinationals, corporations, banks, insurance companies, the high-tech and biotech industries, etc. The epitome of globalization, American-style.

More ominously, once into office the Bush Jr. administration adopted an incredibly belligerent posture towards the Peoples’ Republic of China (PRC), publicly identifying the PRC as America’s foremost competitor/opponent into the 21st Century. Their needlessly pugnacious approach towards the downing of a U.S. spy plane in China with the death of a Chinese pilot only exacerbated already tense U.S./Chinese relations. Then the Bush Jr. administration decided to sell high-tech weapons to Taiwan in violation of the 17 August 1982 Joint Communiqué of the USA and PRC that had been negotiated and concluded earlier by the Reagan/Bush administration. Finally came Bush Jr.’s breathtaking statement that the United States would defend Taiwan in the event of an attack by the PRC irrespective of Article I, Section 8, Clause 11 of the United States Constitution expressly reserving to Congress alone the right to declare war. President Jimmy Carter had long ago terminated the U.S.-Taiwan self-defense treaty.⁰²

For twelve years the Constitution and the Rule of Law — whether domestic or international — never deterred the Reagan/Bush administrations from pursuing their internationally lawless and criminal policies around the world. The same was true for the Clinton administration as well (such as invading Haiti; bombing Iraq, Sudan, Afghanistan, and Serbia). The Bush Jr. administration has behaved no differently from its lineal Machiavellian predecessors. Their bellicose handling of the 11 September 2001 tragedy was no exception to this general rule.

Indeed, the Bush Jr. administration proceeded to start its bombing campaign on the defenseless people of Afghanistan on Sunday, October 7 — not allowing the Sabbath to get in their way either, despite the fact that during the presidential election campaign Bush Jr. proudly stated that his favorite philosopher was Jesus Christ. Yet, as Machiavelli taught, the Prince must appear to be all religion,⁰³ especially when he goes to war.

11 September 2001

The Bush Jr. administration’s war against Afghanistan cannot be justified on either the facts, a paucity of which have been offered, or the law, either domestic or international. Rather, it is an illegal armed aggression that has created a humanitarian catastrophe for the twenty-two million people of Afghanistan and is promoting terrible regional instability. The longer Bush Jr.’s war against Afghanistan goes on –– and at this writing, Secretary of Defense Rumsfeld has stated that U.S. ground troops will remain in Afghanistan until at least the summer — the worse it is going to be not only for the millions of Afghan people but also in the estimation of the 1.2 billion Muslims of the world comprising 58 Muslim states, few of whom really believe the Bush Jr. administration’s propaganda that this is not a war against Islam.

In fact, the Bush Jr. war against Afghanistan has been akin to throwing a match into an explosives factory. Among its deleterious results, India and Pakistan, which have already fought two wars before over Kashmir and today are nuclear armed, are now standing nuclear-eyeball to nuclear-eyeball over Kashmir. Mimicking the Bush Administration’s response to September 11th, India has accused internal groups in Pakistan of the December 2001 attack on the Indian parliament, and demanded, without any offer of proof for its accusations, that Pakistan proceed against them or else face military reprisal. The continuing conflict and armed confrontation between India and Pakistan over Kashmir could readily go nuclear.

The Facts

There is not and may never be conclusive proof as to who was behind the terrible bombings in New York and Washington, D.C., on September 11, 2001. No point would be served here by making a detailed review of the facts that have so far emerged into the public record. Suffice it to say that the accounts provided by the United States government simply do not add up.

The October 3 edition of the New York Times recounted the definitive briefing by a U.S. ambassador to NATO officials on the alleged facts as follows:

One Western official at NATO said the briefings, which were oral, without slides or documents, did not report any direct order from Mr. bin Laden, nor did they indicate that the Taliban knew about the attacks before they happened.

A senior diplomat for one closely allied nation characterized the briefing as containing nothing particularly new or surprising, adding: It was rather descriptive and narrative rather then forensic. There was no attempt to build a legal case.

In other words, there was no real case against Al Qaeda, bin Laden, and the Taliban government of Afghanistan. Such was the conclusion of senior diplomats from friendly nations who attended the so-called briefing.

The Powell/Blair White Paper

Secretary of State Colin Powell publicly promised that they were going to produce a White Paper documenting their case against Osama bin Laden and the Al Qaeda organization concerning September 11. As those of us in the Peace Movement know all too well from previous international transgressions, these U.S. government White Papers are all too frequently laden with lies, propaganda, half-truths, dissimulation, disinformation, etc. that are usually very easily refuted after a little bit of research and analysis.

What happened here? We never received a White Paper produced by the United States government as publicly promised by Secretary Powell, who was later overridden by President Bush Jr. What we got instead was a so-called White Paper produced by British Prime Minister Tony Blair. Obviously, Blair was acting as Bush Jr.’s surrogate or, as the British press routinely referred to him, Bush’s pet-poodle. Tony Blair is neither an elected nor an appointed official of the U.S. government, not even an American citizen. Conveniently, no American official could be brought to task for or even questioned about whatever errors or inadequacies he might purvey.

The Powell/Blair White Paper fell into that hallowed tradition of a White Paper based upon insinuation, allegation, rumors, propaganda, lies, half- truths, etc. Even unnamed British government officials on an off-the-record basis admitted that the case against bin Laden and Al Qaeda would not stand up in court. As a matter of fact, the Blair/Powell White Paper was widely derided in the British news media. There was nothing there.

The Cover-Ups

Despite the clear import of the matter, at Bush Jr.’s request the U.S. Congress has so far decided not to empanel a Joint Committee of the House and of the Senate with subpoena power giving them access to whatever hard evidence they want throughout any agency of the United States government—including the National Security Council, FBI, CIA, NSA, DIA—and also to put their respective Officials under oath to testify as to what happened and why under penalty of perjury. Obviously a cover-up is underway for the express purpose of not determining (1) who was ultimately responsible for the terrible attacks of 11 September 2001; and (2) why these extravagantly funded U.S. intelligence agencies were either unable or unwilling to prevent these attacks despite numerous warnings of a serious anti-American attack throughout the Summer of 2001 – and yet, amazingly, could assert the identity of those responsible with such certainty in the space of hours thereafter so as to preclude any serious investigation of other possible perpetrators. For reasons not necessary to get into here, there is also an ongoing governmental cover-up of the obvious involvement of the Pentagon/CIA, or one of their contractors, in the attacks inflicting U.S.-produced weapons-grade anthrax upon those institutional components of American society that the American right-wing has traditionally viewed with antipathy: the Democratic Congressional leadership, and the media.

The Bin Laden Video

The so-called bin Laden Video was miraculously discovered in the rubble of a bombed-out house in the bombed-out city of Jalalabad by the CIA, who undoubtedly turned the Video over to the Pentagon’s Psyops People, who were operating in Afghanistan. The Pentagon then had the tape translated by outside experts, one of whom works at the Johns Hopkins School for Advanced International Studies (SAIS), where Deputy Secretary of Defense Paul Wolfowitz had just been his boss as SAIS Dean. The SAIS/Wolfowitz translator has not been giving any interviews.

The text of the translation itself admits it is not a verbatim transcript, but only provides messages and information flow, whatever that means. Admittedly the tape is disjointed and non-sequential. Since I am not a technical expert, I will not comment upon how easy it would be to falsify this video. I doubt very seriously that any fair, objective and impartial judge would admit this Video into evidence for consideration by a jury in a criminal case.

But let us put aside for the time being the long history of U.S. intelligence agencies operating both at home and abroad in order to manufacture evidence that suits the party line coming out of Washington, DC.⁰⁴ Let us further assume that everything in and about the bin Laden video is true and can be authenticated to the satisfaction of an impartial and objective international court of justice. Even so, the bin Laden video provided no evidence that implicated the Taliban Government of Afghanistan in the 11 September 2001 attacks upon the United States. The video provides no justification for the United States to wage war against Afghanistan, a UN Member State, in gross violation of the United Nations Charter. The fact that Afghanistan’s dysfunctional former President Rabbani was left to occupy the Afghan Seat at the United Nations makes no legal difference here. The United Nations Charter protected the State of Afghanistan from aggression by the United States. Indeed, the Clinton administration had already negotiated with the Taliban government over letting it have the UN Seat as well as extending it bilateral de jure recognition in return, in part, for the construction of the UNOCAL pipeline across Afghanistan⁰⁵ — a negotiation from which — ominously, in light of the onslaught to come — the Taliban demurred.

Framing a Response to September 11th

Terrorism and the Law

So let us now turn to the law. Immediately after the 11 September 2001 attacks President Bush’s first public statement characterized these terrible attacks as an act of terrorism. Under United States domestic law there is a definition of terrorism, which clearly qualifies them as such. To be sure, under international law and practice there is no generally accepted definition of terrorism, for reasons that are too complicated to explain in detail here but basically relate to that hackneyed aphorism that one person’s terrorist is another person’s freedom fighter.⁰⁶ Yet certainly under United States domestic law this qualified as an act or acts of terrorism.

What happened? It appears that President Bush consulted with Secretary Powell and all of a sudden they changed the rhetoric and characterization of these terrible attacks. They now called them an act of war — though clearly this was not an act of war, which international law and practice define as a military attack by one nation state upon another nation state.

There are enormous differences and consequences, however, in how you treat an act of terrorism compared to how you treat an act of war. This nation and others have dealt with acts of terrorism before. Normally acts of terrorism are dealt with as a matter of international and domestic law enforcement – which is, in my opinion, precisely how these terrible attacks should have been dealt with — not as an act of war.

Indeed there is a treaty directly on point to which both the United States and Afghanistan are party: the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, the so-called Montreal Sabotage Convention. Article 1(I)(b) thereof criminalizes the destruction of civilian aircraft while in service. It has an entire legal regime specifically designed to deal with this type of situation and all issues related to it, including reference to the International Court of Justice to resolve any disputes that could not be settled by negotiations between the United States and Afghanistan or other contracting parties. The Bush Jr. administration simply ignored the Montreal Sabotage Convention completely, as well as the 12 or so multilateral conventions already on the books that deal with various components and aspects of what people generally call international terrorism, many of which could have been used and relied upon to handle this matter in a lawful, effective, and peaceful manner.

The U.S. Policy Preference: Not Terrorism – War

Instead, proving again the Bush Jr. administration’s unwillingness to utilize international conventions which might require the submission of American power to external restraints, and thereby constrain rather than facilitate the realization of overt or covert American objectives, the Bush Jr. administration rejected this entire multilateral approach and called these terrible attacks an act of war. They deliberately invoked the rhetoric of Pearl Harbor, December 7, 1941. It was a conscious decision to escalate the emotions and perceptions of the American people generated on September 11th, and thus dramatically escalate the stakes, both internationally and domestically.

The implication was that if this is an act of war, then you do not deal with it by means of international treaties and negotiations: You deal with an act of war by means of military force. You go to war. So a decision was made remarkably early in the process to ignore and abandon the entire framework of international treaties that had been established under the auspices of the United Nations Organization for the past 25 years in order to deal with acts of international terrorism and instead go to war against Afghanistan, a UN member state. In order to prevent the momentum towards war from being impeded, Bush Jr. issued an impossible ultimatum, refusing all negotiations with the Taliban government, as well as all the extensive due process protections that are required between sovereign states related to extraditions, etc. The Taliban government’s requests for proof and offers to surrender bin Laden to a third party, similar to those which ultimately brought the Libyan Lockerbie suspects to trial, were all peremptorily ignored. Why such haste?

The UN Security Council Disagrees: Terrorism, not War

An act of war has a technical legal meaning: basically, a military attack by one nation state against another nation state. While this is what happened on December 7, 1941, it is not what happened on September 11, 2001. Nonetheless, immediately after September 11th, the Bush Jr. administration went to the United Nations Security Council in order to get a resolution authorizing the use of military force against Afghanistan and Al Qaeda. They failed. Indeed, the Security Council resolution that was adopted, instead of calling this an armed attack by one state against another state, denominated these events terrorist attacks.⁰⁷ And again there is a magnitude of difference between an armed attack by one state against another state, which is an act of war, and a terrorist attack, which is not. Again, terrorists are dealt with as criminals. Terrorists are not treated like nation states. Terrorists are dealt with by means of international and domestic law enforcement. Terrorists are not given the dignity of special status under international law and practice.

Bush Sr. v. Bush Jr.

What the Bush Jr. administration tried to do in the Security Council was to get a resolution similar to that obtained by the Bush Sr. administration in the run up to the Gulf War in the late Fall of 1990. Bush Sr. got a resolution from the Security Council authorizing UN member states to use all necessary means in order to expel Iraq from Kuwait.⁰⁸ The Bush Sr. administration originally wanted language in there expressly authorizing the use of military force in haec verba. The Chinese objected, so the Security Council employed the euphemism by all necessary means, though everyone knew what that meant. Besides, even if it may have been induced to do so, Iraq had actually invaded Kuwait, which was contrary to international law— a real act of war.⁰⁹

The first Bush Jr. Security Council resolution, on the other hand, provided no authority to use military force at all. That language simply was not in there. A close reading of the Security Council Resolution indicates that Bush Jr. tried but failed to get the authorization to use force that Bush Sr. got. Bush Jr. was defeated at the Security Council. This failure, of course, did not make national headlines; rather, it was subsumed in commentary which dwelt on a UN supposedly galvanized behind the Bush Jr. administration to combat terrorism.

No Declaration of War from Congress

Having failed to co-opt the UN Security Council for war as his father had, Bush Jr. then went to the United States Congress and exploited the raw emotions of this national tragedy to ram through a congressional authorization to use force. The exact nature of the Bush Jr. proposal to Congress at that time is unknown. However, reading between the lines of a public statement made by Senator Robert Byrd that was reported in the New York Times, it appears that Bush Jr. wanted a formal declaration of war along the lines of what President Roosevelt got from Congress after Pearl Harbor.¹⁰ Congress failed to give Bush Jr. that — and for a very good reason. If a formal declaration of war had been passed by Congress, it would have made Bush Jr. a constitutional dictator insofar as that, basically, Americans would now all be living under marshal law.¹¹ Congress might have just as well closed up and gone home for the rest of the duration of the Bush Jr. war against terrorism for all the difference they would have made. Bush Jr./Sr. would have known that full well. Indeed, prior to September 11th, President Bush Jr. had publicly opined about becoming a U.S. dictator.

The Infamy of Korematsu

As a direct result of that congressional declaration of war after Pearl Harbor, America made the infamous Korematsu mistake, whereby about 100,000 Japanese-American citizens and Japanese immigrants were rounded up and put in concentration camps on the basis of nothing more than an Executive Order that later on turned out to be based upon a gross misrepresentation of the factual allegation that Japanese in America constituted some type of unique security threat different from Germans in America or Italians in American, inter alia.¹² Obviously, in Korematsu race made all the difference. Again today, race is making all the difference in the Bush Jr. administration’s specific targeting of Arabs and Muslims from the Middle East and Southwest Asia.

Had Bush Jr. received a formal declaration of war from Congress, many groups of American citizens could have been on the exact same legal footing of the terrible Korematsu case, which has never been overturned by the United States Supreme Court. We could have witnessed the mass internment of American citizens of Arab, Muslim, Middle Eastern, Asian, and African American (many of whom are Muslims) descent. Instead, to date at least, the Bush Jr. administration has been restricting itself to detaining aliens who fit into these racial and religious categories. Of course such discrimination violates the International Convention on the Elimination of All Forms of Racial Discrimination, to which the United States is a contracting party — yet another international convention that the Bush Jr. administration has set at naught. And we still could be seeing the mass detention and internment of American citizens of whatever ethnicity who may become engaged in civil resistance against administration policies if Bush Jr., Attorney General John Ashcroft, White House Counsel Alberto Gonzales and their reactionary coterie of Federalist Society Lawyers can ultimately get their way. They have already instigated a nation-wide campaign of illegal profiling against the racial and religious categories of U.S. citizens and aliens mentioned above.

Instead, A Blank Check to Use Military Force

Instead of a formal declaration of war, the U.S. Congress gave Bush Jr. what is called a War Powers Resolution Authorization. The War Powers Resolution of 1973 was passed over President Nixon’s veto by a two-thirds majority in both Houses of Congress, and was expressly designed to prevent another Vietnam War.¹³ Although the resolution that Bush Jr. did get from Congress is not a formal declaration of war, it was stronger than the Tonkin Gulf Resolution,¹⁴ which served as the legal pretext for President Johnson’s massive escalation of the Vietnam War into outright genocide against the Vietnamese People. Only one courageous Member of Congress, Barbara Lee, an African American representative from Oakland, voted against it, as a matter of principle.

This War Powers Resolution authorization basically gives Bush Jr. a blank check to use military force against any individual, organization, or state that he alleges — by means of his own ipse dixit — was somehow involved in the attacks on September 11th, or else harbored those who were.¹⁵ To date, the number of potential targets has fluctuated from between 30 to 60 nation states, all of which are UN Members and thus protected from U.S. aggression by the UN Charter. In other words, Bush Jr. has received a blank check from the United States Congress to exert military force pretty much against any state he wants to despite the UN Charter. This was then followed by Congress granting Bush Jr. a $20 billion appropriation as a cash down payment on this blank check in order to exert military force against Afghanistan, for starters.

Bush Sr. v. Bush Jr. Redux

Let us compare and contrast this congressional resolution with the War Powers Resolution obtained by Bush Sr. in January of 1991. First, Bush Sr. got the Security Council resolution mentioned above, which he took to the U.S. Congress for authorization under the War Powers Resolution to use military force in order to carry it out. Congress then gave Bush Sr. a very precise authorization to use military force for the express purpose of carrying out the Security Council resolution, that is, only for the purpose of expelling Iraq from Kuwait.¹⁶ And indeed that is what Bush Sr. did. He expelled Iraq from Kuwait, stopping south of Basra, saying that was all the authority he had. This is not to approve what Bush Sr. did in that war, but simply to compare it with Bush Jr.

While Bush Sr. has been criticized on the grounds that he should have marched all the way to Baghdad, he truly had no authority from either the Security Council or from the United States Congress to do so. Compare that to Bush Jr.’s War Powers Resolution that basically gave Bush Jr. a blank check to use military force against anyone he wants to, and with no more than his asserting the need to do so. It is astounding to believe. With such latitude, even more extensive than that of the Tonkin Gulf Resolution, can another Vietnam War be far behind? Has one already commenced, with direct U.S. military re-intervention into the Philippines?

Ending States

At this writing, the Bush Jr. administration is publicly debating the wisdom of launching yet another massive military attack upon Iraq — only this time for the express purpose of deposing and replacing the Government of Iraq. Needless to say, such an unwarranted and aggressive attack on yet another sovereign state would violate the United Nations Charter, inter alia.

Worse yet, Deputy Secretary of Defense Paul Wolfowitz has publicly bragged about ending states¹⁷ — a rhetorical escalation from efforts to designate some as failed states, whose institutional and legal structures might thereby be illegally disregarded by the United States. Terminating states, if actually carried out, would violate the 1948 Genocide Convention, to which the United States is a contracting party. Such a reprehensible statement by Wolfowitz acting within the scope of his official duties could be taken to the World Court and filed in order to prove the existence of genocidal intent by the United States government. Indeed, there is a good chance that the first victim of this Wolfowitz threat may be the Republic of Iraq, which has been continuously and illegally bombed by the United States and the United Kingdom since the end of the Gulf War eleven years ago under the pretext of enforcing unauthorized no-fly zones. In this regard, Bush Jr.’s aggressive threat to Iraq, Iran and North Korea uttered during the course of his State of the Union Address to Congress on 29 January 2002 does not augur well. It appears from his language that the Bush Jr. administration is deliberately preparing the ground for a bogus claim to anticipatory self-defense in order to justify their pre-planned aggression against Iraq.

Honest Nuclear War-Mongering

Since the events of September 11th, the American people may have been treated to more truth from their government than ever before. In the post-Vietnam era, when the notorious Phoenix program of assassinations finally came to light, public indignation was sufficient to empower investigation by the Church Committee, and a subsequent ban on foreign assassinations. Over the past decade and increasingly under the Bush Jr. administration, however, open talk of intended foreign assassinations, efforts to overthrow the leaders of other sovereign states, or invasions of an unspecified array of nations can reach the daily papers through on-record remarks by elected officials. Secretary of Defense Donald Rumsfeld can call for the apprehension of suspects dead or alive or even preferably dead – which would happily avoid all the legal difficulties of proving bin Laden guilty in an evidentiary manner, or indeed the possibility of being confronted by a range of legal improprieties or malfeasances committed on the American side, especially by the CIA.¹⁸ Even the International Herald Tribune, in its effort to convince European readerships of the longstanding struggle of the U.S. to deal with Al Qaeda, revealed how the comparatively temperate Clinton had signed three highly classified Memorandums of Notification authorizing killing instead of capturing Mr. bin Laden, then added several of Al Qaeda’s senior lieutenants to the list, and finally approved the shooting down of private civilian aircraft on which they flew.¹⁹

It should come as no surprise therefore, in this onslaught of candid revelation of Machiavellian Realpolitik, that the historically covert intent of America’s nuclear deterrence policy should come to light through almost off- the-cuff remarks such as those by the omnipresent Deputy Secretary of Defense Wolfowitz appearing in the 9 January 2002 edition of the New York Times:

"We’re looking at a transformation of our deterrence posture from an almost exclusive emphasis on offensive nuclear forces [italics added] to a force that includes defenses as well as offenses, that includes conventional strike capabilities as well as nuclear strike capabilities, and includes a much reduced level of nuclear strike capability," the deputy secretary of defense, Paul D. Wolfowitz, said.

Well at least he was honest about it.

Wolfowitz admitted that the current U.S. practice of so-called nuclear deterrence is in fact really based upon an almost exclusive emphasis on offensive nuclear forces. To reiterate, since this deserves emphasis: The U.S. Deputy Secretary of Defense has publicly admitted and conceded that almost all U.S. nuclear forces are really offensive and not really defenses. Once again, that Statement could be taken to the International Court of Justice and filed against the United States government