November 25, 2008
by James Rothenberg

If your government told you it lied to you for your own good, would you graciously accept your good fortune? Or would you, failing to find yourself content with this, repel it and pursue universal concepts such as truth and justice? For no other reason than they exist?

A little background starting with a declassified top secret memorandum by George Kennan, US Director of the Policy Planning Staff, on February 24, 1948:

"We have decided in this Government that the security of the Middle East is vital to our own security.... to the present security concepts on which this Government is basing itself in its worldwide military and political planning."

Speaking now about the Far East, although the concepts generalize and age well:

"Furthermore, we have about 50% of the world's wealth but only 6.3% of its population.. In this situation, we cannot fail to be the object of envy and resentment. Our real task in the coming period is to devise a pattern of relationships which will permit us to maintain this position of disparity without positive detriment to our national security..We should dispense with the aspiration to "be liked" or to be regarded as the repository of a high-minded international altruism. We should stop putting ourselves in the position of being our brothers' keeper and refrain from offering moral and ideological advice. We should cease to talk about vague.unreal objectives such as human rights, the raising of the living standards, and democratization. The day is not far off when we are going to have to deal in straight power concepts. The less we are then hampered by idealistic slogans, the better."

This was the position of a foreign policy moderate. Today's hawks consider that the current iteration of these straight power concepts (outright aggression) must be clothed in, for domestic approval, just these idealistic slogans, and the more the better.

Here is Jimmy Carter in his 1980 State of the Union Address, articulating what has become known as the Carter Doctrine:

"Let our position be absolutely clear: An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force."

How realistic is it to expect President Obama to allow Iraq to fall out of US control, given that control over that area is even more crucial now than it was when our existing policy was long ago formed? The hawks have insisted that our military bases in Iraq are not to be considered permanent. Correct, strictly speaking. The bases are, rather, just as the Eiffel Tower is, quasi-permanent.

A premiere British legal figure, Lord Bingham of Cornhill, made some intensely sharp accusations in a November 18 lecture at the British Institute of International and Comparative Law. In contradicting the opinion of then attorney general Lord Goldsmith that the invasion was lawful, Bingham stated, "It was not plain that Iraq had failed to comply [with UN resolutions] in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had."

Then there is the essential point (if adherence to law is a guiding principle) that it is not the province of the US or UK or anyone else to decide the matter. Only the UN Security Council itself could judge whether there had been compliance with its resolutions and, if appropriate, authorize further action. On this Bingham said, "If I am right that the invasion of Iraq by the US, the UK, and some other states was unauthorised by the security council there was, of course, a serious violation of international law and the rule of law."

UN Secretary General Kofi Annan, on September 16, 2004 said as much in a BBC interview (viewable on the internet): "I'm one of those who believe that there should have been a second resolution, because the Security Council indicated that if Iraq did not comply there will be consequences, and then it was up to the Security Council to approve or determine what those consequences should be."

Interviewer: "Then you don't think there was legal authority for the war?"

Annan: "I've stated clearly that it was not in conformity with the Security Council, with the UN Charter."

Interviewer: "It was illegal!"

Annan (smiling agreeably): "Yes, if you wish."

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Owing to Bingham's stature (The Times said he "is regarded as the pre-eminent lawyer of his generation with a brilliant, incisive mind. On top of that, he has held the three posts of Master of the Rolls, Lord Chief Justice and now senior law lord (retiring this year) each with consummate skill.") Lord Goldsmith was quick to the counter: "I stand by my advice of March 2003 that it was legal for Britain to take military action in Iraq. I would not have given that advice if it were not genuinely my view. Lord Bingham is entitled to his own legal perspective five years after the event."

And there you have it. Five years after! To be sure, Bingham's stated legal opinion might have had an effect had he said it five years earlier (actually five plus), but he was working at the time and so prohibited (not prohibited by conscience but by job description). We have the same problems in the US. Our secretaries of state serve at the pleasure of the president, so what was poor Colin Powell to do? Well we know what he did and we know what he could have done, because others in his department did it.

John Brady Kiesling, February 27, 2003 - John H. Brown, March 10,2003 - Mary A. Wright, March 19, 2003

These are the others and the dates of their letters of resignation. They could not, in conscience, be any longer associated with a government that was behaving in an uncivilized fashion. Kiesling got out before being eligible for pension. Powell probably could have done alright with his,  what with his age and four-stars and all. And Mary Wright is still out on the streets fighting for what Powell never began to fight for.

But notice what time does. Those five years that Lord Goldsmith was referring to. It continually pushes truth away because the preferred historical record acts like an expanding aether - in concrete terms a stonewall - where it gets forever more difficult to reconcile one with the other to any practical effect. It also makes it possible for Obama, reputedly dead against the invasion from the start, to value the endorsement of Powell, an integral part of the invasion thesis and the one person who might have actually been able to prevent it.

It is the UN Charter that Lord Bingham is referring to when he notes "a serious violation of international law and the rule of law." Article 6 of the US Constitution makes the UN Charter (a treaty) as much the "supreme Law of the Land" as the Constitution itself.

It should be noted that Bingham was addressing the so-called "revival argument", namely Iraq's alleged failure to comply with UN resolutions. At the time the Bush administration gave up all pretense of legality through that argument, but instead invoked the internationally recognized principle of self-defense and declared the right to act pre-emptively. For the record, pre-emption is where you strike someone who is about to strike you. This was a monstrous lie, now clear to everyone, and completely indefensible. A preventive strike is where you strike someone who may have the desire and capability to strike you at some time in the near future. Even this lesser thresshold would have been a monstrous lie, and just as indefensible. This doesn't leave much, and what's left is called aggression, and it's referred to as the most serious of all international crimes, deservedly so.

Ask any of the top law enforcement people in the US or UK how they feel about indicting the highest officers in either of their lands for crimes against peace, crimes against humanity, and war crimes. There is a standard line used by high, legal officers when entertaining questions of this kind. "I'm not about to turn the justice system into a circus". If this wording isn't quite exact, look for the word circus.

Let's return to Goldsmith's insidious "five years after" and see the logic in its full regalia, because he could have stopped at "Lord Bingham is entitled to his own legal perspective", conveying the same information. The idea is to create the impression that the opinion that was given at the time enjoys, simply by nature of its temporal precedence, an advantage over an opinion now given. This impression becomes the greater as the length of time increases, and this is not lost on the user of the ploy. One only has to consider how much more secure Goldsmith would have felt should he have been able to say, "fifty years later" (the stage where it is safe to laugh).  

(Note: Some people do talk "on time". They're called whistleblowers, and whistleblowers against the state enjoy much the same status as was reserved in the past for lepers. Thankfully today we have a lightspeed transworld express known on the internet as Wikileaks, a democratic tool for the self-inclined.)

So this is where we are. Even when it is demonstrable that crimes of the highest order have been committed by people in the highest places, we can never count on the legal system of the host country to convict its own, or, what it actually amounts to, convict itself. And this insures the promise of a future where new leaders are free to act with impunity. This is the unpromising land that promised change will be forced to grow in.

Technorati Tags: Government, Lies, Foreign Policy, Crimes

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James Rothenberg [send him email] was born in 1939 and made his living as a professional golfer. His trade articles have appeared in USGA Golf Journal and PGA Magazine, as well as authoring the book, The Skeptical Golfer. In more recent years this skepticism led him into the field of social and political criticism, exchanging "making a living" for "living for making", that is, making the slightest dent in establishment hypocrisy and double standards.

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