Affirmative Measures to Halt U.S. War Crimes

[This essay is part of the ZNet Classics series. Three times a week we will re-post an article that we think is of timeless importance. This one was first published November, 2005.]

Morality, international law, the U.S. Constitution, and common sense provide many compelling reasons to take affirmative measures to bring the Bush administration’s war crimes to a halt. But what might such measures be, and who is in a position to take them? 

The Bush administration could not last a week if government officials and the press refused to keep its secrets; judges declared its authority illegitimate; soldiers refused to fight its wars; young people refused to enlist in its army; and other countries refused to buy its treasury bonds. 

Like a guerrilla army emerging in response to a military occupation, a large and diverse movement—almost unrecognized even to itself—is arising to halt the Bush regime’s war crimes. It is manifested in lawyers who bring war crimes charges against officials in the Bush administration; judges who reject unconstitutional claims to presidential authority; military and government whistle-blowers who reveal to the public what is actually going on in Iraq and in Washington; doctors who expose medical complicity in prisoner abuse; soldiers who refuse to fight in Iraq; people who support their refusal; and myriad citizens who have protested U.S. military actions in Iraq and beyond. 

The halting of U.S. war crimes involves three mutually reinforcing processes. First, encouraging people in the U.S. to repudiate the Bush administration’s war crimes as contrary to their most cherished values, beliefs, and interests. Second, reinvigorating the currently paralyzed institutions designed to impose law and democracy on government. Third, impeding the means for committing war crimes. These processes provide a broad strategy and concrete affirmative measures that all can take to bring government in line with national and international law. 

The Bush administration engages in preventive war and maintains that it has the right to do so without UN approval or immediate threat. The U.S. public, in contrast, has a strong and continuing belief that all nations, including the United States, are subject to international law. A 2004 poll by the University of Maryland, for example, found that “majorities of the public and leaders do not support states taking unilateral action to prevent other states from acquiring weapons of mass destruction, but do support this action if it has UN Security Council approval. They also both reject preventive unilateral war, but endorse a country’s right to go to war on its own if there is strong evidence of an imminent threat.” They apply this view to specific U.S. policies. For example, “Strong majorities of the public and leaders also believe the United States would need UN Security Council approval before using military force to destroy North Korea’s nuclear capability.” 

The Bush administration maintains that the president as commander in chief has the authority to attack other countries without congressional approval and torture prisoners without constraint by courts. The people do not accept this abrogation of the Constitution and the rule of law. Nor do they accept the destruction of basic civil liberties in the name of the war against terror; 372 local governments have passed resolutions demanding that Congress bring the PATRIOT Act in line with the constitution. 

The Bush administration’s belligerence and unilateral- ism has isolated the United States from the people and countries of the world. The American people believe that such isolation is dangerous. In one poll, more than three-quarters of Americans said that the United States should do its share to solve international problems together with other countries. About 70 percent agreed that the primary lesson of September 11 is that the United States needs to cooperate more with other countries to fight terrorism, as opposed to acting more on its own. In contrast to the Bush administration, most citizens support participation in the International Criminal Court, strengthening the United Nations, contributing U.S. troops to UN peacekeeping missions, and signing the Land Mines Treaty. It is doubtful that many Americans would think it wise for a country with 5 percent of the world’s people to try to dominate the other 95 percent without their consent. 

The forces opposed to U.S. war crimes can use these fundamental disagreements to isolate the Bush administration from public support. By making a public issue of specific violations of U.S. and international law, they can educate the public on what the law is, what the violations are, and why the laws that are being violated embody the interests and beliefs of the people. 

Reinvigorating Law And Democracy 

The next corrective process is to end the paralysis of the institutions responsible for maintaining accountability of government leaders. That means first of all the legal and political systems. Where they fail, responsibility also falls to institutions of civil society like the media, the academy, the labor movement, and religious communities. 

Legal System: A properly functioning legal system investigates, apprehends, and sanctions those who violate the law. Many acts by the Bush regime on their face violate not only international, but also U.S. law. But the Bush regime controls most of the means of investigation and prosecution and uses its administrative powers to cover up its crimes. Many federal judges have been appointed by President Bush or his Republican predecessors. 

Nonetheless, there is a struggle going on within the legal system against the Bush administration’s lawlessness and for an assertion of constitutional limits on presidential authority. That struggle involves lawyers, courts, and defendants charged with “crimes” of civil disobedience. 

In struggles against autocratic regimes abroad, courts have often played a critical role in delegitimating the illegal extension of executive powers. Courts are now playing a role in limiting excess claims of executive power in the United States. The Supreme Court’s ruling that the Guantánamo prisoners are subject to the jurisdiction of U.S. courts placed the first significant restrictions on the Bush administration’s claims that the president as commander in chief can do whatever he chooses without any accountability to anyone. In response to suits brought by the ACLU and others, courts have ordered the release of thousands of pages of documents that have revealed for the first time the extent of torture and prisoner abuse and the crucial role of officials at the highest level. 

Defending acts of civil disobedience provides a further opportunity to get the issue of war crimes into U.S. courts. Such actions need not be just individual protests, but rather can be the focus of massive and diverse resistance and educational activities. Lawyers not only can provide legal assistance, but also can organize to support and publicize the resisters’ cases. 

Actions oriented toward the legal system can weaken the Bush regime’s ability to commit war crimes in two ways. When successful in court, they can put limits on the regime’s freedom of action and force it to disclose the evidence it has tried to conceal. Whether successful or not, they provide a vehicle for dramatizing the evidence of war crimes and the argument that their perpetrators must be held accountable. 

If its power is threatened, the Bush administration may well respond by using its control of the legal system to punish those who would try to hold it accountable for war crimes. But such actions can often be countered by a kind of “political jujitsu” in which the acts of repression themselves become the symbols of the regime’s illegitimacy—as Nixon’s burglaries, wiretaps, and other “dirty tricks” against opponents became the source of his downfall. Such abuse of power can be utilized to show the public that the regime’s purpose is not to protect the U.S. population or bring democracy to the world, but rather to protect war criminals from accountability. 

Political System: The U.S. political system has been deeply complicit in the Bush administration’s war crimes. While many congressional Democrats voted against authorizing war on Iraq, many others and almost all Republicans supported it. Presidential candidate John Kerry called for more troops for the Iraq occupation and barely mentioned such scandals as Abu Ghraib and Guantánamo. Congressional hearings on Abu Ghraib and other obvious war crimes have been so desultory as to comprise part of the cover up. 

The confirmation hearings on Alberto Gonzales constituted the strongest attempt so far to begin holding the Bush administration accountable to Congress for its crimes. Democratic opposition far exceeded expectations because, as Senator Russ Feingold put it, “He simply refused to say without equivocation that the president is not above the law.” Thirty-five Democratic senators voted against Gonzales’s confirmation. 

The Gonzales hearings revealed the emergence of a new national coalition opposed to the Bush violations of international law and the Constitution. It included: major law and human rights organizations; religious leaders; and retired generals, admirals, and diplomats. This coalition is likely to be the spearhead of future efforts to hold the Bush administration accountable for war crimes in the political arena. Most have already called for further congressional hearings and an independent investigation of prisoner abuse by a special prosecutor or independent commission. 

A number of promising legislative initiatives are already under way. Congressperson Edward Markey successfully attached a House amendment to the 2005 Iraq emergency supplemental appropriation bill prohibiting the U.S. government from continuing the practice of extraordinary rendition. Congressperson Barbara Lee has introduced a resolution calling for Congress to disavow “the doctrine of preemption because it poses a threat to international law and to the national security interests of the United States.” Congressperson Lynn Woolsey, along with 27 of her colleagues, has introduced a resolution calling for the immediate withdrawal of U.S. troops from Iraq. 

Where political leaders become too isolated from the values and interests of those they represent, they become vulnerable. “The internal stability of a regime can be measured by the ratio between the number and strength of the social forces that it controls or conciliates, in a word, represents, and the number and strength of the social forces that it fails to represent and has against it.” Lyndon Johnson, after the greatest presidential election victory in history, withdrew from the campaign for reelection. The reason? He had led the United States into a catastrophic war that had been repudiated by the people. Richard Nixon triumphed over the peace candidate George McGovern. Within a few months he had resigned from office in disgrace. The reason? He engaged in multiple criminal activities that violated the basic norms and values of the people, especially undermining the law and the Constitution. If the Bush administration comes to be widely perceived as pursing an illegal and unpopular war by criminal means, all the bombs in the Pentagon’s arsenal will be inadequate to protect its power. 

Civil Society: Where legal and political institutions fail to control governmental crime, civil society organizations often provide the next line of defense for democracy and the rule of law. The media, the academy, the labor movement, and religious communities can be important arenas for action. 

From 9/11 through the invasion of Iraq, the U.S. media largely abandoned their responsibility to ask critical questions and investigate official lies and malfeasance. Since the Iraq occupation, however, the media have played a key, though still far from adequate, role in exposing U.S. war crimes. 

Universities have been a primary recruiting ground for the cadres of the Bush administration and for the arguments justifying their crimes. But scholars have also provided some of the challenges to those arguments. Law professors like Harold Koh, Dean of the Yale Law School, have demolished the legal views put forward by Alberto Gonzales and others. Archaeologists like MacGuire Gibson of the University of Chicago warned against and then decried the destruction of the treasures of early civilization in Iraq. Medical professionals have exposed the death and disease propagated by the U.S. occupation of Iraq. 

The AFL-CIO has refused to support the Iraq war the way it did the Vietnam War, but it has also failed to oppose it. However, a very active U.S. Labor Against the War organization has mobilized many unions and many rank-and-file trade unionists against the Iraq war. 

Many denominations and parishes actively opposed the U.S. attack on Iraq. After the attack their activity diminished. The beginning of 2005 saw the emergence of new forms of religious opposition, such as the founding of the group Clergy and Laity Concerned About Iraq. 

All of these spheres provide arenas for education about the Bush administration’s war crimes and for organizing resistance to them. 

Impeding War Crimes 

The third corrective process is resistance to war criminals’ illegitimate authority. The Bush administration’s capacity to commit war crimes depends on having soldiers, mercenaries, intelligence agents, government officials, and others who will obey orders. It depends on having an acquiescent population who will not impede their actions. 

As we have seen in the past year or so, resistance in the military and refusal to reenlist is growing. So is refusal to enlist—aided by counter-recruitment efforts. So is the revelation of war crimes and cover-ups by military and civilian whistle-blowers. These are all encouraged by growing public disaffection with the Iraq war and other Bush policies. 

While refusal to fight directly weakens the capacity of the Bush regime to engage in war crimes, it also has powerful secondary effects. Such refusals pose stark moral questions to other people and call them to examine their own responsibilities. 

Soldiers and their families have a special place in the mythology used to silence opposition to war. War supporters often portray questioning of government policy as a desecration of their service and sacrifice. But when the soldiers and their families begin to question the morality and legality of a war, this pillar of support is threatened. 

Refusal to fight also makes the top military brass and other policy makers worry that the military may become a “broken force” filled with demoralized troops, losing prestige, confronting negative public opinion, and held in contempt from foreign countries. 

If the Bush regime is unable to raise the troops it needs for its global ventures, it will be forced either to give up those ventures or to turn to conscription—an alternative whose political impact the Administration must shudder to even consider. 

Not everyone is in a position to refuse to fight. U.S. laws make it a crime to “aid, counsel, or abet” draft resistance, desertion, or refusal of military orders. Yet a growing number of people are taking a stand against a criminal war and its associated war crimes by publicly violating those laws. 

If broad public opposition, the reinvigoration of the institutions of democratic accountability, and the growth of military and civilian resistance are not sufficient to bring the Bush administration’s war crimes to a halt, they may lay the groundwork for the use of mass action for that purpose. During the late 1960s, opponents of the Vietnam War organized a recurrent event called the Moratorium. Once a month people around the country protested in whatever way they considered suitable—from shutting down schools and workplaces to holding seminars, religious services, rallies, and marches. By October 1969, an estimated two million Americans were participating. 

Democratization movements in other countries have often staged similar periodic mass protests—even if in a repressive environment where people could do no more than beating pots out of their windows. Ultimately there will have to be, in Gandhi’s phrase, a “matching of forces” between the people of the United States and those who claim the right to nullify both the U.S. Constitution and international law. 

It is not possible to project an exact scenario for terminating the Bush regime’s war crimes and bringing those responsible to justice. A chain will break at its weakest link, but it is often impossible to know which link is weakest until the pressure is applied. Affirmative measures are needed to increase the pressure until these war crimes are brought to a halt. Such action can provide a starting point for bringing the officials of all states, whether weak or strong, under the rule of law. 

Excerpted from In The Name Of Democracy: American War Crimes In Iraq And Beyond edited by Jeremy Brecher, Jill Cutler, and Brendan Smith (Metropolitan/ Holt 2005).