Big Brother is Watching You

“Big Brother is Watching You”. Beyond Orwell’s Worst Nightmare

By Marjorie Cohn

“Big Brother is Watching You,” George Orwell wrote in his disturbing book 1984. But, as Mikko Hypponen points out, Orwell “was an optimist.” Orwell never could have imagined that the National Security Agency (NSA) would amass metadata on billions of our phone calls and 200 million of our text messages every day. Orwell could not have foreseen that our government would read the content of our emails, file transfers, and live chats from the social media we use.

In his recent speech on NSA reforms, President Obama cited as precedent Paul Revere and the Sons of Liberty, who patrolled the streets at night, “reporting back any signs that the British were preparing raids against America’s early Patriots.” This was a weak effort to find historical support for the NSA spying program.  After all, Paul Revere and his associates were patrolling the streets, not sorting through people’s private communications.

To get a more accurate historical perspective, Obama should have considered how our founding fathers reacted to searches conducted by the British before the revolution.  The British used “general warrants,” which authorized blanket searches without any individualized suspicion or specificity of what the colonial authorities were seeking.

At the American Continental Congress in 1774, in a petition to King George III, Congress protested against the colonial officers’ unlimited power of search and seizure. The petition charged that power had been used “to break open and enter houses, without the authority of any civil magistrate founded on legal information.”

When the founders later put the Fourth Amendment’s prohibition on unreasonable searches and seizures into the Bill of Rights, they were attempting to ensure that our country would not become a police state.

Those who maintain that government surveillance is no threat to our liberty should consider the abuse that occurred nearly 200 years later, when FBI Director J. Edgar Hoover conducted the dreaded COINTELPRO (counter-intelligence program).  It was designed to “disrupt, misdirect, discredit and otherwise neutralize” political and activist groups. During the McCarthy witch hunts of the 1950s, in an effort to eradicate the perceived threat of communism, our government engaged in widespread illegal surveillance to threaten and silence anyone with unorthodox political views. Thousands of people were jailed, blacklisted, and fired as the FBI engaged in “red-baiting.”

In the 1960’s, the FBI targeted Dr. Martin Luther King, Jr. in a program called “Racial Matters.” King’s campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed that King’s organization was being infiltrated by communists. But the FBI was really worried that King’s civil rights campaign “represented a clear threat to the established order of the U.S.” The FBI went after King with a vengeance, wiretapping his phones, and securing personal information which it used to try to discredit him, hoping to drive him to divorce and suicide.

NSA Telephony Metadata

The Surveillance State. NSA Telephony Metadata Collection: Fourth Amendment Violation

By Marjorie Cohn

Edward Snowden, who worked for the National Security Agency (NSA), revealed a secret order of the Foreign Intelligence Surveillance Court (FISC), that requires Verizon to produce on an “ongoing daily basis … all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

The government has admitted it collects metadata for all of our telephone communications, but says the data collected does not include the content of the calls.

In response to lawsuits challenging the constitutionality of the program, two federal judges issued dueling opinions about whether it violates the Fourth Amendment’s prohibition on unreasonable searches and seizures.

 Judge Richard J. Leon, of the US District Court for the District of Columbia, held that the metadata program probably constitutes an unconstitutional search and seizure. Judge William H. Pauley III, of the US District Court for the Southern District of New York, determined that it does not violate the Fourth Amendment.

Leon’s opinion

Leon wrote, “Because the Government can use daily metadata collection to engage in ‘repetitive surreptitious surveillance of a citizen’s private goings on,’ the ‘program implicates the Fourth Amendment each time a government official monitors it.’” The issue is “whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. If they do—and a Fourth Amendment search has thus occurred—then the next step of the analysis will be to determine whether such a search is ‘reasonable.’” The first determination is whether a Fourth Amendment “search” has occurred. If so, the second question is whether that search was “reasonable.”

The judicial analyses of both Leon and Pauley turn on their differing interpretations of the 1979 U.S. Supreme Court decision, Smith v. Maryland. In Smith, a robbery victim reported she had received threatening and obscene phone calls from someone who claimed to be the robber. Without obtaining a warrant, the police installed a pen register, which revealed a telephone in the defendant’s home had been used to call the victim. The Supreme Court held that a person has no reasonable expectation of privacy in the numbers dialed from his telephone because he voluntarily transmits them to his phone company.

Leon distinguished Smith from the NSA program, saying that whether a pen register constitutes a “search” is “a far cry from the issue in [the NSA] case.” Leon wrote, “When do present-day circumstances—the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

 Then Leon cited the 2012 Supreme Court case of United States v. Jones, in which five justices found that law enforcement’s use of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy. “Significantly,” Leon wrote, “the justices did so without questioning the validity of the Court’s 1983 decision in United States v. Knotts, that the use of a tracking beeper does not constitute a search because ‘[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’” Leon contrasted the short-range, short-term tracking device used in Knotts with the constant month-long surveillance achieved with the GPS device attached to Jones’s car.

The Drums of War are Beating: Killing Civilians to Protect Civilians in Syria

By Marjorie Cohn and Jeanne Mirer

The drums of war are beating again. The Obama administration will reportedly launch a military strike to punish Syria’s Assad government for its alleged use of chemical weapons. A military attack would invariably kill civilians for the ostensible purpose of showing the Syrian government that killing civilians is wrong. “What we are talking about here is a potential response . . . to this specific violation of international norms,” declared White House press secretary Jay Carney. But a military intervention by the United States in Syria to punish the government would violate international law.

For the United States to threaten to and/or launch a military strike as a reprisal is a blatant violation of the United Nations Charter. The Charter requires countries to settle their international disputes peacefully.

Article 2(4) makes it illegal for any country to either use force or threaten to use force against another country. Article 2(7) prohibits intervention in an internal or domestic dispute in another country. The only time military force is lawful under the Charter is when the Security Council approves it, or under Article 51, which allows a country to defend itself if attacked. “The use of chemical weapons within Syria is not an armed attack on the United States,” according to Notre Dame law professor Mary Ellen O’Connell.

The United States and the international community have failed to take constructive steps to promote peace-making efforts, which could have brought the crisis in Syria to an end. The big powers instead have waged a proxy war to give their “side” a stronger hand in future negotiations, evaluating the situation only in terms of geopolitical concerns. The result has been to once again demonstrate that military solutions to political and economic problems are no solution at all. In the meantime, the fans of enmity between religious factions have been inflamed to such a degree that the demonization of each by the other has created fertile ground for slaughter and excuses for not negotiating with anyone with “blood on their hands.”

Despite U.S. claims of “little doubt that Assad used these weapons,” there is significant doubt among the international community about which side employed chemical weapons. Many view the so-called rebels as trying to create a situation to provoke U.S. intervention against Assad. Indeed, in May, Carla del Ponte, former international prosecutor and current UN commissioner on Syria, concluded that opposition forces used sarin gas against civilians.

The use of any type of chemical weapon by any party would constitute a war crime. Chemical weapons that kill and maim people are illegal and their use violates the laws of war. The illegality of chemical and poisoned weapons was first established by the Hague regulations of 1899 and Hague Convention of 1907. It was reiterated in the Geneva Convention of 1925 and the Chemical Weapons Convention. The Rome Statute for the International Criminal Court specifically states that employing “poison or poisoned weapons” and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” are war crimes, under Article 8. The prohibition on the use of these weapons is an international norm regardless of whether any convention has been ratified. As these weapons do not distinguish between military combatants and civilians, they violate the principle of distinction and the ban on weapons which cause unnecessary suffering and death contained in the Hague Convention. Under the Nuremberg Principles, violations of the laws of war are war crimes.

The self-righteousness of the United States about the alleged use of chemical weapons by Assad is hypocritical. The United States used napalm and employed massive amounts of chemical weapons in the form of Agent Orange in Vietnam, which continues to affect countless people over many generations.

Recently declassified CIA documents reveal U.S. complicity in Saddam Hussein’s use of chemical weapons during the Iran-Iraq war, according to Foreign Policy: “In contrast to today’s wrenching debate over whether the United States should intervene to stop alleged chemical weapons attacks by the Syrian government, the United States applied a cold calculus three decades ago to Hussein’s widespread use of chemical weapons against his enemies and his own people. The Reagan administration decided that it was better to let the attacks continue if they might turn the tide of the war. And even if they were discovered, the CIA wagered that international outrage and condemnation would be muted.”

In Iraq and Afghanistan, the United States used cluster bombs, depleted uranium, and white phosphorous gas. Cluster bomb cannisters contain tiny bomblets, which can spread over a vast area. Unexploded cluster bombs are frequently picked up by children and explode, resulting in serious injury or death. Depleted uranium (DU) weapons spread high levels of radiation over vast areas of land. In Iraq, there has been a sharp increase in Leukemia and birth defects, probably due to DU. White phosphorous gas melts the skin and burns to the bone.

The Geneva Convention Relative to the Protection of Civilian Persons in time of War (Geneva IV) classifies “willfully causing great suffering or serious injury to body or health” as a grave breach, which constitutes a war crime.

The use of chemical weapons, regardless of the purpose, is atrocious, no matter the feigned justification. A government’s use of such weapons against its own people is particularly reprehensible. Secretary of State John Kerry said that the purported attack by Assad’s forces “defies any code of morality” and should “shock the conscience of the world.” He went on to say that “there must be accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people.”

Yet the U.S. militarily occupied over 75% of the Puerto Rican island of Vieques for 60 years, during which time the Navy routinely practiced with, and used, Agent Orange, depleted uranium, napalm and other toxic chemicals and metals such as TNT and mercury. This occurred within a couple of miles of a civilian population that included thousands of U.S. citizens. The people of Vieques have lived under the colonial rule of the United States now for 115 years and suffer from terminal health conditions such as elevated rates of cancer, hypertension, respiratory and skin illnesses and kidney failure. While Secretary Kerry calls for accountability by the Assad government, the U.S. Navy has yet to admit, much less seek atonement, for decades of bombing and biochemical warfare on Vieques.

The U.S. government’s moral outrage at the use of these weapons falls flat as it refuses to take responsibility for its own violations.

President Barack Obama admitted, “If the U.S. goes in and attacks another country without a UN mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it . . .” The Obama administration is studying the 1999 “NATO air war in Kosovo as a possible blueprint for acting without a mandate from the United Nations,” the New York Times reported. But NATO’s Kosovo bombing also violated the UN Charter as the Security Council never approved it, and it was not carried out in self-defense. The UN Charter does not permit the use of military force for “humanitarian interventions.” Humanitarian concerns do not constitute self-defense. In fact, humanitarian concerns should spur the international community to seek peace and end the suffering, not increase military attacks, which could endanger peace in the entire region.

Moreover, as Phyllis Bennis of the Institute for Policy Studies and David Wildman of Human Rights & Racial Justice for the Global Ministries of the United Methodist Church wrote, “Does anyone really believe that a military strike on an alleged chemical weapons factory would help the Syrian people, would save any lives, would help bring an end to this horrific civil war”?

Military strikes will likely result in the escalation of Syria’s civil war. “Let’s be clear,” Bennis and Wildman note. “Any U.S. military attack, cruise missiles or anything else, will not be to protect civilians – it will mean taking sides once again in a bloody, complicated civil war.” Anthony Cordesman, military analyst from the Center for Strategic and International Studies, asks, “Can you do damage with cruise missiles? Yes. Can you stop them from having chemical weapons capability? I would think the answer would be no.”

The United States and its allies must refrain from military intervention in Syria and take affirmative steps to promote a durable ceasefire and a political solution consistent with international law. If the U.S. government were truly interested in fomenting peace and promoting accountability, it should apologize to and compensate the victims of its own use of chemical weapons around the world.

Iraq: A War of Aggression

Iraq: A War of Aggression. No WMDs, No Connection to Al Qaeda

By Marjorie Cohn

According to sources inside the administration, George W. Bush was planning to invade Iraq and remove its government well before the terrorist attacks of September 11, 2001. Such an invasion violates the UN Charter, which the United States signed in 1945 after the bloodiest conflict in history. The Charter permits countries to use military force against another country only in self-defense or with Security Council permission. But the evidence indicates that the U.S.-led invasion satisfied neither condition and is therefore a war of aggression, which constitutes a Crime Against Peace - exactly the kind of war the Charter was meant to prevent.

Although Bush marketed the war in Iraq as necessary to protect us from Saddam Hussein’s weapons of mass destruction (WMD), his decisions had less to do with self-defense than with dominating the oil-rich Middle East. Some evidence for this conclusion can be found in a September 2000 report prepared by the neoconservative Project for a New American Century (PNAC). The report, commissioned by Dick Cheney, outlines a plan “to maintain American military preeminence that is consistent with the requirements of a strategy of American global leadership.” It notes that while “the unresolved conflict with Iraq provides the immediate justification, the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein.” Another document produced for Vice President Cheney’s secret Energy Task Force included a map of Iraqi oilfields, pipelines, refineries and terminals as well as charts detailing Iraqi oil and gas projects and “Foreign Suitors for Iraqi Oilfield Contracts.” That document was dated March 2001, six months before 9/11 and two years before Bush invaded Iraq.

After 9/11, the Bush administration attacked Afghanistan and removed the Taliban from power. But the primary target all along was Iraq. To sell the war to the American people, the administration made two claims and repeated them like a mantra. First, Iraq had weapons of mass destruction. Second, it had ties with al-Qaeda and was thus complicit in the 9/11 attacks. Although the administration argued that both reasons justified the use of force against Iraq, it was advised repeatedly that neither claim was valid.

No Weapons of Mass Destruction

An August 2006 report prepared at the direction of Rep. John Conyers, Jr. found that “members of the Bush Administration misstated, overstated, and manipulated intelligence with regards to linkages between Iraq and Al Qaeda; the acquisition of nuclear weapons by Iraq; the acquisition of aluminum tubes to be used as uranium centrifuges; and the acquisition of uranium from Niger.” The report also noted that “[b]eyond making false and misleading statements about Iraq’s attempt to acquire nuclear weapons, the record shows the Bush Administration must have known these statements conflicted with known international and domestic intelligence at the time.” Finding that the administration had also misstated or overstated intelligence information regarding chemical and biological weapons, the report concluded that “these misstatements were in contradiction of known countervailing intelligence information, and were the result of political pressure and manipulation.” In short, the Bush gang misrepresented the WMD threat to justify its planned invasion of Iraq.

No Connection Between Iraq and al Qaeda

On September 21, 2001, Bush was told in the President’s Daily Brief that the intelligence community had no evidence connecting Saddam Hussein’s regime to the 9/11 attacks. Furthermore, there was scant credible evidence that Iraq had any significant collaborative ties with al Qaeda. This was no surprise. Al Qaeda is a consortium of intensely religious Islamic fundamentalists, whereas Hussein ran a secular government that repressed religious activity in Iraq.

Undeterred, Bush and his people continued to tout the connection. Although the Defense Intelligence Agency (DIA) determined in February 2002 that “Iraq is unlikely to have provided bin Laden any useful [chemical or biological weapons] knowledge or assistance,” Bush proclaimed one year later, “Iraq has also provided al-Qaeda with chemical and biological weapons training.” And although the CIA concluded in a classified January 2003 report that Hussein “viewed Islamic extremists operating inside Iraq as a threat,” Cheney claimed the next day that the Iraqi government “aids and protects terrorists, including members of al-Qaeda.”

To support their claims that Iraq was training al-Qaeda members, Bush, Cheney, and Colin Powell repeatedly cited information provided by Ibn al-Shaykh al-Libi, an al-Qaeda prisoner captured shortly after 9/11. An ex-FBI official told Newsweek that the CIA “duct-taped [al-Libi's] mouth, cinched him up and sent him to Cairo” for some “more-fearsome Egyptian interrogations” in violation of U.S. law prohibiting extraordinary rendition. Al-Libi’s account proved worthless. The February 2002 DIA memo reveals al-Libi provided his American interrogators with false material suggesting Iraq had trained al-Qaeda to use weapons of mass destruction. Even though U.S. intelligence thought the information was untrue as early as 2002 because it was obtained by torture, al-Libi’s information provided the centerpiece of Colin Powell’s now thoroughly discredited February 2003 claim before the United Nations that Iraq had developed WMD programs.

The March to War

Unable to find any WMD or connection between Iraq and the 9/11 attacks, Bush never wavered in his march toward war. "From the very beginning," former Treasury Secretary Paul O'Neill said on 60 Minutes, "there was a conviction that Saddam Hussein was a bad person and that he needed to go. It was all about finding a way to do it. That was the tone of it. The president saying, 'Go find me a way to do this.'"

On September 15, 2001, in a meeting at Camp David, Defense Secretary Donald Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of "good targets in Afghanistan." Former Deputy Defense Secretary Paul Wolfowitz argued that war against Iraq might be "easier than against Afghanistan." The 9-11 Commission Report noted that as early as September 20, 2001, Undersecretary of Defense for Policy Douglas Feith suggested attacking Iraq in response to the 9/11 attacks. In late November 2001, Bush instructed Rumsfeld to develop an Iraq war plan. "What have you got in terms of plans for Iraq?," Bush asked. "What is the status of the war plan? I want you to get on it. I want you to keep it secret."

In his January 2002 State of the Union Address, Bush declared that countries like Iraq, Iran, and North Korea "constitute an axis of evil . . . These regimes pose a grave and growing danger . . . I will not wait on events, while dangers gather." As early as February 2002, the Bush administration took concrete steps to deploy military troops and assets into Iraq without advising Congress or seeking its approval. By late March, Dick Cheney told his fellow Republicans that a decision had been made to invade Iraq. The same month, Bush poked his head into Condoleezza Rice’s office and said, “Fuck Saddam. We’re taking him out.”

In July 2002, a highly classified document titled CentCom Courses of Action was leaked to the New York Times. Prepared two months earlier, it contained what the Pentagon labeled a "war plan" for invading Iraq. The document, which indicated an advanced stage of planning, called for tens of thousands of marines and soldiers to attack Iraq from the air, land, and sea to topple Saddam Hussein.

In August 2002, Cheney cautioned that Saddam Hussein could try to dominate “the entire Middle East and subject the United States to nuclear blackmail.” He added, “There is no doubt that Saddam Hussein now has weapons of mass destruction.” The same month, the Bush administration quietly established the White House Iraq Group (WHIG) to lead a propaganda campaign to bolster public support for war with Iraq.

A week before WHIG began its work in earnest, the Sunday Times of London broke the story of the “Downing Street Memo,” which contained the secret minutes of a July 2002 meeting with Tony Blair and Sir Richard Dearlove, chief of British intelligence. Dearlove reported that Bush had already decided to go to war and was making sure “the intelligence and facts” about Iraq and WMD “were being fixed around the policy” of war on Iraq.

Shortly after WHIG convened, White House officials told the New York Times there was a meticulously planned strategy to sell a war against Iraq to the American people. But the White House decided to wait until after Labor Day to kick off the plan. The reason, as explained by White House chief of staff Andrew Card, seemed straight from the pages of George Orwell’s 1984: “From a marketing point of view,” Card said, “you don’t introduce new products in August.” The new product was introduced the following month by National Security Adviser Condoleezza Rice, who warned, “We don’t want the smoking gun to be a mushroom cloud.” The same week, on the anniversary of 9/11, Bush declared the United States would “not allow any terrorist or tyrant to threaten civilization with weapons of mass murder.” The next day, in an address to the United Nations, Bush reiterated that Iraq was a “grave and gathering danger.”

Three weeks before the midterm elections, Congress gave Bush the “Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq.” The White House wanted to pass the resolution while many in Congress were facing reelection; those who opposed Bush’s war on Iraq would be painted as soft on terror. The resolution said Iraq posed a “continuing threat to the national security of the United States” by “continuing to possess and develop a significant chemical and biological weapons capability” and “actively seeking a nuclear weapons capability.” It authorized the President to use the Armed Forces to “defend the national security of the United States against the continuing threat posed by Iraq” and to “enforce all relevant United Nations Security Council Resolutions regarding Iraq.” Iraq didn’t pose a threat to the United States, and only the Security Council has the power to enforce its resolutions. But Congress capitulated to the Bush gang’s hyperbole and intense pressure. Some legislators later said they were duped by the Bush administration into voting for this resolution.

In his 2003 State of the Union address, Bush famously claimed, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” It was pure fiction. "The White House kept saying that no decision had been made about Iraq, but only the blind or the deaf could fail to see that a decision had long ago been made," Frank Rich wrote in The Greatest Story Ever Sold.

The Real Motive

Why was Bush so determined to invade Iraq? Wolfowitz admitted that the WMD rationale was a "bureaucratic" excuse for war that everyone could agree on. When no WMD turned up, Wolfowitz revealed a new raison d'etre: the invasion of Iraq was a way to redraw the Middle East to reduce the terrorist threat to the United States.

In November 2002, Rumsfeld sought to decouple oil access from regime change in Iraq when he claimed that the U.S. beef with Iraq had "nothing to do with oil, literally nothing to do with oil." A year later, Bush announced in his State of the Union Address, "We have no desire to dominate, no ambitions of empire." But the denials were unconvincing, and a great deal of evidence suggests that oil and domination had everything to do with the decision to invade.

In February 2001, a month after Bush’s inauguration, White House officials discussed a memo called “Plan for Post-Saddam Iraq,” which described troop requirements, establishing war crimes tribunals, and dividing up Iraq’s oil wealth.” Meanwhile, Treasury Secretary Paul O’Neill was astonished to discover that actual plans “were already being discussed to take over Iraq and occupy it – complete with disposition of oil fields, peacekeeping forces, and war crimes tribunals – carrying forward an unspoken doctrine of preemptive war.” According to O’Neill, a preemptive attack on Iraq and the prospect of dividing the world’s second largest oil reserve among the world’s contractors “made for an irresistible combination.”

The Self-Defense Argument

Returning to the legality of the Iraq invasion and occupation, we find that the UN Charter requires all members to settle their international disputes by peaceful means. No nation can use military force against the territorial integrity or political independence of any other country. As noted earlier, the only two exceptions to this prohibition are when a nation acts in self-defense or when the Security Council authorizes the use of force. A country may use military force in individual or collective self-defense “if an armed attack occurs” against a U.N. member country or in response to an imminent attack. It is well established that the need for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

Iraq had not attacked any other nation for 11 years. It lacked both the capacity and the will to lodge an imminent attack on any country. Its military capability had been severely weakened by the Gulf War, years of punishing sanctions and intrusive inspections, and almost daily bombing raids by the United States and Britain over the “no-fly zones.”

Bush made little pretense that Iraq constituted an imminent threat. Rather, he invoked his own doctrine of “preemptive war” to justify his attack. He unveiled that doctrine in a speech at West Point in June 2002. “We must take the battle to the enemy,” Bush said, “disrupt his plans, and confront the worst threats before they emerge.” The international community was unmoved. Quite simply, the U.S. invasion of Iraq wasn’t self-defense because it didn’t respond to an armed or imminent attack.

The Security Council Never Authorized War

The UN Charter declares that no member has the right to enforce any Security Council resolution with military action unless the Council decides there has been a material breach of its resolution and all non-military means of enforcement have been exhausted. Then the Council may authorize the use of military force. The use of armed force for preemptive or retaliatory purposes is prohibited by the Charter.

Bush was never interested in achieving a diplomatic solution in Iraq. Bush tried mightily to arrange a Security Council resolution that would authorize his war, but the Council refused. Bush then cobbled together prior resolutions to rationalize his invasion. None of them, however, individually or collectively, constituted authorization for his use of force against Iraq.

Faced with Iraq’s increasing cooperation with weapons inspectors in the weeks leading up to the invasion, Bush's rationale for disarming Iraq morphed into "regime change" to bring democracy to the Iraqi people. But forcible regime change violates the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States and therefore part of our domestic law under the Supremacy Clause of the Constitution.

Shock and Awe—and the Consequences

Despite the absence of Security Council authorization, a quarter million troops from the United States and the United Kingdom invaded Iraq in March 2003. Delivering on their promise to “shock and awe,” the “coalition forces” dropped several 2,000-pound bombs on Baghdad in rapid succession, in what the New York Times dubbed “almost biblical power.”

Since then, the use of cluster bombs, depleted uranium, and white phosphorous gas by U.S. forces in Iraq has been documented. These are weapons of mass destruction. Cluster bomb cannisters contain tiny bomblets which can spread over a vast area. Unexploded cluster bombs are frequently picked up by children and explode, resulting in serious injury or death. Depleted uranium weapons spread high levels of radiation over vast areas of land. White phosphorous gas melts the skin and burns to the bone. The Geneva Convention Relative to the Protection of Civilian Persons in time of War (Geneva IV) classifies “willfully causing great suffering or serious injury to body or health” as a grave breach. The US War Crimes Act punishes grave breaches of Geneva as war crimes. The Bush administration is committing war crimes with its use of these weapons.

"Operation Iraqi Freedom" unleashed a tragedy of immense proportion. More than 3,000 American soldiers and tens of thousands of Iraqis have been killed. Close to 7,000 Iraqi civilians were killed in July and August 2006 alone. In October 2006, the British medical journal the Lancet published a study conducted by Iraqi physicians with oversight by epidemiologists at Johns Hopkins University's Bloomberg School of Public Health. The study estimated that 655,000 Iraqi civilians had died since Bush invaded Iraq in March 2003.

Loss of life isn’t the only shocking and awful consequence of “Operation Iraqi Freedom.” The United Nations concluded in its July-August 2006 report that bodies found “often bear signs of severe torture, including acid-induced injuries and burns caused by chemical substances, missing skin, broken bones (back, hands and legs), missing eyes, missing teeth and wounds caused by power drills or nails."

Furthermore, “Operation Iraqi Freedom” has led to anti-American sentiment elsewhere. According to a declassified portion of the April 2006 National Intelligence Estimate, which represents the consensus of the 16 U.S. intelligence agencies, "The Iraq conflict has become the 'cause celebre' for jihadists, breeding a deep resentment of U.S. involvement in the Muslim world and cultivating supporters for the global jihadist movement." The report concludes, "The Iraq jihad is shaping a new generation of terrorist leaders and operatives."

The Greatest Menace of Our Times

The Nuremberg Charter defines “Crimes Against Peace” as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” Bush’s war on Iraq is a war of aggression, and thus constitutes a Crime Against Peace.

U.S. Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. In his opening statement in 1945, Justice Jackson wrote, “No political, military, economic, or other considerations shall serve as an excuse or justification” for a war of aggression. “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would be unwilling to have invoked against us.”

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war "essentially an evil thing . . . To initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Justice Jackson labeled the crime of aggression "the greatest menace of our times." Over 50 years later, his words still ring true in Iraq.