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An Even Worse Bybee Memo


By David Swanson, ImpeachBybee.org

Jay Bybee wrote another memo that nobody has noticed, one purporting to authorize crimes far worse than torture, the same crimes the torture was itself intended to create false justifications for. On October 23, 2002, Assistant Attorney General Bybee signed a 48-page memo to the "counsel to the president" (Alberto Gonzales) titled "Authority of the President Under Domestic and International Law to Use Military Force Against Iraq." This was another secret law, but instead of authorizing particular uses of torture (which in reality were far exceeded, engaged in prior to the memos, etc.), this one authorized any president to single-handedly commit what Nuremberg called "the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole." And while the torture memos extensively and grotesquely limited the days of sleep deprivation and the hours of waterboarding, the aggressive war memo included only a single paragraph at the bottom of page 47 requiring that:

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

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

The result was guaranteed to be massive death, no matter how "proportional" to the nonexistent threat. But the permission was also guaranteed to be wildly exceeded by anybody's definition. The result has been 1.2 - 1.3 million deaths according to Just Foreign Policy's updated figure based on the Johns Hopkins / Lancet report, and according to the British polling company Opinion Research Business's estimate as of August 2007. According to the United Nations High Commissioner for Refugees (UNHCR), the number of Iraqis who have fled their homes has reached 4.7 million. If these estimates are accurate, a total of nearly 6 million human beings have been displaced from their homes or killed. Many times that many have certainly been injured, traumatized, impoverished, and deprived of clean water and other basic needs, including the need to have parents.

And what has accumulated in the evil of the whole? The current occupation of Iraq has seen the United States target civilians, journalists, hospitals, and ambulances; use antipersonnel weapons including cluster bombs in densely settled urban areas; use white phosphorous as a weapon; use depleted uranium weapons; employ a new version of napalm found in Mark 77 firebombs; engage in collective punishment of Iraqi civilian populations; including by blocking roads, cutting electricity and water, destroying fuel stations, planting bombs in farm fields, demolishing houses, and plowing down orchards; detain people without charge or legal process without the rights of prisoners of war; imprison children; torture; and murder. Michael Haas has published a well-documented book with the clear title: "George W. Bush, War Criminal? The Bush Administration's Liability for 269 War Crimes." Jay Bybee's liability must not be minimized.

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

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

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

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

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

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

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Congress' powers to authorize the use of force or to declare war are a kind of by-product, or extension of the President's "inherent" right to launch any war he wants? And we thought Dr. Strangelove was a danger?

The more we learn, the more incredible it all is!

I am beyond surprise!

was a CYA for the fact that we had a "secret air war" going on from June, 2002, and early 2003. The US and the British carried out some "21,736 sorties over Iraq dropping more than 600 bombs on 391 'carefully selected targets before the war officially started,"* "claiming eight violations by Iraqi forces of the No-Fly Zone and 143 instances of 'recorded threats,'" as justification, which, apparently, wasn't even true, but was an excuse to bomb them to put pressure on the Iraqis.

"Between March and November 2002, coalition forces attacked Iraqi installations with 253,000 pounds of bombs. In June 2002 specifically, forces bombed Iraq with 20,800 pounds of munitions; in September, 2002, the tonnage amount to 109,200 pounds of bombs."

As I recollect, too, some of the targets were many of the Iraqi farm crops, animals, as well as other installations, which were destroyed.

*George W. Bush vs. U.S.Constitution,
Compiled by House Judiciary Committee Democratic Staff

So, coupled with the already on-going "secret air war," the extent of the actual damage of which is unknown to us, as far as I have been able to learn, Bybee also "legitimizes" the use of force to be used equivalent to and on the basis of the "threat" of WMD's,

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

thus, "legalizing" the horrendous treatment to Iraqis thereafter, as you (DS) have so specified -- all based on a supposition!

Every single one of these depraved persons operating in and for our government during the last eight years needs to be properly exposed, tried, convicted and incarcerated. If human life is so inconsequential to them, let them sit in prison to contemplate just how inconsequential it is!!!!!

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