Remarks at the Democracy Convention, Minneapolis, Minn., August 4, 2017
I was asked to speak about prosecuting weapons dealers and war makers with a focus on Saudi Arabia. There are, I think, many ways that one could go about that. I say this as a non-lawyer, with certain perverse preferences that lawyers generally don’t share.
For example it’s my belief that if a president declares a bill to be unconstitutional and simultaneously signs it into law, he hasn’t done something sophisticated and moderate, rather he’s handed us Reason #82 to impeach him. This is what Trump just did with a signing statement on the sanctions bill. A signing statement, if you haven’t heard, was an outrage when Bush the Lesser developed it as a tool for announcing his intent to violate the very laws he signed into being. When Obama violated the Constitution and his campaign promises by doing the same and added the Silent Signing Statement in which he refrained from announcing his criminal intent whenever he could rely on a previous signing statement, that was of course a flawed humanitarian act by a legal scholar who meant well in his heart of hearts. And when Trump does it, it’s called normal and routine by the same New York Times reporter who was outraged by Bush. This in a nutshell is how violating a law, in this case the highest law, becomes the accepted interpretation of the law. Once both branches of the U.S. government — the Republican and the Democratic — have accepted a crime it’s not a crime, or as Dick Nixon might have put it, if both parties do it then it’s legal.
By a similar process, routine violation of the UN Charter’s ban on war (and of course of the Kellogg-Briand Pact’s stronger ban on war) has been made into the legal enforcement of the UN Charter’s Responsibility to Protect. The fact that neither the UN Charter nor any other written law ever mentions the Responsibility to Protect should not distract you from the de facto law of the land — at least not if you’ve been to law school and have a successful career in mind. Not only is war legal in the view of most lawyers, but anything that is part of a war is legal. This is the inversion of the case brought against the Nazis at Nuremberg, which held that the violation of the Kellogg-Briand Pact rendered criminal any component parts of — any particular atrocities or complicity in — the war. Nowadays we have lawyers like Rosa Brooks testify before Congress that drone murders are murder if not part of a war and perfectly fine if part of a war — with the question of whether they are part of a war unknowable because the president determines that in secret memos.
In Yemen, in my naive view that treats written laws as, you know, laws, Saudi Arabia is violating the UN Charter and the Kellogg Briand Pact. So is the U.S. military in its active collaboration on the destruction of Yemen, which has been indispensible and has included troops on the ground including those admitted to today as reported in the Washington Post. But if famine creation or disease epidemic creation were a crime, then Saudi Arabia and the United States would be guilty of that crime as well. This massive, possibly world’s greatest current, tragedy is without question largely the creation of this war and of Obama’s so-called successful drone war on Yemen that helped get us here — a war which also violated the same laws. On top of this fundamental violation of what became understood at Nuremberg as the supreme international law, when the U.S. military collaborates with Saudi Arabia it also violates a U.S. law called the Leahy Law, which requires that the U.S. military only support mass murder by nations that do not violate human rights. Not being a lawyer, I cannot explain to you how to commit a mass-murder that respects human rights. But I am able to suggest how Saudi Arabia, even while holding a leadership position on the UN Human Rights Council, is a world leader in quintessential violations of human rights.
Reportedly Donald Trump decided to stop the U.S. arming of rebel fighters in Syria after watching a video of one such U.S.-backed group murdering a little child. Has Donald Trump not seen any videos of Saudi Arabia beheading or whipping men, women, or children? For that matter, does he believe that U.S. missiles kill without dismembering? Is there a law somewhere that I haven’t heard of that sanctions murders that leave the head connected to the torso? Saudi Arabia is about to execute 14 people for protesting, including a student of the University of Michigan who was arrested at the airport as he tried to fly to the United States.
Now, there exists a legalisticalish defense I haven’t mentioned of bombing Yemen, blockading Yemen, starving thousands of Yemenis to death, spreading cholera across the Yemeni population, and all such respectable attacks on Saudi Arabia’s impoverished neighbor. And it is this: Yemen’s deposed and exiled dictator has invited Saudi Arabia and the United States to bomb the people who failed to respect his tyrannical rule. On its face this seems reasonable enough. After all, if Donald Trump were to be impeached and removed from office, and he were to take up residence on some private island somewhere and invite China to produce his golf outfits with slave labor, oh and also to bomb various U.S. cities flat, we’d all recognize the legitimacy of that action, wouldn’t we?
This is similar to the defense of Russian bombings in Syria. But where is the law that permits it? Where can I read that law? And how do dubious and certainly exaggerated claims that the Saudi war in Yemen is actually a war against Iran prop up this argument? Two crimes do not make a legality.
But how do we go after the weapons sales? Their authorization? Or the weapons dealers? The Pope tried telling Congress members they had blood on their hands. They gave him a standing ovation and escalated the weapons sales. As far as I know, we have to use the world court and the International Criminal Court to go after the war makers, thereby ending the related weapons usage. Then we have to ban the weapons sales and prosecute any violation of that ban going forward. But we can proceed immediately with public campaigns to divest from the weapons dealers and to shame the weapons dealers and their Congressional enablers.
The international courts are under the thumb of the permanent security council members, meaning that we need to reform them, structurally or through public pressure, and/or we need to persuade individual nations to prosecute under universal jurisdiction. Spain tried that with U.S. torturers, and the U.S. came down hard on Spain.
The one place where the ICC claims to be considering prosecuting a non-African is U.S. crimes — not the crime of war, but lesser crimes — in Afghanistan — which is an ICC member, thus providing jurisdiction even though the United States is not a member. This is Bush and Obama era crimes, so unacceptable to both branches of the U.S. government, but the war on Afghanistan is losing popularity among those who know it hasn’t ended. We can now ask people: “If you couldn’t oppose the Obama war on Afghanistan to benefit the people bombed, can you oppose Trump’s war to steal their rocks?” Movement by the ICC on prosecuting U.S. crimes in Afghanistan might be just the final straw we need to put an end to that 16-year-long horror. And it would set a wonderful precedent, including for Yemen — albeit not in time to save many thousands of lives, unless perhaps we begin by ending the practice of lawyers billing by the hour.
Another approach we can take is to break apart the U.S.-Saudi relationship. We ought to be able to do that. Remember that another legalish excuse for all these wars is the Authorization for the Use of Military Force passed by Congress in response to the 9/11 crimes, which we now know were facilitated by the Saudi government. We also know that Saudi Arabia has been a top proponent of war and terrorism for years, not to mention a top producer of slow death by fossil fuels. Bernie Sanders ran for president on the position that Saudi Arabia should “get its hands dirty” and fund more of the wars the world depends on, so that the United States can stop funding so many of them. My view is that Saudi Arabia’s more than sufficiently dirty hands should be kept out of my pockets.
One pseudo-legal way to do that would be to start impeaching and unelecting people for legitimate reasons rather than Russophobia or oral sex. Or, more realistically, we could work on finding Saudi ties to either Russia or sex in the White House. I believe the latter course is most in line with what our founding fathers intended.