Wednesday :: Mar 19, 2003

Does Bush Have a “Gulf of Tonkin” Problem?

by Steve

Although I am not an attorney (but I would like to play one on TV), allow me to suggest that George W. Bush may have stepped into a “Gulf of Tonkin” trap with his letter to Congress today justifying his actions in invading Iraq. In essence, he has started a war based on a still-unproven and possibly false reason, and therefore without necessary international authority.

As late as Monday in his statement to the nation, Bush maintained that he had the authority to take military action against Iraq based on existing requirements under UN Resolutions 678, 687, and 1441, all of which dealt with Iraqi requirements to disarm and account for weapons of mass destruction. But none of these resolutions target Iraq due to ties to terrorism.

Even as late as today’s Ari Fleischer press conference, the point was made that our authority to act stems from existing United Nations resolutions to disarm Saddam Hussein:

Q: The subsequent question I have for you is, the President in his speech two nights ago described the Iraqi threat as one that could be one to five years into the future to obtain either a nuclear weapon or something that could strike us, a non-imminent threat. In the President's mind, is he in this action, setting a precedent that the United States could now act, either preemptively or preventively, depending on how you define it, against a threat that is not an imminent one against the United States?

MR. FLEISCHER: Well, here's how the President approaches this. He believes, number one, based on the reviews conducted by the attorneys, that there already exists a legal basis both in international law, as well as in domestic law, for the use of force to disarm Saddam Hussein. And that is also found in Security Council Resolution 678 and 687, as well as 1441. The President also believes that there is a gathering threat from Iraq that with the failure by Saddam Hussein to disarm of his weapons of mass destruction presents a threat to the security of the United States. And therefore, he has come to the conclusion that after exhausting the diplomacy, that military force must be used if Saddam Hussein does not get out of the country.

That summarizes it for him.

Both the Monday night speech and the press conference today dwelled on the (alleged) authority to enforce existing UN resolutions. There was no mention in either the Monday night speech or today that the authority to attack stemmed from the never-proven allegations of Hussein’s direct culpability for the 9/11 attacks.

Yet in his statement of justification to Congress for military action, as required under the congressional resolution passed last fall, Bush claimed:

Consistent with section 3(b) of the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243), and based on information available to me, including that in the enclosed document, I determine that:

(1) reliance by the United States on further diplomatic and other peaceful means alone will neither (A) adequately protect the national security of the United States against the continuing threat posed by Iraq nor (B) likely lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and
(2) acting pursuant to the Constitution and Public Law 107-243 is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.

In essence, in fulfilling his obligations with Congress today, Bush relied on a justification not authorized by UN resolutions, international law, or any available evidence, namely Saddam’s unproven responsibility for 9/11.

This may all be moot, given the attempt at this hour by the Pentagon to roll the dice and try to kill Saddam with a “decapitation” strike first before starting the “Shock and Awe” campaign. Both the BBC and CNN have just reported that the Pentagon recommended and the President approved an attack at “a target of opportunity” confirmed to be five senior Iraqi leaders including Hussein. According to the BBC, the British military were not told of this change in plan. So until we hear more in the next hours, it is possible that the Pentagon staged a brilliant gamble to stop this war before it needed to start.

We can only hope for their success. But if this attempt doesn’t succeed, the campaign will begin and the questions as to the legitimacy for this campaign will be raised by people much better versed in law than me.

Steve :: 9:09 PM :: Comments (3) :: Digg It!