To respond to these articles, please use the feedback form.
|LEGALITY OF THE VIETNAM WAR|
|CHANGE REQUIRES THE ULTIMATE ACCOUNTABILITY||LA RIOTS AS DOMESTIC TERRORISM|
WARFARE IS GOVERNED BY INTERNATIONAL LAW
The law of war is derived from two principle sources(1) Lawmaking Treaties (or Conventions) such as The Hague and Geneva Conventions and (2) custom, which is a body of unwritten or customary law firmly established by the custom of nations and well defined by recognized authorities on international law. (See FM 27-10, The Law of Land Warfare, Department of the Army, Washington, GPO, p. 4, July 1956).
The following are examples of the body of international law relied upon by the United Nations, commissions, tribunals, and diplomats in addressing international issues and disputes:
The Charter of the United Nations;
The Universal Declaration of Human Rights, of 10 December 1948;
The International Covenant on Civil and Political Rights, of 16 December 1966;
The International Covenant on Economic, Social and Cultural Rights, of 16 December 1966;
The (Fourth) Geneva Convention relative to the protection of Civilian Persons in Time of War, of 12 August 1949;
The Geneva Conventions relative to the treatment of Prisoners of War, of 12 August 1949;
The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 1 May 1954;
The Hague Conventions of 1899 and 1907 respecting the Laws and Customs of War on Land.
The United Nations often relies on those resolutions relevant to the situation of civilians in occupied territories adopted by United Nations organsthe General Assembly, the Security Council, the Economic and Social Council and the Commission on Human Rightsin making decisions.
Treaties (or Conventions) to which the United States is a party are legally binding.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under the authority of the United States, shall be the supreme Law of the Land". (U.S. Constitution, Article VI).
The President can make treaties.
"He (President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties". (U.S. Constitution, Article II, Section 2).
The President has a duty to honor the terms of treaties to which the U.S. is a party, and he is obligated to enforce them because they are the supreme law of the land.
"(H)e (President) shall take care that the Laws be faithfully executed". (U.S. Constitution, Article II, Section 3).
The Geneva Conventions of 1949 for the Protection of War Victims and the Hague Convention No. IV of 1907 Respecting the Laws and Customs of War on Land were intended to be, and are, legally binding on the United States and its citizens, especially members of the armed forces. (See AR 350-216, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, Department of the Army, Washington, GPO, 7 March 1975).
The Fourth Geneva Convention requires the parties to:
"Ensure respect for and protection of the civilian population and civilian objects and to distinguish at all times between the civilian population and civilian objects and military objectives. They also call upon the parties to abstain from any measures of brutality and violence against the civilian population to military operations."
The Geneva Conventions have some specific provisions relating to bombardments:
"The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." (See FM 27-10, The Law of Land Warfare, Department of the Army, Washington, GPO, p. 19, July 1956).
The Conventions further prohibit unnecessary killing and devastation:
"... loss of life and damage to property must not be out of proportion to the military advantage to be gained. Once a fort or defended locality has surrendered, only such further damage is permitted as is demanded by the exigencies of war, such as the removal of fortifications, demolition of military buildings, and destruction of stores." (Ibid. p.20).
The Hague Convention of 1907 also specifically deals with the delivery of munitions from aerial platforms:
"There is no prohibition of general application against bombardment from the air of combatant troops, defended places, or other legitimate military objectives." (Emphasis added). (Ibid.)
Protocol I to the Geneva Conventions of 12 August 1949 relating to the protection of victims of international armed conflicts prohibits indiscriminate attacks on the enemy civilian populace.
"Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which cannot be limited as required by this Protocol;
and consequently, in each case, are of a nature to strike military objectives and civilians or civilian objectives without distinction." (Emphasis added). (See DAP 27-1-1, Protocols to the Geneva Conventions of 12 August 1949, Department of the Army, Washington, GPO, p. 36, September 1979).
The Protocol further states what may have the most direct application to consider of the United States aerial bombardment of Iraqi civilians in populated cities:
"Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." (See DAP 27-1-1, Protocols to the Geneva Conventions of 12 August 1949).
The Law of War and the provisions of these Conventions are applicable to U.S. armed forces actions in Afghanistan and Iraq and anywhere else the U.S. engages in military action. These same principles of international law are applicable to the Israeli Defense Forces actions against the Palestinians. Suicide bombings by the Palestinian "terrorists" do not justify Israeli mass reprisals or indiscriminate attacks (acts of terrorism) by the use of helicopters, jets, or tanks on innocent civilians in the occupied territories under principles of international law.
BASIC U.N. PRINCIPLES AND PROCEDURES
World War II ended in 1945. In the same year, the governments of the world met to create a Charter for the United Nations. The "purposes and principles" as stated in the Charter were:
"To maintain international peace and security; to develop friendly relations among nations; to promote cooperation among nations for the purpose of solving economic, social, cultural, and humanitarian problems and promote respect for human rights and fundamental freedoms; and to serve as a center for harmonizing the actions of nations in attaining these common ends."
The United States is a member of the United Nations and is bound by the terms of its Charter. The UN Charter gives the Security Council primary responsibility for maintaining international peace and security. The Security Council, alone, has the power to back up its declarations with actions to ensure compliance with them. No one nation can tell the Security Council what to do, including the United States. Operation Iraqi Freedom was illegal, in part, because it lacked Security Council approval.
Article 41 provides:
"The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."
Article 42 provides:
"Should the Security Council consider that the measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."
Thus, other than for self-defense, a nation may use armed force against another nation only with the concurrence of the Security Council. Five of the Councils members are designated permanent members the US, Russia, Britain, France, and China. The other ten members are elected by the General Assembly for two- year terms. For a resolution to pass, it must receive nine "yes" votes with five of them being unanimous votes from the five permanent members.
THE BASIC RIGHT OF SELF DEFENSE
Article 51, UN Charter says:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of The United Nations, until The Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to The Security Council and shall not in any way affect the authority and responsibility of The Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
Terrorism has been defined as the calculated use of violence or the threat of violence to attain political, religious, or ideological goals by instilling fear or using intimidation or coercion. TC 19-16, Countering Terrorism On US Army Installations (April 1993). AR 190-52.
International terrorism involves violent acts or acts dangerous to human life that violate US federal or state law if they would have been committed in the US and appear to be intended to coerce a civilian population or to influence the policy of a government by intimidation or coercion or to affect the conduct of the government by mass destruction, assassination, or kidnapping and occur primarily outside the US or transcend the US boundaries by the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. (Emphasis added). 18 USC 2331 (1)(A)(B)(C).
Domestic terrorism involves acts dangerous to human life that violate US federal or state law and appear to be intended to coerce a civilian population or to influence the policy of a government by intimidation or coercion or to affect the conduct of the government by mass destruction, assassination, or kidnapping and occur primarily within the territorial jurisdiction of the United States. (Emphasis added). 18 USC 2331 (5)(A)(B)(C).
Terrorism is a crime under US domestic law. A crime requires criminal intent; therefore, what does the terrorism statute mean when it prohibits acts which "appear to be intended" to do certain things? Mens rea (or guilty mind) is a prerequisite for the commission of a crime. Due process requires that the other trappings of a criminal justice system (e.g., right to be informed of charges against the accused, right to counsel, right to bond, right to a speedy trial, right to trial, presumption of innocence, requirement for proof beyond a reasonable doubt before conviction and punishment, etc.) also apply to "terrorists".
The U.S. used the "war on terror" as an excuse to violate many persons rights, especially if they were Arab or Muslim (e.g., the hundreds of arrests and incarcerations of individuals for minor visa related violations). On October 26, 2001, President Bush signed the USA Patriot Act (USAPA) into law which gave sweeping new powers to both domestic law enforcement and international intelligence agencies and eliminated checks and balances that courts previously had to prevent abuses. The law makes it easier to conduct electronic surveillance on citizens without "probable cause" to believe a crime has been or is being committed. "Terrorism" is defined more broadly to probably include legitimate protest marches which may result in someone being injured. The proposed USAPA II includes the term "enemy combatant" to mean a citizen who may have violated the new broader definition of terrorism under USAPA I. "Enemy combatants" could be held without the normal constitutional rights a criminal defendant would have, and they could be tried before military tribunals.
The U.S. also used the "war on terror" as an excuse to invade two sovereign foreign countriesAfghanistan and Iraq--in violation of international law and to treat captured Afghanis and occupied Iraqis in an inhumane manner. The United States had no more legal authority to invade Iraq than it did to invade Afghanistan under the pretense of fighting "terrorism". (See, generally, "U.S. Bombing of Afghanistan Not Justified As Self-Defense Under International Law" by Leslie M. Rose, Guild Practioner, January 2002). The U.S. occupation of Iraq and the reprisals against Iraqi citizens in the name of "security" also violate international law. It is obvious that the tons of weapons of mass destruction alleged to exist in Iraq immediately before the U.S. led invasion simply did not exist as stated by the U.S. administration. Whether or not WMD are found, the U.S. invaded Iraq for no legitimate reason under international law.
Israel has maintained its "security" in the "war on terror" by using rockets, tank rounds, or bombs to kill innocent Palestinian civilians (men, women, and children)as much an act of terror as the act of the individual who detonates explosives in a crowded Israeli gathering of innocent people. I believe that "security" should never be used as an excuse to violate the principles of freedom stemming from the U.S. Constitution and the principles of human rights embodied in international law.
UN RESOLUTION 687 IMPOSED SANCTIONS ON IRAQ
The UN imposed sanctions on Iraq, after Desert Storm, through UN resolutions. Resolution 687 (November 29, 1990) established cease-fire terms and set up the UN Special Commission (UNSCOM) to disarm Iraq, and it listed specific conditions for lifting sanctions. Under paragraph 8, Iraq was to destroy, remove, or render harmless, under international supervision, all chemical and biological weapons and all stocks of agents and related subsystems and components and all research, development, support and manufacturing facilities. Iraq was to get rid of its ballistic missiles with a range greater than 150 kilometers.
Under paragraph 11, Iraq was "invited" to reaffirm its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968. Under paragraph 12, Iraq was to unconditionally agree not to develop nuclear weapons or components or subsystems or to do nuclear research.
Under paragraph 22, if Iraq complied with the provisions of the resolution, then the prohibitions against the import of commodities and products originating in Iraq and the prohibitions against financial transactions related thereto would no longer have force or effect. In other words, if Iraq wanted to do commerce again with the rest of the world, it had to comply with the disarmament provisions. If it did not comply, the trade embargos would remain in effect, financial transactions would remain barred, and government assets would remain frozen. There was no provision in the resolution which authorized the invasion of Iraq if it did not comply. Iraq had never attacked the US, and the UN had allowed the status quo for over a decade
UN RESOLUTION 1284 REQUIRES QUARTERLY REPORTS TO SECURITY COUNCIL
UN Resolution 1284 (1999) established the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) to replace the special commission established pursuant to resolution 687. As Hans Blix stated in his report to the Security Council on March 7, 2003, UNMOVIC was working under resolution 1441 (2002) and several other UN resolutions. He was required to submit a quarterly report under resolution 1284 to the Security Council on "unresolved disarmament issues" and to identify "key remaining disarmament tasks" and the latter were to be submitted for approval by the Security Council in the context of a work program. (See Hans Blixs Report, March 7, 2003).
The Security Council was to determine the progress of the disarmament, not the United States. When the US invaded Iraq on March 19, 2003, it violated UN resolution 1284, the UN Charter, and the Geneva Conventions. One must also remember that all the rhetoric about the tons of weapons of mass destruction was the primary justification for the U.S. to invade Iraq. The location of the WMD has been a mystery even though the U.S. has spy-satellite cap-ability.
NO-FLY ZONES OVER IRAQ NOT SANCTIONED BY UNITED NATIONS
Some may say that the shooting at US pilots who flew over the "UN no-fly zones" by the Iraqis constituted "attacks" on the US, but US and British warplanes have bombed more that 80 targets in Iraqs southern "no-fly" zone during the last half of 2002, conducting an escalating air war even as UN weapons inspections proceeded and diplomats looked for ways to avoid war. The interesting point is that the United Nations did not recognize the no-fly zones or the US assertion that it was enforcing UN resolutions. In the fall (2002), Russias foreign ministry said escalating attacks by US and British warplanes against Iraqi air defenses have made it more difficult for UN efforts to resume weapons inspections in Iraq. Iraq said it fired at the aircraft because they were violating Iraqi airspace. (See "Airstrikes in Southern Iraq No-Fly Zones Mount" by Vernon Loeb, Washington Post, January 15, 2003).
THE INTERNATIONAL CRIMINAL COURT
The obligations between states under the law of war have become obligations to protect individuals. The substitution of "international humanitarian law" for the terms "law of war" and "law of armed conflict" descriptively reflects this movement. Initially, the term "international humanitarian law" referred only to the four 1949 Geneva Conventions, but it is now increasingly being used to signify the entire law of armed conflict. The entire focus of the law of war has broadened from solely protecting states interests to increasingly protecting individuals interests. ("Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict" by Major Alex G. Peterson, Military Law Review, pp. 13-14, Vol. 171, March 2002).
The law of war recognizes prosecution by third-party countries under the principle of universal jurisdiction. Under the Geneva Conventions, signatory states have a duty to prosecute or extradite persons alleged to have committed violations of the law of war, regardless of whether the state was involved in the underlying conflict.
The international community has devised another way to deal with rogue nations and war crimes. The Rome Statute of The International Criminal Court (July 1999) purports to impose jurisdiction over some accused criminals from non-consenting states, even those states which are not parties to the treaty that created the ICC. The Court has jurisdiction over the crime of genocide; crimes against humanity; war crimes (e.g., willful killing; willfully causing great suffering; extensive destruction and appropriation of property not justified by military necessity; unlawful deportation or transfer; intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated); and the "crime of aggression", which has yet to be defined.
The allegation that such a crime has been committed may be referred by a State Party (to the ICC), or may be referred by the Security Council, or may be received by the Prosecutor from any other source. If the Prosecutor determines that a reasonable basis to investigate exists, before investigating he must notify any states which would normally exercise jurisdiction over the crime alleged. Upon receiving such a deferral request, the Prosecutor must defer to the states investigation unless the Pre-Trial Chamber specifically authorizes the Prosecutor to proceed despite the deferral request. (See generally, "The Globalization of Justice: The Rome Statute of the International Criminal Court" by Lieutenant Colonel Bruce D. Landrum, United States Marine Corps, THE ARMY LAWYER, DA Pam 27-50-356, September 2002).
Perhaps this US invasion of Iraq might be cited as an example of a "crime of aggression". Perhaps a massive bombardment of non-military targets and the indiscriminate killing of hundreds or thousands of innocent Iraqi citizens could be cited as war crimes or crimes against humanity or even genocide. Perhaps the U.S. subjecting Iraqi prisoners to "cruel, inhuman, or degrading" conditions at U.S. detention centers might be considered a violation of international law as reported by Amnesty International. ("Rights Group Says U.S. Detentions Of Iraqis May Violate International Law" by Jim Krane, The Associated Press, 30 June 2003).
If the United Nations, the European Union, Russia, and China ever united to enforce these basic principles of international law, U.S. political and military leaders could be tried for war crimes.
The aforementioned international legal principles are applicable to all of the signatories of the relevant treaties and other international charters, agreements, protocols, memoranda of understanding, etc. between or among the nation-states involved. As previously noted, the "custom" of international law or the law of war or the law of human rights also has substantial influence among the nations of the world. Hence, if tribal war-lords or even a powerful nation-state were to act outside the norms of the international community by engaging in war crimes or genocide or an act of "aggression" which involved war crimes or genocide, they could be tried by an international tribunal even if they did not agree to be so tried.
On June 12, 2003 the United Nations Security Council approved another one-year exemption for American military from prosecution by the International Criminal Court. The resolution adopted by a 12-0 vote with three abstentions authorized a one-year exemption from arrest or trial for peacekeepers from the United States and other countries that have not ratified the Rome Treaty establishing the ICC. China indicated it was "positively considering" ratifying the Rome Treaty. In the previous years battle on this issue, the U.S. threatened to end far-flung peacekeeping operations established or authorized by the United Nations if it did not get an exemption. ("U.S. Given Exemption From War Crimes Prosecution", Associated Press, 12 June 2003).
Belgium had empowered its courts to try foreigners for serious human rights crimes no matter where they were committed. Several countries and most vociferously the United States criticized Belgium law which entertained lawsuits against Israeli Prime Minister Ariel Sharon, General Tommy Franks, former President George Bush, Secretary of State Colin Powell and General Norman Schwarzkopf. Secretary of Defense Rumsfeld vowed to freeze spending on NATOs new headquarters in Brussels unless the law was revoked. ("Belgium Sticks by War Crimes Law Despite U.S. Anger" by Bart Crois and John Chalmers, Reuters, 13 July 2003). Eventually, under pressure, Belgium changed its law to apply only to Belgium citizens or residents. ("Belgium to Scrap War Crimes Law" by Andrew Osborn, The Guardian, 15 July 2003).
The most recent U.S. action to alienate the world community and show distain for the rule of international law occurred on July 1, 2003 when the U.S. suspended all U.S. military assistance to 35 countries because they refused to pledge to give U.S. citizens immunity before the international Criminal Court. The administration warned last year that under a provision of the new anti-terrorism law any country that became a member of the ICC but failed to give an exemption would lose all U.S. military aid, including education, training, and financing of weapons and equipment purchases. ("Bush Suspends U.S. Military Aid to 35 Countries Over the World Court" by Elizabeth Becker, New York Times, July 2, 2003).
The U.S. has been able to intimidate the international community and flaunt international law because of its military and economic might, but I believe it is inevitable that circumstances will change; and the ICC will eventually exert jurisdiction over U.S. criminal defendants. 7/03
SUBJECT: Military Police Authority in Low Intensity Conflicts
1. Purpose: To determine authority and jurisdiction of Military Police to enforce law in low intensity conflicts.
a. The Army of the future will probably be called upon to operate in low intensity conflicts which affect U.S. security or economic interests or those interests of our allies or others who request our assistance.
b. Justification for intervention in low intensity conflicts will vary with our interests and the situation (e.g., self-defense, defense of an allied nation or a nation who requests our assistance, to honor a treaty or other international agreement, to maintain security in a region, to fight terrorism, to rescue hostages, to help stabilize or rebuild a government, to assist in disaster relief operations, or to neutralize drug trafficking).
c. Military Police, because of their special training and capabilities (e.g., combat, law enforcement, crowd and traffic control, disaster relief, nation-rebuilding, and force protection), have shown their value; and future missions of the Army in low intensity conflicts will require Military Police units especially in the nation-rebuilding phase.
d. Control over the civilian populace and any restrictions will be governed by the laws of the U.S., Treaties or other international agreements, and/or the laws of the host nation depending on the situation.
e. Use of force, apprehension, search and seizure, and confinement and any restrictions will be governed by the laws of the U.S., Treaties or other international agreements, and/or the laws of the host nation depending on the situation.
f. Military police improperly performing law enforcement tasks may be liable for sanctions to be imposed under the laws of the U.S., Treaties or other international agreements, laws of the host nation or laws of another country who has the power to enforce its laws.
MILITARY POLICE AUTHORITY TO ENFORCE LAW AND RESTRICTIONS IN LOW INTENSITY CONFLICTS
In order to determine the "authority" of U.S. Military Police units to enforce laws in "low intensity conflicts", it is important to remember that the term "low intensity conflict" has a broad and varied meaning. (See enclosure 2). Historically, the U.S. has been involved in LIC operations such as in Vietnam, Grenada, and Panama. The future could see U.S. forces, including Military Police, involved in low intensity conflicts in Honduras, Nicaragua, E1 Salvador, Lebanon, Iraq, Iran, Israel, Federal Republic of Germany, or one of the other emerging "democracies" in Europe.
Low intensity conflict ranges from subversion to the use of armed force, and it is waged by a combination of means employing political, economic, informational, and military instruments.
Justification to use armed forces, including Military Police, can be found under principles of international law and the United Nations Charter, Article 51, which allows a member nation to engage in individual or collective self-defense against an armed attack. (See enclosure 3).
Assuming that the U.S. uses military forces in a low intensity conflict, it may do so under these conditions: (1) it is in self-defense; (2) it is necessary; and (3) it is proportionate to the threat defended against. [See enclosure 3 and DA Pam 27-100126, Vol. 126, at 96 (Fall 1989)].
Once the legal authority or justification for the use of U.S. armed forces (the military) in the low intensity conflict is established, the next question relates to the authority of Military Police to perform their missions during the LIC. The missions of Military Police are battlefield circulation control, area security, enemy prisoner of war operations, and law and order operations. (See enclosure 4).
The authority to perform these missions will stem from the law of the U.S., including the Uniform Code of Military Justice, treaties or other international agreements, and the laws of the host nation.
If the government of the nation in which the U.S. armed forces are deployed, is unable or unwilling to function, or if that government is to be suppressed by U.S. armed forces--then the U.S. military and the "law of war" will govern the conduct of Military Police operations. The "law of war" has evolved through the centuries, and many principles of conduct in combat and principles relating to the treatment of civilians and enemy prisoners of war (EPWs) have been modified in international treaties such as the Hague and Geneva Conventions and the Protocols to the Geneva Conventions. DA Pam 27-1, Treaties Governing Land Warfare, December 1956; DA Pam 27-1-1, Protocols to the Geneva Conventions of 12 August 1949, September 1979.
The law of war applies to U.S. military forces, including Military Police who may become involved in enforcing the law of war.
THE LAW OF WAR
The law of war consists of four categories
The customary law of war and the Geneva Conventions of 1949 also established the laws for treatment of noncombatants, enemy prisoners of war (EPWs) sick and wounded, and other persons captured or detained in combat: All captives or detainees must be treated humanely.
1. Let enemy soldiers surrender.
2. Treat all captives and detainees humanely.
3. Don't use coercion in questioning captives and detainees.
4. Provide medical care for the sick and wounded captives.
5. Safeguard captives from the dangers of combat.
6. Don't take personal property from captives.
Civilians in the conflict have rights. Unnecessary destruction of property and inhumane treatment of civilians are violations of the law of war for which a soldier can be prosecuted. FM 27-2, at 20, November 1984. .
1. Don't violate civilians' rights in war zones.
2. Ensure the safety of civilians. It is lawful to move or resettle civilians if it is urgently required for military reasons, such as clearing a combat zone.
3. Don't burn or steal civilian property. Do not burn civilians' homes or property unless the necessities of war urgently require it. FM 27-2, November 1984.
Military Police have the authority to enforce the law of war. All military commanders and leaders, without regard to rank or position, have a duty to prevent criminal acts, including violations of the law of war, where U.S. troops are involved. FM 272, November 1984.
A violation of the law of war is a crime and is subject to punishment under U.S. law, which includes the Uniform Code of Military Justice (UCMJ). An order to commit a crime is illegal, and a soldier is obligated to disobey such an order which violates the common-sense rules of decency, social conduct, and morality. Orders to "take care of" captives or detainees (meaning to execute them) are unlawful and should not be obeyed. FM 27-2, November 1984.
Violations of the law of war should be reported through the chain of command; and if the crime involves an immediate superior, it should be reported to his superior. Violations of the law of war may also be reported by anyone to the inspector general, provost marshal, chaplain, or judge advocate. FM 27-2, November 1984. See also R.C.M., Rule 301(a).
INTENSITY OF CONFLICT MAY INFLUENCE APPLICABLE LAW
As a low intensity conflict makes a transition from a combat mode to more of a nation rebuilding or stabilization mode, the authority of Military Police to enforce laws and the jurisdiction of U.S. Military courts could change. In other words, on one-end of the continuum is the combat mode where Military Police authority to enforce laws stems from the chain of command, U.S. law, and the law of war. On the other end of the continuum is the post-combat mode where U.S. troops are occupying a host country; and the host country has jurisdiction over civilians and even U.S. military personnel who are accused of crimes committed not in the performance of official duty. DA Pam 360-544, at 12, October 1975.
Of course, the U.S. military retains the right and jurisdiction to try its service members for purely military offenses (R.C.M. Rule 201), and Military Police have the authority in low intensity conflicts to apprehend (or arrest) suspects (R.C.M. Rule 302).
Military Police may perform law and order functions to include interrogation of suspects, searches, seizures, inspections of and intrusions into bodies for the purpose of acquiring
evidence for trials by courts-martial consistent with U.S. laws, the U.C.M.J. and whatever international agreements may have been implemented to govern U.S. armed forces actions. See generally, R.C.M., Mil. R. Evid., Sections III and IV. In the final analysis, the host nation will primarily be the enforcer of laws applicable to persons (military or civilian) within its territorial boundaries. Status of Forces Agreements, memoranda of understanding, or Treaties would be the other means by which U.S. Military Police would be granted authority to enforce host nation laws over the local civilian populace (e.g., Vietnam and Panama). To ultimately determine Military Police authority, each case must be analyzed individually.
OPERATION JUST CAUSE
Operation JUST CAUSE, U.S. incursion into Panama, revealed how well Military Police could function in this kind of a low intensity conflict. (See enclosure 4). Part of the overall objective in Operation JUST CAUSE was to neutralize General Manual Noriega's national police force. As Noriega's "police" were neutralized by U.S. forces, U.S. Military Police began to perform law and order missions because there were no local police to do the jobs. Ultimately, U.S. Military Police began to train the new Panamanian National Police who took over police tasks; and later the U.S. Military Police returned to the U.S.
The role of U.S. Military Police in Panama is a perfect example of the "intensity" of the conflict in the low intensity conflict influencing the legal authority of Military Police to enforce laws. First, the MPs were combat troops; then they as police helped to stabilize the country (anti-looting, traffic control, EPW missions); then they helped to establish and train a new host country police force; then they withdrew. Civil Affairs personnel also helped to stabilize the situation.
The applicable law in Panama--first, U.S. law, the law of war, and the U.C.M.J.; then the addition of local Panamanian law in conjunction with U.S. law and the law of war; lastly, Panamanian law and international agreement between Panama and the U.S. (Note: information presented regarding the training of the Panamanian police and the employment of civil affairs personnel was per telephone conversations with Colonel Larry Brede, Commander 16th MP Brigade, Lt. Colonel David Patton, Provost Marshal, Fort Bragg, and LTC Mike Peters, Commander, 96th Civil Affairs Battalion, on April 9, 1990).
As "peace" breaks out all over the world, or so it seems, there are many political "hot spots" for low intensity conflicts to occur--Central America, Middle East, Europe; and there are many ways in which the LIC can occur--insurgency, terrorism, etc.
Terrorist situations and U.S. response outside the U.S. can present interesting legal situations. For example, if we are retaliating for a terrorist act, the principles relating to "self-defense" and the law of war are applicable. (See enclosure 2). If U.S. Military Police are involved in combating terrorism outside the U.S., the State Department has the primary responsibility for dealing with terrorists involving Americans abroad; but the host governments, in accordance with the status of Forces Agreements or Memoranda of Understanding, have primary responsibility for managing terrorist incidents. AR 525-13, para 5-2, 4 January 1988.
In CONUS installation commanders have the primary responsibility for the maintenance of law and order on military installations, and the FBI has primary law enforcement responsibility for terrorist incidents (AR 525-13, para 5-1, 4 January 1988).
Thus, our response to terrorism can be with a "military" emphasis or a "law enforcement" emphasis, depending on the situation; and as the game changes, so do the "rules" or laws.
The "drug war" has presented some interesting legal considerations for use of armed forces, including Military Police, abroad. One could just see the trend for the Military to act as an international policeman develop by reading the newspapers' headlines: "Pentagon given drug-war role", The Phoenix Gazette, September 18, 1989; "Military law enforcement outside U.S. is backed", The Arizona Republic, December .l7, 1989; "South Americans, U.S. ready to OK using military-in-drug war", The Arizona Republic, January 15, 1990; "Military Role still potent in Bush plan", The Arizona Republic (compiled from reports by Newsday, The Boston Globe and The Associated Press, January 28, 1990; "Planes, ships here will join fight on drugs", San Diego Tribune, March 9, 1990; "Pentagon plans to intensify war on drugs with balloons, ships", The Arizona Republic, March 10, 1990.
But along with this new mission for the military came some new legal issues. For example, U.S, law prohibited the use of funds to: "... provide training or advice, or provide any financial support, for police, prisons, or other law enforcement forces for any foreign government or any program of internal intelligence or surveillance on behalf of any foreign government within the Unites States or abroad ..." Sec. 660, Foreign Assistance Act, 22 U.S.C. 2420 (1961).
In order to support the military's role to help fight the "drug war", Congress passed the International Narcotics Control Act of 1989, 22 USC 2151 et seq.
The legislation's purpose is to assist Bolivia, Columbia, and Peru in controlling illicit narcotics production and trafficking. 22 USC 2291.
Law enforcement training to units or agencies to combat narcotics is authorized notwithstanding section 660 of the Foreign Assistance Act of 1961.
Thus, where there were restrictions before, there are now new missions for the U.S. military, including Military Police.
Even in the area of search and seizure there has been a new development which affects the authority of Military Police to search and seize property of a nonresident alien and located in a foreign country. The U.S. Supreme Court held that the Fourth Amendment to the U.S. Constitution does not apply. United States v. Rene Martin Verdugo-Uricruidez, 46 CrL 2136 (decided February 28, 1990).
The Court said inter alia:
"...The United States frequently employs armed forces outside this country--over 200 times in our history--for the protection of American citizens or national security... Application of the Fourth Amendment to these circumstance could. significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest..." 46 CrL at 2140.
The court also said: .
"...American interests may arise half way around the globe, situations which in the view of the-political branches of our government require an American response with armed -force. If there are to be restrictions on search and seizure which occur incident to such American action, they must be imposed by political branches through diplomatic understanding, treaty, or legislation..." 46 CrL at 2141.
Combined exercises of special operations forces who train extensively for their wartime missions with host country armed forces overseas highlight the problems regarding jurisdictional status over U.S. forces in a host country. Jurisdictional means the power of a court to try a case; and a peacetime arrangement may exist between the U.S. and host country that established this jurisdictional status. If no such agreement exists, then the judge advocate must secure one. After determining the negotiating authority for the Unified Command, the judge advocate must request though command channels that this authority conclude an agreement setting forth the jurisdictional status of U.S. forces with the host county. DA Pam 27-50-200, at 9 (August 1989).
A type of diplomatic immunity should be sought, but if the host country does not consent to complete civil and criminal immunity, the judge advocate or negotiating official should attempt to obtain a foreign criminal jurisdiction arrangement similar to that contained in the NATO SOFA. See generally Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Forces, June 19, 1951 , Art. VII, U.S.T. 1792; T.I.A.S. 2846; 199 U.N.T.S. 67.
Once the laws and rules are established as to which courts have jurisdiction and over whom, the U.S. Military Police can enforce the laws whether in a training exercise or a low intensity conflict.
Another area of controversy which could involve Military Police questions in a low intensity conflict relates to assassination. Executive Order 12,333 states that "[n)o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in assassination." See Exec. Order No. 12,333, 2.11, 3.C.F.R. 200, 213 (1982), reprinted in 50 U.S.C. app 3401 at 44, 50 (1982). Department of Army guidance does not prohibit an attack on individual soldiers or of the enemy wherever they may be located. DA Pam 27-50-200, at 8 (August.1989).
There have been reports in the media that the present U.S. administration wants to ease restrictions on assassinations.
"Washington--the Bush administration said Tuesday it is seeking an understanding with congress to ease restrictions on American involvement in foreign coups that might result in the death of a country leader.
White House spokesman Marlin Fitzwater said the proposed changes would not alter a longstanding executive order banning U.S. involvement in assassinations but-would allow the CIA to have contact with plotters of a coup in which a foreign leader might be killed...
The issue took on new urgency in the wake of a failed coup attempt against Panamanian ruler Manuel Antonio Noriega on Oct 3.
Administration officials complained that CIA officers were essentially prevented from advising the plotters because of the possibility that Noriega might be killed..." "Bush wants to ease restrictions on U.S. role in foreign coups." The Arizona Republic, October 18, 1989.
Unless there is a change in the law, Military Police operations are to be governed by Executive Order 12,333 prohibiting assassinations.
The Army will probably be involved in low intensity conflicts in the future. The justification for involvement in low intensity conflicts will vary, but usually it will relate to "self-defense" in the broadest meaning of the term.
Military Police have special training and special missions which make them ideal units to engage in the low intensity conflicts. Their authority to enforce laws over U.S. and foreign personnel, military and civilian, will depend on many variables: U.S. laws including the UCMJ, Treaties, SOFAs, other international agreements, laws of the host nation, the law of war, and the intensity of the low intensity conflict.
Restrictions on Military Police operations and ability to perform their law and order mission will stem from the aforementioned laws and combat conditions of the low intensity conflict.
Since the U.S. holds itself out to have respect for the law, it should comply with international principles of law to maintain its image of respect for law and order among the international community.
LOW INTENSITY CONFLICT
The Army of the future will probably be called upon to operate in low intensity conflicts which affect U.S. security or economic interests or those interests of our allies or others who request our assistance.
In the "final draft" dated January 1990 of the Doctrine for Joint Operations in Low Intensity Conflict, "low intensity conflict" is defined as:
"Political-military confrontation between contending states or groups below conventional war and above the routine, peaceful competition among states. It frequently involves protracted struggles of competing principles and ideologies. Low intensity conflict ranges from subversion to the use of armed force. It is waged by a combination of means employing political, economic, informational, and military instruments. Low intensity conflicts are often centralized, generally in the Third World, but contain regional and global security implications. Also called LIC." JCS Pub 3-07.
It is clear that the definition of "low intensity conflict" is quite broad and covers military actions of the U.S. such as Vietnam, Grenada, and Panama. It also probably covers the various wartime missions of U.S. special operations forces which include: foreign internal defense, unconventional warfare, strategic and tactical reconnaissance, strike operations; strategic and tactical psychological operations; civil affairs support of general-purpose forces; civil administration, and special light infantry. DA Pam 27-50-200, at 5, August 1989.
Because "civil affairs" and "civil administration" and implicitly "government" or "nation-rebuilding" are part of the mission, specially trained military-police should be plugged into the equation. In fact, the peacetime missions of special operations forces include: assisting foreign governments or other elements of the U.S. government; training, advising, and supporting foreign military and paramilitary forces through security assistance programs; supporting foreign internal defense operations; terrorism counteraction; conducting show of force operations; and conducting humanitarian operations. DA Pam 2750-200, at 5, August 1989. U.S. Military Police are tailor-made for the aforementioned missions.
The U.S. Army is well aware of the need to be prepared to act in low intensity conflict situations.
"International drug trafficking, terrorism, insurgency, and subversion of legitimate democratic regions will continue to pose serious threats to U.S. interests. These low intensity conflicts can undermine important allies and other friendly nations, impede the development of democratic institutions, and hamper essential U.S. economic and military ties. The dangers of low intensity conflict and particularly of terrorism, are magnified by the increasing worldwide availability of sophisticated explosives and weapons. Precision-guided munitions are becoming available through illegal arms markets and from states supporting international terrorist organizations. Terrorist use of the ultimate weapons of mass destruction--chemical, biological, and nuclear arms--is not inconceivable. Clearly, low intensity conflict is the security challenge most likely to demand a short-notice U.S. military response in the future." The United States Army Posture Statement FY 91 at I-6 to I-7.
"Low intensity conflict" describes an "environment" rather than a military capability or mission. The environment has four categories: insurgency/counterinsurgency, combating terrorism, peacekeeping, peacetime contingencies. JCS Pub 3-07. para 1-1.
The law relating to Military Police operations will depend on the environment, the intensity of the environment, and the legal/political relationship the U.S. has with the host country.
JUSTIFICATION FOR INTERVENTION IN LOW INTENSITY CONFLICTS
Justification for the U.S. to send troops into a low intensity conflict will vary with U.S. interests and the situation. For example, if American lives and property are
threatened in another country, the U.S. is justified in sending in troops (using force) under the principles of an inherent right of self-defense.
The use of force is also governed in international law by the U.N. Charter, which in article 2(4) obligates all members "to refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state." Use of force is allowed in certain circumstances. Article 51, United Nations Charter says that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
The definition of "armed attack" has been the subject of much debate by governments and scholars, but State-sponsored terrorism and other methods by which states can act through surrogates enables States to bring about attacks on their enemies while at the same time attempting to evade responsibility and legitimate retaliation. Terrorists do not always attack their victims in the victims' homeland thereby triggering the literal "armed attack... against a member of the United Nations" language.
In 1986, the International Court of Justice decided that Nicaragua had ,not engaged in "aggression" although the court either found or assumed that Nicaragua had supplied arms to the rebels in E1 Salvador for several years. The court found that a limited intervention of this sort cannot justify resort to self defense because customary law only allows the use of force in self-defense against an "armed attack", and an armed attack does not include "assistance to rebels in the form of the provision of weapons or logistical or other support." Military and paramilitary activities in and against Nicaragua, 1986 I.C.J. 14 (Judgement on the Merits of June 27, 1986) [hereinafter Nicaragua v. United States].
The I.C.J. left an opening for a state to respond to aggression short of an "armed attack". A state is not permitted to resort to "self-defense" against aggression short of armed attack, but it may be able to take what the court called "proportionate countermeasures". Nicaragua v. United States, 1986 I.C.J. at 127.
One scholar in international law advocates that a sound construction of article 51 of the U.N. Charter would allow any State, once a terrorist "attack occurs" or is about to occur, to use force against those responsible for the attack in order to prevent the attack or to deter further attacks unless reasonable ground exists to believe that no further attack will be undertaken." DA Pam 27-100-126, Vol. 126, at 95 (Fall 1989). The notion that self defense relates only to a use of force that materially threatens a state's "territorial integrity or political independence", as proscribed in article 2(4), ignores the Charter's preservation of the "inherent" aspect and scope of that right. Nations, including the U.S., have traditionally defended their military personnel, citizens, commerce, and property from attacks even though no threat existed to their territory or independence
When an American is attacked simply because he is an American in order to punish the U.S. or to coerce the U.S. into accepting a political position, the attack may be one in which the U.S. has sufficient interest to justify extending its protection through necessary and proportionate actions. No nation should be limited to using force to protect its citizens from attacks based on their citizenship to only situations in which they are within its national boundaries. DA Pam 27-100-126, Vol. 126, at 96 (Fall 1989).
The aforementioned international legal issues relate to the justification for U.S. intervention into a low intensity conflict situation. Depending on the circumstances, the U.S. would be justified in engaging in a LIC situation for its own "self-defense"; for the defense of an allied nation; for the defense of a nation who requested our assistance (e.g., Grenada); to honor a treaty (e.g., Vietnam), or other international agreement; to rescue hostages (e.g.,.Iran); to help stabilize or rebuild a government (e.g., Panama); to assist in disaster relief operations (e.g., Virgin Islands); or to neutralize drug trafficking (e.g., Latin America).
MILITARY POLICE CAPABILITIES IDEAL FOR LIC
Military Police provide a wide range of support to contribute to the Army's battlefield success: they combat enemy forces in a rear area; they expedite the forward movement of critical combat resources; they evacuate enemy prisoners of war (EPWs); they provide security to critical army facilities and resources; and they provide commanders and soldiers with police services as needed. FM 19-3, at 1-1 (December 1983). .
On the battlefield, Military Police operate as a flexible, economy-of-force organization; and they perform a wide range of support keyed to the commander's priorities. Organized in small tactical elements, they are equipped and trained to operate separately or in combination. MP three-man gun-jeep teams with their mobility, radio, communications, and M60 machine-gun fire power, are versatile units. They can respond quickly to emergencies. These same small teams, using their initiative and their ability to assemble quickly into larger units, can generate significant combat power for the tactical commander. FM 19-3, at 1-1 (December 1983).
With minor modifications of organization and equipment (e.g., the addition of wheeled armored vehicles and some anti-armor weapons) .Military Police can be the perfect type of combat unit for many low intensity conflicts.
With minor MP doctrine modification (which is presently primarily geared to the "Airland Battle" syndrome, the doctrine can easily be reoriented to LIC doctrine to have the Military Police units fight as infantry as they did frequently in Vietnam. The Military Police can perform their combat mission, but they also have their other capabilities (e.g., law enforcement, force protection, crowd and traffic control, etc.) for which they have been specifically trained:
Military Police missions--battlefield circulation control (helping to move military traffic along main supply routes expeditiously); area security (protecting designated facilities, units, convoys, MSR critical points, and personnel from enemy activity); enemy prisoner of war operations (controlling the flow of EPWs from their capture to their internment in POW camps; and law and order operations (providing police services such as investigating crimes, performing law enforcement operations, and confining U.S. military prisoners)--are tailor-made missions for the Army of the future involved in low intensity conflicts and nation rebuilding [See generally, FM 19-4, at 1-4, (May 1984)].
The Military Police law enforcement mission can be very important in the nation rebuilding phase of LIC. They can investigate criminal activity of military personnel; and depending on the circumstances and the legal relationship between U.S. Forces and the host country; MPs can deal with the local civilian populace. Military Police are especially trained to investigate crimes, to interview suspects, to apprehend (arrest), search and seize items of evidence for prosecution. (See generally FM 19-20, Law Enforcement Investigations, November 1985). They are trained to detect "black marketing" and to investigate war crimes. Military police have this special training valuable to LIC operations (e.g., Panama) which other branches of the Army simply do not have.
The U.S. armed forces in Panama temporarily performed "police" functions or aided host country police. "Vice President Ricardo Arias Calderon, who is also the justice minister, said 333 people were arrested during the sweep, which was launched at dawn. Arias said suspected drug dealers, illegal aliens and fugitives were taken to Federal Judicial Police headquarters, which was surrounded by U.S. armored cars. William Ormsbee, a spokesman for the U.S. Southern Command, said about 260 American soldiers were deployed in support of the Panamanian police. About 400 Panamanian law enforcement officers took part in the operations....The new administration of President Guillermo Endara has been shying away from establishing a military organization but has been slowly building a police force..." San Diego Tribune, March 9, 1990, at A-1. Military Police are the best ones to perform the missions described in the previous newspaper article.
Military Police deployed to Panama also performed in an outstanding manner in their "combat" role,. In a letter dated February 12, 1990, from the Provost Marshal of the 82nd Airborne Division to the Commander of the U.S. Army Military-Police Operations Agency, the PM commented on how well the Military Police performed their combat duties:
"... PANAMA VIEJO was a hot LZ and the military police fought to the objective alongside their infantry comrades. Once the fighting subsided and mass surrenders began, the MPs took charge of enemy prisoners of war and established security of captured arms and ammunition. As local security was established, the MPs assisted in manning roadblocks and checkpoints set up around each objective."
He further commented:
"While First Platoon was supporting brigade operations, the Second and Fourth Platoons began general support operations at the TORRIJOS-TOCUMEN Airfield complex. Fourth Platoon (the normal GS platoon) established the Division Central EPW Collecting Point and provided security for almost 400 displaced civilians who were caught in the international terminal during the airborne assault. Second Platoon assisted Fourth Platoon, while also providing direct support to the lst Battalion, 75th Ranger Regiment in the defense of the airport. Additionally, they participated in raids on suspected arms caches, counter-looting operations in nearby villages, and established a major checkpoint on the main supply route outside the airfield."
Commenting about a Military Police squad attached to one of 7th Infantry Division's battalions, the PM said:
"This squad participated in air assaults into two objectives-a Panama Defense Force training center and the E1 Renacer Prison. Additionally, they helped secure the Madden Dam, which controls the water level in all the locks on the Panama Canal. They also performed roadblocks and checkpoints, EPW processing, and various security missions. However, one mission at E1 Renacer Prisoner was unique. Because of their heavy firepower, a MP team was integrated into the assault element and used to clear rooms in the prison complex. This mission differed from the standard usage of MP's (sic) in the support element providing exterior security and preparing to assume control of any EPW."
The Provost Marshal also said that when the Military Police were supporting the clearing and stability operations in the city, they (MPs) helped clear the city, performed circulation control as civilian traffic begin to return to city streets, and served as law and order elements in the Division area of operations. The infantry brigades were ultimately relieved by combined 16 MP Brigade/Panamanian Police Force patrols, and the Division redeployed back to the U.S.
Operation JUST CAUSE is a recent and excellent example of how Military Police can perform in a low intensity conflict.
The Virgin Islands situation provided another relatively recent example of Military Police stabilizing a government. Although this action was on U.S. soil, U.S. troops could be deployed to a foreign country to help stabilize that government. A couple paragraphs reported in the Washington-Times-sums up the Military Police performance:
"In the Virgin Islands, however, it was another matter. The government there dithered for several days while the territory descended into anarchy, and there were persistent reports that his own police and National Guard were among the looters. With civilian control non-existent, the president decreed that once again, it was time to send in the cavalry. Until recently, it would have indeed been the cavalry--that is, combat forces pressed into riot-control duty. But this time the Army sent in more than 1,000 combat support men and women especially organized, trained and equipped for such duty..."
The article then listed all the various Military Police units deployed to the Virgin Islands and concluded:
"These professionals (Military Police) soon had the situation well in hand..."
"Today's cavalry to the rescue," by Harry Summers, Washington Times, at F-4, September 28, 1989.
Military police have a vital role in combating terrorism. The U.S. has numerous military installations outside the continental U.S., and it is the installation commander's responsibility to take appropriate measures to protect his installation--its facilities, equipment, and people. Crisis management teams, special reaction teams, hostage negotiation, investigation--these .are all activities which military police may be involved in to combat terrorism. (See generally, AR 525-13, 4 January 1988; AR 190-58, 22 March 1989; FM 100-37, July 1987; TC 19-16, April 1983).
This article (essay)
was written in October 1995, and one can see its relevance to what is going on in
Kosovo today. Barbarians can manifest themselves in many ways. Genocide or
"ethnic cleansing" can never be accepted by any peoples or government who claim
to possess humanity or who seek justice. A reading of this article will elucidate the
issues relating to who are "barbarians", the justification of NATO action, the
need for an international criminal court, and why the United States must take a positive
and forceful leadership role in Kosovo and deal extremely harshly with the Serbs.
It is ironic and hypocritical that many persons in the United States have no qualms about blowing the hell out of Iraqi citizens, or conducting a full-fledged military operation to "arrest" a leader of Panama, or condone the torture, murder, and thefts of property of Palestinians, or make threatening statements against the Chinese for "human rights" violations or for receiving technological information--but these same persons dont want to stop white, European Serbians from raping women, taking children from their families, and executing the men solely because they are Albanian and Muslim.
This essay deals with the strong cultural influences which have caused wars and suggests that mankind has the capacity to avoid wars if he only tries to understand his spiritual side.
THE CENTER FOR INTERNATIONAL DEVELOPMENT AND CONFLICT MANAGEMENT
THE UNIVERSITY OF MARYLAND AT COLLEGE PARK
COLLEGE PARK, MARYLAND (U.S.A.)
JOSEPH E. ABODEELY
ATTORNEY AT LAW
Research and Discussion Paper Submitted
The Fourth International Dialogue on the
Transition to a Global Society:
DIVISIVE BARBARITY OR GLOBAL CIVILIZATION?
The Ethical Dimensions of Science, Art, Religion, and Politics
Mankind has a violent side to his nature. Over the millennia, he has lived with the animals, hunted them to eat and for sport; and he has engaged in tribal, ethnic, religious, nation-state and guerrilla warfare; terrorism; and he has used his own domestic law enforcement forces to commit violence against his fellow man under the guise of "fighting crime".
Mankind also has a spiritual aspect to his being. From the dawn of his existence, through recorded history, to the present, man has attempted to understand from whence he came, why he was here, and where was he going. He has worshiped nature, his gods, and God, as he perceived them; and he has learned to influence nature to such an extent that mankind's very existence has been threatened.
Mankind has the technology and the power to destroy the world if he were so inclined, or he can accomplish a unity of purpose for peoples to live harmoniously around the globe, if he were so inclined.
Part of the quest for a global civilization is the recognition that there must be "collective security" against divisive barbarity to identify and suppress the "barbarians" who would threaten the human harmony.
John Keegan, who for many years was the senior lecturer in military history at the Royal Military Academy, Sandhurst, has concluded that there is no simple definition of war and that man is not doomed to make war. (11:386)
Keegan notes that primitive warfare differed greatly from modern warfare with its "extreme" form. (11:387) Primitive warfare was ritualistic and did not often involve the loss of many lives of the participants. Modern warfare is devastating.
During the Tet Offensive of 1968, I was a combat platoon leader in what was then South Vietnam. I witnessed, firsthand, the destruction of buildings and villages; I saw the agony of the wounded and the despair of displaced mothers and daughters and old men; I saw human brains and the charred, maggot-infested corpses of dead combatants; I smelled the sweet stench of napalmed enemy soldiers lying in the brush; I saw the terror in the eyes of young men who were made soldiers by the politics and cultural values of their society -- I experienced war. It is hell!
Keegan's main point in his brilliant work, A History of Warfare, is that culture is the prime determinant of the nature of warfare. Horse warfare, fixed defense warfare, use of the bow and chariot, Greek and Roman infantry warfare, holy warfare, and technological warfare -- all are determined by the cultures of the time. (11: 387 - 391)
Western warfare (to be distinguished from the ancient Greeks, Romans, Chinese, Huns, and Mamelukes) is technologically sophisticated and terrifyingly destructive. Modern weapons of war include automatic weapons (machine guns of all kinds); tanks with computerized firing capabilities (which means first round hits of targets almost all the time); aircraft that can fly at night or in bad weather and drop bombs or missiles which are laser guided and can kill with pinpoint accuracy; submarines which carry nuclear missiles which can destroy cities; satellites which can locate a person's position on the ground (all the more so opposing armies); cruise missiles that once launched are programmed to seek a target and destroy it with a nuclear warhead if necessary; computerized firing of artillery with various types of ammunition designed to kill enemy infantry or armor; and numerous other toys of devastation.
Greenpeace, the environmental protection organization conducted interviews with international relief workers, reporters, U.S. Officials, and news reporters about the overall effect of the U.S. air raids in the Persian Gulf War. Greenpeace's report said that over 150,000 people died as a result of the war with Iraq, and at least 5 million lost their homes or jobs. (8:A10)
The majority of the bombing casualties were caused by "dumb" bombs and by the 12 million to 16 million bomblets released by an estimated 60,000 to 80,000 cluster bombs dropped by allied planes. (8:A10)
As much as the U.S. media (which was fed its information by the military) portrayed the "smart bombs" striking targets, the truth is that the majority of the munitions hurled on Iraq and Kuwait were "dumb" bombs. Allied jets dropped 88,500 tons of bombs on Iraq and Kuwait, but about 70% of them missed their targets. The precision-guided bombs, the icon of Pentagon briefings and the military's preferred image of the war, made up barely 7 percent of the U.S. tonnage dropped on Iraqi targets, said General McPeak, Air Force Chief of Staff. (4:A2)
The media led us to believe that we were getting on-the-the-spot, accurate reporting of the Gulf War. CNN bombarded the world with news coverage instantly; we saw the briefers tell us of the trucks, personnel carriers, and tanks killed, but no "body count" was mentioned. This made the war more humane, more antiseptic; but the truth is that the Iraqi people (not Saddam Hussein) were severely punished, devastated, and decimated by the Coalition Forces in Operation Dessert Storm. The United States tried out all of its new war toys, and they worked splendidly. And the media fed us what the military wanted us to hear. Hurrah for freedom of the press! Hurrah for man's humanity toward Iraq. And the media misled us.
When one considers that much of the air campaign was conducted against one populated city, Baghdad, it is not difficult to visualize the awesome destruction which befell that city and its populace. Our political, military, and value systems condoned this.
American culture determined that America and its allies would go to war with Saddam Hussein and the Iraqi people, and American culture determined how that war was fought -- if one is to accept Keegan's view of warfare; but he also says that man is not doomed to make war.
Scholars and skeptics may argue that human nature cannot be changed -- that mankind is greedy, arrogant, competitive, selfish, ambitious, violent, destructive, and any other negative adjective one may conceive.
Others believe that mankind has a spiritual aspect.
J. Tyson, a Baha'i, has written:
Tyson believed that past societies have overcome negative institutions which were supposedly a "part of man's nature", and he cited slavery as an example. (14:30)
He concluded that:
Mankind does have a spirit, but the secret is to recognize that fact and to cause that spiritual side of man to take precedence over his materialistic side.
Suheil Bushrui, in his Inaugural Lecture, "Retrieving Our Spiritual Heritage, A Challenge Of Our Time", said:
Accepting the fact that mankind has this spiritual side, why should we care? In other words, what can the spiritual side of man do to solve the everyday practical, real-world problems confronting the human race around the globe?
An answer to these questions may be found in "The Promise of World Peace", A Statement by The Universal House of Justice:
We are human, and we are humane. Our essence of humanity must take presence over our aggressive tendencies. Human values have been expressed and codified throughout history: "Thou shall not kill"; "Thou shall not steal": "The Right to life, liberty, and the pursuit of happiness", etc.; but man still wages wars (in varying forms and degrees) against his fellow man. The spiritual side of man has not yet well defined and implemented those values which lead toward a global harmony, a global ethic, a global peace; but mankind is working on it because he knows he must.
Mankind has been engaged in "collective security" since he and others first banded together to ward off ferocious beasts or defend against other marauding clans or tribes. His intelligence prompted him to do so.
Consider "collective security" to relate to nation-states, or other internationally politically recognized groups, agreeing to provide for the common defense of each other against a "threat" as prescribed by some body of law which is definable and enforceable.
John Huddleston, in his book, The Search For A Just Society, noted that in the West after the decline of the Holy Roman Empire and the Catholic Church at the time of the Reformation there were many thinkers who mediated in various ways about how institutions might be created to encourage the establishment of peace and universal order. (10:273) Many philosophical works discussed world peace.
Huddleston concluded that from the background of those thinkers and their works the modern age has seen efforts to organize international cooperation on a regular basis in the context of a world federation. (10:273) Nations came together in the spirit of cooperation to establish an organization to promote world peace as a result of World War II.
The Charter of the United Nations was presented to a gathering of the representatives of all the Allied nations of World War II assembled in San Francisco in April 1945. It was signed by representative of 51 nations on June 26 and became effective on October 24, 1945. (10:330)
One of the purposes of the United Nations as spelled out in Article 1 of the Charter is:
It was clearly understood that each member nation had the right to
individual or collective security or self defense against
The United Nations Charter specifies taking " ... effective collective measures for the preservation and removal of threats to the peace ..." In other words -- collective security.
The Security Council of the United Nations has five permanent members who were the great powers on the Allied side in World War II (USA, USSR, UK, France, and China). There are also seats for temporary members who are elected by the General Assembly giving due regard to equitable geographical distribution. (10:331)
Each member of the Council has one vote and decisions on procedural matters are made by an affirmative vote of nine members, but the nine must also include the concurring vote of the permanent members. In effect, this procedure gives veto power to each of the permanent members. (10:333)
The Council's job is to maintain peace and security throughout the world. It has the power to investigate any dispute between nations to see if there is a danger to international peace and security, and to make recommendations for provisional arrangements to prevent the situation from being further aggravated. If the parties involved fail to respond, the Security Council may call on all member States of the United Nations to apply sanctions, including: complete or partial interruptions of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication and the severance of diplomatic relations. Military action could be taken, if necessary, including: demonstrations, blockades, and other operations by air, sea, and land. (10:333).
To conduct military operations, the Security Council planned to make agreements with member countries as to the types, quantities, locations, etc., of the armed forces to be provided. The Security Council would be advised on military affairs by a Military Staff Committee consisting of the Chiefs of Staff of the permanent members of the Council. The Council can vote on elections and expulsions of members of the United Nations and on the appointment of the Secretary-General. (10:333)
One might inquire how effective has the Security Council been?
Since 1945, there have been over sixty major wars and main incidents involving the use of large-scale armed force by one country in another state. This does not include the smaller urban and rural guerrilla campaigns or the vast majority of military coups which have been common all over the globe. (1:302)
If the United Nations' goal to maintain international peace and security is clear, and if the operational procedures of the Security Council to do their job to maintain peace and security around the world are clear, why all the armed conflicts? More importantly, how do we stop the armed conflicts? How do we stop the barbarians from destroying civilization?
THE GOAL: WORLD PEACE THROUGH ENFORCEABLE LAW
The United Nations goal to maintain peace and security is thwarted by the fact that it takes generations to create binding "customary law", and it usually takes many years to negotiate treaties or international conventions related to peace and still many more years until they are ratified by member nations. Prior to ratification, the terms of the treaties or conventions may be drastically watered down; and after ratification, the treaties or conventions may be repudiated whenever nation-states believe their own vital interests require so.
Benjamin Ferencz, in his book, New Legal Foundations for Global Survival: Security Through the Security Council, describes part of the problem:
Ferencz recognizes that it is futile to try to discard or replace the entire present UN system, and he proposes that:
Ferencz believes that it is unnecessary to depend on new treaties or conventions to enhance the effectiveness of the United Nations as an enforcement arm of the world community, and he points out that the Security Council has, by resolution, articulated the law and then mandated the Secretary-General to create a number of new organs to help secure the peace in Iraq, Yugoslavia, Somalia, and elsewhere. (6:245)
Ferencz proposes that the Security Council adopt twelve new resolutions to reinforce the laws, courts, and enforcement mechanisms on which world security depends to strengthen its ability to maintain peace and security:
The Council, in order to discharge its security obligations, must reinforce its inadequate legal system by new clarifying resolutions having the force of law. Five proposed resolutions are -- (1) to mandate peaceful settlement and non-use of force; (2) to redefine aggression without loopholes; (3) to define and prohibit crimes against humanity; (4) to end the arms race while enhancing national security; (5) to draft a Charter for enhancing Social Justice so that human beings everywhere may live in peace and dignity. (6:245-246)
The Council must reinforce the present, inadequate, international judicial system. Proposed resolutions to achieve this goal are: (1) The International Court of Justice must be strengthened; (2) an International Criminal Court must be created; (3) a World Tribunal for Social Justice must be started. (6:246)
The Council must create new structures or procedures to implement the new resolutions for peace. Four new organs of enforcement are proposed by Ferencz: (1) a UN disarmament Enforcement Agency; (2) a UN Sanctions Agency; (3) a UN Police Agency; and (4) a UN Social Justice Agency. (6: 246)
Ferencz believes that by combining the five Security Council resolutions which better define the international law of peace, adding three resolutions to bolster the judicial system, and then supplementing these resolutions with four more to create structures (or organs) for enforcement, " ... a comprehensive new regime can be created to curtail the current international anarchy ... " (6:246) He also believes that if an omnibus resolution encompassing all twelve new resolutions were adopted by the United Nations, a new path to peace may be found. He proposes to have the Security Council, not the General Assembly, act on the matter to facilitate the process.
I believe that the Security Council has been inept in preventing the numerous wars and armed conflicts since World War II primarily because the two superpowers, the US and USSR, each had their own ideological agendas which often involved guerrilla warfare, insurgency, counterinsurgency, coups, communist expansion, communist prevention, and puppet regime building. Hence, regions of armed conflict frequently involved surrogates of the two super powers acting as agents to promote the superpowers' goals.
Other nations who exported terrorism as a tactic to accomplish their goals have also thwarted the efforts of the Security Council since there has been no universal definition of "terrorism".
Although Ferencz' views and proposals are probably not the panacea to the ravages of warfare, they have much merit and should be wisely considered.
SPIRITUALITY AND PRAGMATISM
It serves no valid purpose to merely philosophize about world peace and man's lofty spiritual values unless we define those values, codify them, educate people about them, and enforce them.
Ferencz' proposed resolutions to mandate peaceful settlement of disputes without use of force, to redefine aggression and crimes against humanity, to end the arms race, and to draft a Charter for Enhancing Social Justice -- all relate to defining and codifying man's spiritual values (e g., freedom, human rights, justice, tolerance, respect for the dignity of all mankind, etc.).
We have had summits or conferences on human rights, the environment, the rights of women, etc., and we have seen alliances of nation-states for security or economic reasons; but until we internationally codify those values which all mankind cherishes, and until we enforce those values, discussions about world peace are tantamount to speculation about how many angels can dance on the head of a pin.
One of man's values is to stop aggression. We saw the United States take the initiative, rally other nations in the world, and lead a coalition of forces to suppress Iraqi armed forces. The United Nations Security Council authorized the use of force to expel Iraq from Kuwait. (13:A12)
We now see the United Nations taking a more active role in the war among the Bosnians, Croatians, and Serbians. Although peace talks have been in process, the war still continues.
The world was shocked to see some of the atrocities the Serbs committed on the Bosnians -- murders, rapes, tortures, concentration camps with inhumane treatment.
But out of a "holocaust" in Bosnia may come the "trial of the century" -- the war crimes trial of Dusko Tadic, a Bosnian Serb. He is accused of committing war crimes and crimes against humanity relating to 13 deaths, a rape, and several torture incidents in Bosnia and Herzegovina in May through August 1992. Among his gruesome alleged exploits - he forced one prisoner to bite off the testicle of another, who subsequently died. Most of his alleged crimes stem from actions at the Omarska concentration camp where he was a camp visitor to participate in or direct sadistic treatment of the prisoners. (9:4)
Also indicted are Bosnia Serb leader Radovan Karadzic and his army commander, General Ratko Mladic for genocide and crimes against humanity.
We learned from World War II how vile the Nazis were, yet Hitler was not the most despicable character in modern history. Although he has received the most media and historical attention as a demonic figure for his killing of Jews and others, the Khimer Rogue killed as many or more in the "killing fields" of Cambodia. The Japanese and Chinese have been ruthless in the senseless murders of their people, and Joseph Stalin killed tens of millions of his own innocent people. Stalin simply did not receive the "bad press" Hitler did because Russia was our ally in World War II.
We also learned from the Nuremberg War Crimes trials that international villains can be held accountable under established principles of international law for crimes against humanity and war crimes. The war crimes trials of the Serbs will show the world that atrocities against humanity will not be tolerated by the civilized world.
Tadic's trial is significant because it gives the world a chance to redeem and assert the international rule of law. (9:4)
Thus, Ferencz' goal to have an international criminal court established to try war crimes is in process.
Regarding Ferencz' "UN Police Agency" -- both in the Persian Gulf War and in the present Bosnian, Croatian, Serbian war -- there has been a "collective security" force of nations dedicated to stop the barbarism. Although there is no formalized "police force" of the UN, when they choose to take military action, the participating nations become an ad hoc "UN Police Agency".
Ferencz advocates more, but Desert Storm and Bosnia are a step toward that "UN Police Agency".
The Army Times has reported that troops from a dozen former Soviet Bloc nations joined British, Canadian, and American soldiers at Fort Polk, Louisiana in late August 1995 to train for humanitarian missions and peacekeeping chores. The exercise was intended to improve the ability of NATO troops and soldiers in the former Soviet nations to work with other nations in NATO, which they hope to join. (5:29)
This illustrates the world's armies (some are old enemies) working together to train for "humanitarian missions". It was man's ability to use his intelligence and to engage in cooperative efforts with other men which allowed him to ward off the beasts and to fight aggressing clans or tribes. Mankind should continue to work cooperatively toward worthwhile goals such as peace.
The U.S. Army has recognized that its military operations must include operations other than war. OOTW (operations other than war) include: nation assistance, support to counterdrug operations, combatting terrorism, peacekeeping operations, peace enforcement, show of force, support for insurgencies and counterinsurgencies, and attacks and raids. (7:13-6 to 13-8)
In the future, warmaking, or peacekeeping, will be even more challenging to the UN soldier.
In an article for the Reserve Officers Association of the United States, "Peace Keeping And The New International Environment", the authors state:
Thus, war making, now frequently called peace keeping, has acquired a humanitarian aspect in its operational procedures. Perhaps this is an omen.
There must be candid, hard hitting, no-holds barred discussions about the causes of conflict: power grabbing, territorial acquisition, greed, familial feuds, revenge, ethnic hatreds, religious differences, racism, police brutality, etc.
All the issues must be put on the table, and the values of man must be further articulated and placed into an international body of law enforceable by an international tribunal and an international police entity.
Man has a spiritual side to his essence, but he has a demon side, also. Warfare has been a part of man's culture since his inception. Only through honest dialogue about the problems of man can he begin to address them peacefully. Once he identifies his threats or problems, and agrees with others how to solve them without violence, he is then on the path to world peace. There needs to be a summit on collective security. America can be a leader in this cause as it has been in so many other difficult matters (e.g., World War II, Korea, Vietnam, Desert Storm, Bosnia, Palestine and Israel).
But America must look honestly at its own difficult issues of racism, police brutality and corruption, poverty, and injustice and try to deal with them so it can have credibility when it talks to the other nation-states about their concerns and how to solve them.
There should be a summit on collective security each year to work toward identifying and defining the values and concerns of mankind and of the member nations. Strong media attention on this summit can help to promote the dialogue. The power of the media is awesome. It educated the public about the horrors of combat during the Vietnam War. It educated the public about the racial polarization of views of the criminal justice system during the O.J. Simpson trial. It awakened the public about police brutality and corruption through the Mark Furman tapes. If the media wants to put a "spin" on a summit for collective security and how "peace is good", the public will care. We should work toward on-going summits for collective security with high media exposure because without dialogue and cooperation, there will be future wars, armed conflicts, police actions, and terrorism.
There are those who do not like the United Nations or the "New World Order", but the alternative to man's unity as a global civilization is divisiveness, destruction, and death. Summits at least promote dialogue; and if one is engaged in dialogue, he is less apt to be engaged in combat. The choices are ours. If we fail to promote discussions, seminars, conventions, conferences, summits, or other educational methods to advocate peace, then we allow for man's darker side to prevail. We then give credence to that famous line of the renowned comic strip philosopher, Pogo:
"We have met the enemy, and he is us"
1. Beckett, Ian, War In Peace, Harmony Book, 1981.
2. Bilbray, James H., and Henk Vos, "Peacekeeping And The New International Environment", The Officer, June 1995, p. 41.
3. Bushrui, Suheil, "Retrieving Our Spiritual Heritage, A Challenge Of Our Time", Center For International Development And Conflict Management, University of Maryland at College Park, 1994.
4. "88,500 Tons of Bombs -- 70% Missed", Arizona Republic, March 16, 1991, p. A2.
5. "Fast Track, Odds and Ends", Army Times, September 11, 1995, p. 29.
6. Ferencz, Benjamin B., New Legal Foundations for Global Survival: Security Through the Security Council, Oceana Publications, Inc., 1994.
7. FM 100-5, Operations, Department of the Army, Washington, GPO, June 1993.
8. "Gulf War Resulted In 150,000 Deaths, Greenpeace Says", Arizona Republic, May 29, 1991, p. A10.
9. Horne, William W., "The Real Trial of the Century", The American Lawyer, September 1995, p. 4.
10. Huddleston, John, The Search For A Just Society, George Ronald, 1989.
11. Keegan, John, A History of Warfare, Vintage Books, 1994.
12. "The Promise of World Peace", A Statement by The Universal House of Justice, Baha'i World Centre, Haifa, 1985.
13. "The U.N. Resolutions Against Iraq," Washington Times, February 22, 1991, p. A 12.
14. Tyson, J., World Peace and World Government, George Ronald, 1986.
IN A HOSTILE ENVIRONMENTby Joseph E. Abodeely
We are all products of the sum total of our life's experiences. I am no exception; therefore, my observations about representing the indigent defendant and the "criminal justice system" in which the "defense" of that defendant occurs is based on my experiences and perceptions.
When I first started practicing law, it was as a Maricopa Deputy County Attorney back in 1971. The Warren Court had opined several cases protecting the "defendant's" rights to neutralize the excesses of police misconduct. Miranda had been decided, and the police were complaining about how their hands were tied to catch criminals.
The judges in superior court, in my view at the time, were receptive to motions to suppress filed by defense counsel. Yes, there used to be active motions practice - motions to suppress confessions, motions to disclose identity of informants, motions to suppress evidence seized as a result of unlawful searches and seizures, etc. There were even motions to dismiss the entire case before the Rules of Criminal Procedure were changed to allow only dismissal of technically defective charges. What is most noteworthy about all of those motions is that they were frequently granted.
It was trial by ambush with neither side having to provide discovery except upon order of the court. Preliminary hearings would last sometimes for days or even weeks because the defense attorneys would ask to review the police reports of the police after they testified, to cross-examine them.
Prosecutors and police (and I was one of them) complained about how the system favored the defendant because the defense could cross-examine prosecution witnesses (including and especially the victim) at the preliminary hearing, and the state never knew what the defendant was going to say at trial unless he made a prior statement to the police. Of course, the state had certain advantages such as free investigation and legal services while a criminal defendant had to hire and pay for his own resources. There were many extremely competent criminal defense attorneys to choose from, but they cost money to hire. If a defendant could not afford an attorney, he was appointed a public defender.
Public defenders often take a "bum rap" from the "unknowing" who say they want to be defended by a "real attorney", but in my opinion, some of the best criminal defense attorneys I witnessed in the system came from the old Public Defender's office. Some of those attorneys are now superior court judges. Often, public defenders, either at the state or federal level, acquire high proficiency because of their vast experience. As a member of the panel for the Federal Public Defender's office, I sometimes rely on the advice or input from the attorneys in that office.
But, back to history. I used to think the judges were liberal, and the system favored the defendant (when I was a prosecutor). I used to be a real hard-charger for the state - I prosecuted the complex, novel, or tough cases (e.g., street crimes, organized crime, wiretaps, government corruption, State Fair case, Jerry Buss case). I used to teach the cops
how to conduct better searches, take better confessions, prepare better cases - all to help swing the pendulum toward the state to make the system fairer for "us" - not fully appreciating who the "us" were. I even developed procedures for the grand jury and supervised its operations and emphasized greater use of it. All to make the system fairer for "us".
Slowly, but surely, the pendulum swung toward the state It swung so far that now there is now an unprecedented overwhelming advantage and bias for the government prosecuting, convicting, and sentencing persons accused of crime.
Look at the movies and the television action shows - they are about "cops". The policeman is the new cultural hero, the good guy to stop all that is bad in our society. Jurors, when they are voir dired, take far more pride in answering the questions relating to their relationships with police rather than their relationships with lawyers. Jurors are voir dired about whether or not they would give greater weight to the testimony of a police officer and of course almost all say "no". That is one of those things they call a legal fiction - you know it, I know it, and the judges know it. Yet they, the judges, voir dire from their form questions in their notebooks, and we all know that the juries are tainted and prejudiced against defendants by virtue of cultural orientation.
Our society equates crime with evil, but the truth of the matter is that our society is highly prejudiced against minorities - Blacks, Hispanics, Orientals, Arabs, Native Americans, the poor. Our society is prejudiced against "criminals" having rights because "everybody knows he is guilty".
The O.J. Simpson trial has now made John Q. Public an expert in the criminal justice system because he knows what is wrong with it. Almost nobody talks about the Furhman tapes - how only two of numerous boasts of beating "niggers" and planting evidence were presented to the jury. Part of the defense was the allegation of planting evidence and racial prejudice, but the issue of the tapes is almost forgotten.
I wonder if we still have a Fourth Amendment anymore. Cops can search the entire car on a traffic stop. It didn't used to be that way. They can make everyone get out of the car. It didn't used to be that way. They can seize a car and deny the spouse the community property interest in it. It didn't used to be that way.
Remember the old "two prong" test to determine whether the evidence seized based on the word of a "confidential, reliable informant" was admissible? Those standards have been watered down. And do not forget what I call the "dumb cop rule" - it really means "Golly, I really do not know anything about the law of search and seizure, but I meant well and had good faith when I searched". You know it as the "good faith exception to the exclusionary rule".
What about confessions? The truth of the matter is that we will never know which confessions are obtained by coercion and which are not. Just watch any regular cop show on T.V. or at the movies and watch them beat the hell out of a "bad guy" to make him talk. Watch the cops make fun of having to read the Miranda rights to a suspect in custody.
How about discovery? As a defense counsel, have you ever had to prod the judge to get the prosecution to disclose what it is supposed to disclose by law? Frequently, maybe?
What is it like defending an indigent client at trial? If he is in custody, it is more difficult because you have to visit him in jail or in those neat little holding rooms if it is a federal case. It is just not the same trying to prepare a defense in that situation rather than if he is free to come to your office.
Evidentiary rulings can kill your defense, but you make the motions with the idea that perhaps the judge will give them the respect they deserve. Some judges are respectful to both the prosecution and defense, and other judges forgot what it was like to try to insure that the client's, AKA defendant's, rights are protected. After all, isn't that what it is supposed to' be all about? Protecting rights of the people. Some police, prosecutors, and some judges just do not get it. We do not represent "criminals"; we represent people. That "presumption of innocence" is not just a cutesy phrase to make our system sound fair; it is supposed to be at the core of our system. What has happened; however, is that everybody wants to be the "toughest sheriff in town". Not only the sheriff, but the street cops, the prosecutors, the legislators, the judges, the probation officers - everybody wants to be "tough on crime".
Crime, however, is like beauty, it is in the eyes of the beholder. Do you notice how the Republicans want to go after street crimes more (e.g., the minorities) while the Democrats go after the white collar guys (e.g., government and business)? Politics should not be involved in our criminal justice system, but is, and this contributes to the perception of injustice and corruption in the system. One of the presidential candidates said he will appoint more conservative judges, yet as a senator he confirmed the ones appointed by a Democratic President.
The President says that he wants a national curfew for children. He wants more cops on the streets. He wants his "terrorism bill" (which he got) to go after people the Department of Justice loosely suspects to be "terrorists".
This is the environment - legal, social, political - in which we live and in which we defend citizens accused of crimes. The environment is hostile - there is not a level playing field - the deck is stacked greatly in favor of the government. With mandatory sentences, biased elements of the criminal justice system, and a public who also wants to be "tough" on crime, the accused and his counsel have many challenges. It is even more difficult for the indigent defendant who often cannot make bond, cannot afford his own attorney, cannot pay for extensive private investigation, cannot hire expert witnesses, and simply cannot sustain a lengthy defense. He cannot afford his own private presentence investigations, and he cannot afford his own attorney on appeal.
This country was founded out of revolution, and the founding fathers created a constitution which emphasized the citizen rights over the government. Somehow, that intent became obfuscated as our society separated the classes and emphasized control and prosecution of the minorities and the poor. The Charles Keatings and high corrupt governmental officials are not dealt with - prosecuted - until the public demands it; but the minorities and the poor fill the courtrooms, jails, and prisons to prove how "tough" on crime the politicians (in all three branches of government) are.
Those of us who work in the system know the score, but once in a while we need to step back and look at the total environment as I have tried to describe some of it in this article. We need to know the "environment", and we need to keep trying to change it for the better; or it will get even worse.
Joseph E. Abodeely
The whole world is watching as the purported leader of the free world shoots itself in the foot because of the indiscretions of the President of the United States of America. Youll notice that I didnt say "alleged indiscretions". Yes, after four years of investigations, and after forty millions of dollars having been expended by the special counsel, Kenneth Starr, the whole universe knows that Bill Clinton was having some extra marital sex with Monica Lewinsky, a White House intern, whose claim in history will be that she flashed her underwear at the President, that she often performed fellatio on the President, that she acted like a spoiled little brat when he wouldnt give up everything to make her number one in his life, and she, like a twit, confided in a "friend", Linda Tripp, about her affairs.
There have been rumors about corruption in the Clinton presidency--people mysteriously dying; FBI files on political enemies being improperly used; "White Water", improper activities relating to campaign contributions (e.g., "renting" White House rooms, money from China, selling national security secrets); etc.; but no solid evidence has thus far been presented on these issues. Instead, the special counsel who was originally appointed to investigate "White Water" gave us Monica sucking on Bill.
Americans are very hypocritical when it comes to sex. They dont want to talk about it in polite company, but they love to read about it in the tabloids; they love the subliminal messages, as well as the blatant messages, permeating every day advertisements; and they love watching the sex show going on under the guise of self-righteous Republican Congressmen who must do their "Constitutional duty". Oh, please spare me this sanctimonious bull feces. Without condoning President Clintons conduct with Monica, it is a fact and is common knowledge that there is a high percentage of extra marital affairs among men and women. I believe that the issue of an extra marital affair should be between the immediate parties concerned and should not be used as extortion or black mail as it has been used by the religious right and the Republican dominated Congress against Clinton.
Field Marshall Gingrich and his brown shirts have launched a merciless attack against the President of the United States of America because he (the President) had an affair and lied about it. Congressmen are concerned that someone lied to the American people. Am I the only one who sees the irony in this situation? They say the President committed a felony by testifying falsely under oath in a legal proceeding. People testify every day in some legal proceeding, and lying under oath is a national pastime. Each side of a lawsuit has people testifying, and there is invariably a dispute as to the facts presented. Someone is lying. Perjury is a felony--they say. So is smoking a marijuana cigarette. Should a President be impeached for smoking a "joint"? How many perjury prosecutions have you ever even heard of? Get the point?
Corruption of Criminal Justice
What I find to be more despicable than the allegation of perjury is the corruption of the criminal justice procedures for political expediency. Starr was appointed to be an independent counsel to investigate White Water. Instead of acting like an independent counsel, he has acted more like a prosecutor. He has spent forty million dollars of public money and four years of investigations to deliver an adultery and perjury case--such as it is. Both Starr and Paula Jones religious right attorney have gone after Clinton with a vengeance. Yet, very little is said about the illegal eavesdropping that Linda Tripp did in order to acquire tape recorded statements from Monica. That conduct is illegal. Grand jury proceedings are supposed to be secret, but there were numerous leaks about grand jury testimony from Kenneth Starrs office. That conduct is illegal. The grand jury testimony of the President was supposed to be secret, but when it was released to Congress, Congress made it public in order to try to embarrass the President. That conduct is illegal, but no one dares to challenge Congress. Congress has politicized the criminal justice process. If Bill Clinton were a Mafia hit man with 50 "hits" under his belt, his grand jury testimony still would not be made a matter of public record except upon specific order of a court. Congress has seen fit to impeach or accuse President Bill Clinton under the Constitution of the United States of America. You have heard the Congressmen grandstanding and wrapping themselves in the American flag and pontificating about their "Constitutional" duties. Lets examine just where this Constitutional scenario may take us.
The House of Representatives has the sole power of impeachment. Article I, Section 2. The House members act as a prosecutorial body to "file charges" against the President. Although the impeachment process is a political process, it clearly has the trappings of a criminal trial.
The Senate has the sole power to try all impeachments. Article I, Section 3. When the President is tried, the Chief Justice of the U.S. Supreme Court shall preside over the trial; and the President cannot be convicted without the concurrence of two-thirds of the Senate members present. (Id.,). If the President is convicted, he can be removed from office and disqualified from serving in other offices; and he is still liable and subject to indictment, trial, judgement, and punishment according to law. (Id.,). One can readily see that the impeachment process, although political in nature, is still a "trial" in the truest sense of the word. To emphasize this point, the Constitution says that the trial of all crimes, except in cases of impeachment, shall be by jury. Article III, Section 2. The President shall be removed from office if he is impeached for, and convicted of, treason, bribery, or other "high crimes and misdemeanors". Article II, Section 4.
The House has acted like a prosecutor, and as such, they could have used "prosecutorial discretion" and not have filed charges (Articles of Impeachment) against the President. It is a common practice for prosecutors to consider whether or not there is a likelihood of conviction before filing charges, but in this case the "prosecutor" (the Republican dominated House of Representatives) chose to impeach the President knowing full well that (1) the American people still strongly support the President they elected and (2) there is no likelihood that the Senate will deliver sixty-six votes to convict Bill Clinton.
There is a runaway Congress doing whatever it wants to do because one political party has acquired so much power in the legislative branch on the federal government. The media, who have no integrity at all, are loving the situation because its the best story in town, if not in the country, if not in the world.
And since we are a nation of laws, not of men, and since it is in vogue to be a "crime fighter", and since this Democratic President has been a thorn in the side of the Republicans agenda, and since Clintons views on gays in the military, partial birth abortion, and other issues make him an easy target for the religious right--it is plain to see that the Republican dominated Congress will continue to play "prosecutor" for partisan political purposes. They are playing this serious political game of impeachment of our nations elected leader while the Middle East is still a hot-spot, Japans economy is devastated, Korea is a threat, more nations are testing their nuclear weapons, the Serbs continue to commit genocide, the U.S. stock market is having fits, corruption is rampant in all three branches of government throughout the country, the United Nations family of nations frequently votes contrary to how the U.S. votes on world issues, etc. Meanwhile, Congress is playing "prosecutor".
Tyranny does not have to flow from a single despot; it can manifest itself through a group of despots or dictators such as a mob or the Congress. I believe the actions of Congress in this so-called impeachment inquiry have been in violation of the laws of the land and are far more outrageous than the ones made against the President. There are three branches of government according to our Constitution--the Executive (President), the Legislative (Congress), and the Supreme Court (and inferior courts). The executive power is in the President. Article II, Section 1. The President is the Commander in Chief of the Armed Forces to include the Militia of the various states when he calls them into actual service of the United States. Article 2, Section 2. It is the Presidents duty to take care that the laws of the United States are faithfully executed. Article 2, Section 3.
It is clear that the President is co-equal with Congress in terms of Constitutional authority. The founding fathers wanted it that way; therefore, the President has a Constitutional duty, just as Congress claims it has, to see that the laws are faithfully executed. He cannot simply allow Congress to corrupt the criminal justice process by encouraging directly or indirectly the acquisition and use of illegally obtained evidence through eavesdropping or prosecutorial threats and grand jury leaks.
Everyone knows that there are not enough votes to convict the President of wrongdoing and that the Republican controlled Congress has politicized a criminal justice process. If Clinton is given a fair trial in the Senate, he will not be convicted. Because of the harm that the impeachment process is causing in terms of distraction of the President from his duties and the emotional trauma it is obviously causing him as he tries to perform the duties of the job to which he was duly elected, and because of the illegal conduct that Congress has engaged in either directly or through it agents, the President must take action against Congress. Congress has become tyrannical in its actions against the President of the United States and the American people.
The President will not be convicted; but if by some strange fluke he were convicted and ordered from his office, he can declare martial law in the District of Columbia because there is an absence of law and because Congress has not been acting in the best interests of the United States national security by the impeachment charade. As Commander in Chief, President Clinton can call upon his armed forces and the federalized national guard, if necessary, to enforce the laws as he and his advisors interpret them. The concept of national security has changed and a declared war is no longer a prerequisite to the use of armed forces (e.g., Vietnam, Grenada, Panama, Somalia, Iraq, Afghanistan, Sudan, and internal and external threats of terrorism). A runaway, partisan Congress which violates domestic laws and attacks the Executive branch of the national government for non-meritorious reasons is a threat to national security. Congress also is greatly influenced by special interests groups which also threaten our national security. (See my essay, "TERRORISM-WHAT AND WHY?").
One might assume that Im simply a friend of Bills, and that I am a lackey Democrat trying to cover Clintons butt for his horrible misdeeds. Wrong! I am a registered Republican who is disenchanted with both political parties and most of elected officials at my state level (Arizona) and at the federal level. I have no special fondness for Bill Clinton who is basically a weak leader, but I voted for him in the last election because I believed he was relevant to and understood the issues and problems facing the United States in the next millennium. I am a veteran of the Vietnam War during the 1968 Tet Offensive having served with the famous 1st Air Cavalry Division as a combat platoon leader. Bill Clinton was a draft dodger. Now, he is the duly elected President of the United States; and a partisan, runaway Congress doing what it is doing is a threat to our Constitutional form of government and our national security. If Clinton were a military man or surrounded himself with people other than touchy-feely types to advise him, he might understand what Im saying. We will have to wait and see how the scenario plays out to see what Clinton will ultimately do. I predict that he will not be convicted and that the Republicans will suffer a backlash for their actions, but I wish Clinton had the balls to take on Congress and start the revolution this country needs to flush out the crap in our federal government.
If you think what Ive said is radical, take note:
(By Joseph E. Abodeely, Colonel, USAR, Ret)
Vietnam is not only a country, or a war; it is a period in our history which occupied at least one-tenth of the 20th century. The war affected the Vietnamese people--both in the north and south; combatants and non-combatants; and it affected all of us Americans--those who served in-country and the populace at home.
It was a turbulent period in history--the end of World War II, the Korean War, the "Cold War", the Cuba Missile Crisis, the Civil Rights Movement, the escalation of the Vietnam War, the assassinations of John F. Kennedy, Martin Luther King, and Bobby Kennedy, the Tet Offensive of 1968, "body counts", Walter Cronkites erroneous pronouncement that the war was lost, the Democratic National Convention, anti-war protests, Black Panthers, the Cambodian incursion, Kent State shootings, drugs, free love, womens liberation, Woodstock, Watergate-- and the media (primarily by television) showing all of this to us every day.
Although the American military excelled in almost every thing it did on the battlefield; although U.S. forces killed more of the enemy than they killed of us; although we won almost every military engagement with the Viet Cong and the North Vietnamese Army; the U.S. pulled out of Vietnam and left the South to be taken by the North. The reasons why this happened are too complex to discuss here; but somehow in all the turbulence the U.S. soldier who did the brunt of the fighting under very difficult conditions was made a scapegoat for the U.S. not "winning" the war.
Vietnam veterans were treated like war criminals and made "scapegoats" when they returned home after risking life and limb and psyche for their country. The media and Congress contributed greatly to this, but they have never admitted their guilt and have never treated the Vietnam veterans as the heroes they really were. Instead, they made "heroes" out of the victims of the war such as the returning POWs we all saw getting off the plane and draft dodgers and anti-war protestors.
Vietnam veterans were no worse than any other soldiers in U.S. history. In fact, they were better. They kept Communism from spreading throughout Southeast Asia; hence, they accomplished their mission. In that respect, they won the war, and they certainly helped to drain the resources of the Communists thereby causing the collapse of the old Soviet Union.
Vietnam veterans, contrary to a grave misconception, were not prone to use drugs any more than non-veterans during the war years. As far as killing innocent civilians, less were killed than those killed by "collateral damage" during Desert Storm and Desert Fox. World War II veterans may have seen battles unfold on a larger scale than in Vietnam, but nothing rivaled Vietnam in the constancy of risk and the immediacy of danger. Infantrymen in Vietnam spent their days repeatedly sweeping the same terrain, capturing the same hills and hamlets, and sometimes got ambushed in the places they previously secured. That was the nature of the war as the nations leaders wanted it fought. Another interesting statistic is that in World War II 2/3 of the veterans were drafted while in the Vietnam War 2/3 of the veterans volunteered. Our World War II veterans are heroes, but our Vietnam Veterans are our heroes, too; and our country needs to say so, often.
One often hears about the Vietnam veteran who is a "loser", or down-and-outer, or cry baby, but most Vietnam veterans are not like that. They served their country bravely and honorably and returned to an ungrateful country and were maligned or ridiculed or worse, ignored. They went back to school or went to work and have been productive members of society.
REMEMBER AND APPRECIATE THE SERVICE OF VIETNAM VETERANS.
Note: In April, 1968, I was an infantry lieutenant with the 1st Air Cavalry Division leading a 20,000 man operation (Pegasus) to relieve the U.S. Marines who were under a 66 day long siege at a place called Khe Sanh. The Tet Offensive of 1968 proved to be a military disaster for the Viet Cong and the North Vietnamese Army, but people like Walter Cronkite and others in the liberally oriented media misled the American public into believing America was losing the war in Vietnam. Anti-war protesters proclaimed that the war was not a war because Congress had not declared war, that the war was a civil war which the U.S. should avoid, that the war was immoral, and that the war was "illegal".
When I returned to "the world" in January, 1969 and saw how the media portrayed American armed forces actions in Vietnam, and when I heard many law students and "legal experts" cry that the war was illegal, I wrote this paper one year after I was at Khe Sanh.
You may find some of the arguments about U.S. involvement in Vietnam enlightening as you hear more and more about Kosovo. Consider the issues about the President using troops in an undeclared war, the nature of the internal conflict--civil war or genocide, and the lack of congressional and public support. Sound familiar?
The United States is presently engaged in an armed conflict in Vietnam which has already exceeded the death toll of the Korean conflict and is draining manpower and money which many people believe could be put to better use here at home. It is difficult for part of the American public to see why this nation is sending troops to fight a de facto war in a foreign country when it appears that the war, being on the other side of the world, is not in the interest of our national self-defense. What is even more frustrating to many Americans is that there seems to be no immediate end to the war in sight. As a result of the aforementioned observations, popular dissent has become evident and has manifested itself in many forms--peace marches, war protests, draft card burnings, refusals to induction into the military, newspaper editorials, congressional dissenting, and even litigation against the Government of the United States by individuals who do not wish to participate in what has been termed an "illegal war".
The purpose of this paper is to explore the Vietnam conflict in this context--its legality. The legality of the Vietnam conflict has two distinct aspects: the justifiability of the United States intervention under international law with which I will deal in the first part of this paper, and the constitutionality of such action under domestic law which is treated later on.
Although United States commitment of troops in actual combat in Vietnam is relatively new, the present conflict in Vietnam has its origins in over fifty years of French colonial rule in Indochina. French control over the Indo-Chinese peninsula began
with military conquest beginning in the 1850's and gradually extended over half a century to include all of what is now Laos,
Cambodia, and Vietnam. In 1899, the French organized the area as the French Indo-Chinese Union consisting of the French Protectorates of Laos and Cambodia, and the French colony of Cochin-China in the Mekong Delta in southern Vietnam, and the French Protectorates of Annam in central Vietnam, and Tonkin in northern Vietnam. The Japanese supplanted French rule in the 1940s, and their rule lasted until the capitulation of the Japanese forces in 1945.
The Potsdam Conference of 1945 gave the Indochina territories taken from the Japanese to Great Britain for the areas south of the sixteenth parallel and to the Republic of China for the areas north of that parallel. Meanwhile the Vietminh (League for the Independence of Vietnam), led by Ho Chi Minh, proclaimed the independence of the democratic Republic of Vietnam and established a government for all of Vietnam with its seat at Hanoi.
The British who controlled southern Vietnam rearmed the French and relinquished authority over the area to them while the Chinese retained military control over the north and permitted the Vietminh to function as a de facto civil regime. On March 6, 1946, the French Government recognized the Republic of Vietnam as a free state but not as an independent state and agreed with the Vietminh Government to enter into friendly negotiations on the future status of Indochina. Negotiations between the Vietminh and the
French were unsuccessful; and by December 1946, the French Indo-chinese War had begun which ended in military defeat for the French Union Forces at Dienbienphu and in political capitulation at the Geneva Conference of 1954.
Prior to the Geneva Conference, the French Government agreed on June 5, 1948 to recognize an independent "State of Vietnam" within the French Union with former Emperor Bao Dai as its head. This "State of Vietnam" was recognized by the United States on February 7, 1950 as an independent state within the French Union. The Soviet Union recognized the Vietminh regime in North Vietnam as The Democratic Republic of Vietnam during the same year. Each regime, Bao Dai's in the south, and Ho Chi Minh's in the north, claimed authority over the whole of Vietnam.1
With the defeat of The French Union Forces at Dienbienphu came the Geneva Conference. The Geneva Accords of 1954 established the date and hour for a cease-fire in Vietnam, drew a "provisional military demarcation line" with a demilitarized zone on both sides, and required an exchange of prisoners and the
phased regroupment of Vietminh Forces from the south to the north and The French Union Forces from the north to the south. The introduction into Vietnam of troop reinforcements and new military equipment (except for replacement and repair) was prohibited. The armed forces of each party were required to respect the demilitarized zone and The territory of the other zone.
Applicable sections of The agreement are as follows:
Provisional Military Demarcation Line and Demilitarized Zone
A provisional military demarcation line shall be fixed on either side of which the forces of the two parties shall be regrouped after their withdrawal, the forces of the People's Army of Vietnam to the north of the line and the forces of the French Union to the south.
The provisional military demarcation line is fixed as shown on the map attached (see Map No. 1).
It is also agreed that a demilitarized zone shall be established on either side of the demarcation line, to a width of not more than 5 kms. from it, to act as a buffer zone and avoid any incidents which might result in the resumption of hostilities.2
Article 1 clearly designates the military demarcation line which is to be honored by both parties to the agreement. Incidents which might "result in the resumption of hostilities" are to be avoided.
Chapter II, article 10 reads:
The Commanders of the Forces on each side, on the one side the Commander in Chief of the French Union Forces in Indo-China and on the other side the Commander in Chief of the
People's Army of Vietnam, shall order and enforce the complete cessation of all hostilities in Vietnam by all armed forces under their control, including all units and personnel of the ground, naval, and air force.3
The Geneva Accords spell out that there will be a cessation of hostilities and the commanders of the two zones respectively will enforce the terms of the agreement and respect the demilitarized zone and the territory of the other zone. The adherence of either zone to any military alliance and the use of either zone for the resumption of hostilities or to "further an aggressive policy" were prohibited.
The International Control Commission was established composed of India, Canada, and Poland with India as Chairman. The task of the Commission was to supervise the proper execution of the provisions of the Cease-Fire Agreement. General elections that would result in the reunification of Vietnam were required to be held in July 1956 under the supervision of the Internal Control Commission.4
During the five years following the Geneva Conference of 1954, The Hanoi regime developed a covert political-military organization in South Vietnam based on Communist cadres it had ordered to stay in the south, contrary to provisions of the Geneva Accords. Thus, we see an immediate and substantial violation of the Geneva Accords. The activities of this covert organization were directed toward the kidnaping and assassination of civilian officials--acts of terrorism that were perpetrated in increasing numbers. In the three year period from 1959 to 1961, the North Vietnam Regime infiltrated an estimated 10,000 men into the south.
This was clearly in violation of the Geneva Accords. It is estimated that 13,000 additional personnel were infiltrated in 1962 and by the end of 1964, North Vietnam may well have moved over 4,000 armed and unarmed guerrillas into South Vietnam.5
South Vietnam was now under armed attack from the north. The term "armed attack" has significance in the SEATO Treaty (to be discussed) in determining whether intervention by The United States was justified under certain provision of the treaty; however, to avoid dwelling on semantics, let us assume that thousands of armed and unarmed personnel infiltrated from North Vietnam to the south could be considered an "armed attack" in the broadest sense of the term. Acts of kidnaping, assassination of civilian officials, and other acts of terrorism should also be included in the concept of "armed attack" since guerrilla warfare is characterized by these acts rather than a blatant "troops on line" type of show of force characteristic of an invasion or attack in conventional warfare.
The Southeast Asia Collective Defense Treaty, here after called the SEATO alliance, was signed at Manila on September 3,
1954. The parties to the treaty were Australia, France, New
Zealand, Pakistan, Philippines, Thailand, the United Kingdom, and the United States. It was entered into force as to The United States on February 19, 1955. Apparently, the parties to the treaty realized that the treaty area--the general area of Southeast Asia--was still in a state of turmoil; and in order to protect the interest of those countries who were trying to govern themselves and remain free from Communist aggression and exploitation, and in order to promote a general state of peace in the treaty area, the parties to the SEATO alliance expressed their goals in the treaty:
The parties to this Treaty, Recognizing the sovereign equality of all the parties,
Reiterating their faith in the purposes and principles set forth in the Charter of the
United Nations and their desire to live in peace with all peoples and all governments,
Reaffirming that, in accordance with the Charter of the United Nations, they uphold the
principle of equal rights and self- determination of peoples, and Declaring that they will
earnestly strive by every peaceful means to promote self- government and to secure it and
are able to undertake its responsibilities, Desiring to strengthen the fabric of peace and
freedom and to uphold the principles of democracy, individual liberty and the rule of law,
and to promote the economic well- being and development of all peoples in the treaty area,
Intending to declare publicly and formally their sense of unity, so that any potential
aggressor will appreciate that the parties stand together in the area, and
Therefore agree as follows:
The parties to the treaty have stated their desire to "strengthen the fabric of peace and freedom and to uphold the principles of democracy, individual liberty and the rule of law, and to promote the economic well-being and development of all peoples in the treaty area"; and they wish to declare publicly their "sense of unity so that any potential aggressor will appreciate that the parties stand together in the area...". They are trying to ensure peace in an area which had just experienced the Indo-Chinese War.
Article I goes on to state:
The parties undertake, as set forth in the Chapter of the United Nations, to settle any international disputes in which they may be involved by peaceful mean in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.6
Article IV, paragraph 1 reads:
Each party recognizes that aggression by means of armed attack in the treaty area against any of the parties or against any state or territory which the parties by unanimous agreement may hereafter designate, would endanger its own peace and safety, and agrees that it will in that event act to meet the common danger in accordance with its constitutional processes. Measures taken under this paragraph shall be immediately reported to the Security Council of the United Nations.7
This provision, supra, is where the term "armed attack" becomes critical because if South Vietnam was in fact subjected to an armed attack as indicated by the findings of the International Control Commission, then the United States is merely fulfilling its obligation as expressed in the SEATO alliance to "act to meet the common danger". On the other hand, if South Vietnam was not subjected to an "armed attack", then paragraph 2 of Article IV would be controlling.
Article IV, paragraph 2 reads:
If in the opinion of any of the parties, the inviolability or the integrity of the territory or the sovereignty or political independence of any party in the treaty area or of any other state or territory to which the provisions of paragraph 1 of this article from time to time apply is threatened in any way other than by armed attack or is affected or threatened by any fact or situation which might endanger the peace of the area, the Parties shall consult immediately in order to agree on the measure which should be taken for the common defense.8
Apparently, South Vietnam and the United States were under the impression that South Vietnam was subjected to an armed attack by North Vietnam cadres. As I have noted earlier, an armed attack does not have to have the formality and magnitude of large forces invading other large forces or civilian areas. Small units, characteristic of guerrilla warfare, can conduct an armed attack and even create a state of war.
Corpus Juris Secundum defines war:
War, in the broad sense, is a properly conducted contest of armed public forces, or in a narrower sense, a state of affairs during the continuance of which the parties to the war may legally exercise force against each other..... It is not necessary, to constitute war, that both parties shall be acknowledged as independent nations or sovereign states, but war may exist where one of the belligerents claims sovereign rights as against the other.9
It seems clear that the acts of aggression (infiltration of armed troops to the south) and terrorism by North Vietnam can be termed as an "armed attack" and could be legally acted upon by the United States as a party to the SEATO alliance. The authorization for such action would be paragraph 1 of Article IV of the treaty.
South Vietnam, not a member of the SEATO alliance, but within the treaty area (area of Southeast Asia) could act in its own interest of self-defense to ward off the attack from the north. The United Nations Charter recognizes the inherent right of individual or collective self-defense if an armed attack occurs against any member of the United Nations. Article-51 of the Charter of the United Nations reads:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of The United Nations, until The Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.10
According to Article 51, the United Nations encourages self-defense of its members against an armed attack; and although South Vietnam was not a member of the United Nations; it would be absurd and inconsistent with international goals of world peace and security to assume that South Vietnam would not have the right to take individual or collective self-defense against an armed attack. The United Nations Charter nowhere contains any provision designed to deprive non-members of the right of self-defense against an armed attack. The State Department Memorandum concerning the legality of United States participation in The Vietnam war has stated:
The Republic of Vietnam in the South has been recognized as a separate international entity by approximately sixty governments the world over. It has been admitted as a member of a number of the specialized agencies of the United Nations.. The United Nations General Assembly in 1957 voted to recommend South Vietnam for membership in the Organization, and its admission was frustrated only by the veto of the Soviet Union in the Security Council. In any event there is no warrant for the suggestion that one zone of a temporarily divided state-- whether it be Germany, Korea, or Vietnam-- can be legally overrun by armed forces from the other zone, crossing the internationally recognized line of demarcation between the two. Any such doctrine would subvert the international agreement establishing the line of demarcation and would pose grave dangers to international peace.11
Thus, it is consistent with principles of international law concerning maintaining world peace and security that South Vietnam defend itself against aggression from North Vietnam. Article 51 of the Charter of the United Nations encourages self-defense against armed attacks, and the SEATO alliance encourages action by any of its members to maintain peace and security in the treaty area (thus the United States involvement).
Opponents to the legality of the Vietnam war have contended that South Vietnam violated an important provision of the Geneva accords by refusing to hold general elections in July of 1956; therefore, the cause of South Vietnam has no greater legality to it than does the cause of North Vietnam which violated the Geneva Accords by infiltrating armed personnel to the south. This contention can only be held invalid when the circumstances are analyzed.
The Geneva Accords contemplated the reunification of the two parts of Vietnam by containing a provision for general elections to be held in July, 1956 in order to obtain a "free expression of the national will." The Accords stated that "consultations will be held on this subject between the competent representative authorities of the two zones from July 20, 1955 onwards." South Vietnam did not sign the cease-fire agreement of 1954 and did not adhere to the Final Declaration of the Geneva Conference. The South Vietnamese Government at that time gave notice of its objections in particular to the election provisions of the Accords.
Whether or nor the provisions were binding on South Vietnam is questionable, but even assuming they were, the South Vietnamese Government's failure to engage in consultations in 1955 with a view to holding elections in 1956 involved no breach of obligation. The conditions in North Vietnam were not conducive to making possible any free and meaningful expression of popular will.
General Giap, Defense Minister of North Vietnam, in addressing the Tenth Congress of the North Vietnamese Communist Party in October 1956, publicly acknowledged that the Communist leaders were running a police state where executions, terror, and torture were commonplace. A nationwide election would not have represented what the people wanted as no one in the north would have dared to vote except as directed; and since a substantial majority of the Vietnamese people living north of the seventeenth parallel would have voted Communist, the country would have been relinquished to the Communists without regard to the will of the people. The purpose of the elections was to get a "free expression of the national will", and this purpose would not have been met had the elections been held.12 The acts of terrorism conducted by personnel from the north on persons in the south also would have negated a free expression of the will of the people in the south had they voted.
At this point, let us focus our attention on the President of the United States and his power to commit troops to the aid of a foreign country. The SEATO alliance was a treaty advised and consented to by the Senate of The United States. The President as Commander in Chief of The armed forces and as chief executor of the laws of the land is authorized to commit troops to Vietnam in accordance with the provisions of the SEATO alliance and principles of international law (i.e., maintaining peace and security in a treaty area).
The actions of the Congress, particularly the Joint Resolution of August 10, 1964, also authorize the President to commit troops to Vietnam. Whereas two United States naval destroyers were attacked by Communist forces in The Gulf of Tonkin, both the Senate and the House of Representatives resolved to approve and support whatever actions the President, as Commander in Chief, deemed necessary to take to repel armed attacks against United States forces and to maintain peace and security in Southeast Asia. The Southeast Asia Resolution states:
Whereas naval units of The Communists regime of Vietnam in violation of the principles of the Charter of the United Nations and of international law, have deliberately and repeatedly attacked United States naval vessels lawfully present in international waters, and have thereby created a serious threat to international peace.....
Resolved by the Senate and House of Representatives of The United States of America in Congress assembled,
That the Congress approves and supports the determination of the President, as
Commander in Chief, to take all necessary measures to repel any armed attack against the
forces of the United States and to prevent further
The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in Southeast Asia.
Consonant with the Constitution of the United States and the Charter of The United Nations and in accordance with its obligations under the Southeast Asia Collective Defense
Treaty, the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force,to assist any member or protocol state of the Southeast Collective Defense Treaty requesting assistance in defense of its freedom.
By the Congressional Resolution, Congress has merely reaffirmed what the Constitution of the United States has said: the President is Commander in Chief of the armed forces and chief executor of the laws of the land (treaties included of course).
The SEATO alliance (one of The laws of the land) is being acted upon when the President sends troops to the "treaty area" to help restore peace and security. Thus, in this way, the President is acting in the capacity--chief executor of one of the laws of the land and Commander in Chief of the armed forces. The Gulf of Tonkin Resolution (another law of the land) spells out the people's will that the President "take all necessary steps, including the use of armed force" in order to maintain international peace and security in Southeast Asia.
The Constitution of the United States gives certain powers to the President. Article II, section 1 says, "The executive Power shall be vested in a President of the United States of America." Article II, section 2 says, "The President shall be Commander in Chief of the Army and Navy of the United States." Article II, section 3 says, "... he shall take care that the laws be faithfully executed."14
While there has been dispute over the extent to which inherent or implied powers of his office allow the President to use force without prior statutory authorization in other areas--notably to aid civil authorities or to protect states from domestic violence--the authority of the President to use the armed forces, at least in the absence of restrictive legislation, in order to enforce within the United States substantial federal interests evidenced by the nation's laws is now generally accepted.15
In In Re Debs, where certain railroad officials
were obstructing railroad traffic and the flow of mails, the Supreme Court said, "The
entire strength of the nation may be used to enforce in any part of the land the full and
free exercise of all national powers and the security of all rights entrusted by the
Constitution to its care. The strong arm of the national
The President as Commander in Chief can use troops not only to enforce the nationals laws and protect substantial federal interests, but he can use troops to defend the nation against a sudden attack without a declaration of war from Congress.
Though the war-declaring clause was intended to give Congress the power to initiate war in most cases, there is the view that at least in the case of a sudden attack the President was able to respond without prior congressional sanction, even though such response would amount to making war. The rationale for conceding the existence of this power in the President no doubt lies in the recognition that where the defense of the country itself is at stake, there is simply no room for procedural restrictions which might hamper the republics ability to survive intact. Thus viewed, the power need not rest on any specific provision of the Constitution; as a necessary concomitant of sovereignly itself, the inherent right of national self-defense gives the President full power to defend the country against sudden attack with whatever means are at his disposal as Commander in Chief.17
The Prize Cases approved of the expanding power of the President to make war without prior authorization under the theory of defense during the Civil War. The Supreme Court said, "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be unilateral."18
The court upheld the validity of Lincoln's proclamation of a blockade of the Southern ports. The President was recognized as possessing unlimited power to wage war in defending against a war begun through invasion or rebellion, and he was to be the sole judge of when such invasion or rebellion amounted to "war," thereby authorizing assumption of his full defensive powers.
What is the relation between the President's use of troops in the interest of national self-defense as exemplified in the Prize Cases and the President's use of troops engaged in a de facto war in Vietnam as authorized under provisions of the SEATO alliance and The Gulf bf Tonkin Resolution? The trend today is to consider "self-defense" of a nation to extend beyond the nation's immediate boundaries. The State Department Memorandum, supra, suggests that a direct attack is no longer a realistic prerequisite for exercise of the President's power to act unilaterally in national self-defense. Because of the delicate balance of power among nations as well as the frightening technology of modern warfare, an attack on a foreign country may just as surely threaten our security as a direct attack on United States territory.
The twentieth century and the experience of two world wars have created the idea of linking American defense with extraterritorial security interests. National security became world security and there emerged the thesis of collective self-defense. The United Nations Charter explicitly recognizes inherent right of individual or collective self-defense, and the United States proceeded accordingly in the years following World War II to conclude a number of regional and bilateral security agreements. By the agreements, the United States generally agreed to regard an attack on a member nation as threatening its own safety and to assist in defensive measures. The SEATO alliance is one such agreement.19
There are recent examples of overseas conflicts where a president has exercised his constitutionally given authority to use the nations troops--the invasion of South Korea during President Trumans administration, the Arab threat to Lebanon during Eisenhowers, the sending of missiles to Cuba during Kennedys, and the disorder in the Dominican Republic during Johnsons administration. These examples are not true cases of where the President sent troops abroad in the interest of national self-defense, but they are better designated as the exercise of the President's power to protect American interests abroad. On the other hand, where the President has sent troops to Vietnam, it is a somewhat different story.. Even if to some people the SEATO alliance provision to maintain peace and security in Southeast Asia (an area on the other side of the world in relation to the United States) does not appear to be in the interest of self-defense of the United States, certainly it is convincing that the sending of troops to Southeast Asia (after American warships had been deliberately and maliciously attacked in international waters) is in the interest of self-defense. Thus, the self-defense argument, perhaps not as strong as the argument that we are engaging in a war to help South Vietnam rid itself of aggression, is still tenable. Apparently the Congress and President of the United States think so as implied by the Southeast Asia Resolution.
Critics of the President's sending troops to Vietnam say he has usurped congressional authority to declare war. Article 1, section 8 of the Constitution says that Congress shall have the power to declare war. The President has not infringed on that power; Congress may declare wars when the situations arise, but in cases of conflicts of a lesser magnitude than a large scale war, the President has traditionally taken action without a formal declaration of war.
In an article, The War in Vietnam: Unconstitutional,Justiciable,and,Jurisdictionally,Attackable, the war in Vietnam is bitterly criticized; none-the-less, the article points out that the President has, on some one hundred twenty-five occasions, without congressional declaration of war, ordered the armed forces to take some action or to maintain some position abroad. It also points out that "the one use of force upon which the current war might be supported is the Korean war, which was a long sustained and large-scale foreign military operation fought without a congressional declaration of war."20
Another argument in favor of the President sending troops abroad without congressional declaration of war is that the President is the nations leader in international relations. In United States V. Curtiss-Wright Export Corp., the Supreme Court held that a Joint Resolution of Congress authorizing the President to determine whether or not the sale of United States arms and munitions of war to foreign countries engaged in war inhibited peace in the warring countries was a constitutional delegation of legislative power to the Executive.
"It is quite apparent that if in the maintenance of our international relations, embarrassment--perhaps serious embarrassment--is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiations and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries; and especially is this true in time of war."21
The President as the nation's leader in foreign relations must on occasion act to protect American interests abroad; and as the SEATO alliance acknowledged America's interest in peace and security in Southeast Asia, the President by sending troops to South Vietnam is protectinq these interests.
Another critic of the Vietnam war, Stanley Faulkner, in an article, The War in Vietnam: Is It Constitutional?, comments that the President does not constitutionally have the right to commit troops to Vietnam.
"The powers of the President, both in war and in peace are not absolute. The framers of our Constitution did not enumerate the powers of the President until after the powers of Congress were detailed in article I. The issue as to where to place the power of declaring war was carefully deliberated by the framers. "22
As has been noted earlier, the President has traditionally taken measures in situations somewhat less than a large scale war without a declaration of war from Congress. Faulkner's reasoning has no bearing on the Vietnam war because there is no declaration of war by Congress. The President is acting not under a declaration of war, but rather he is acting in the capacity as leader in international affairs and is protecting our national interest abroad as other presidents have done in the past.
Faulkner believes that the Supreme Court should scrutinize the acts of the President with respect to Vietnam to determine their legality. He believes that the court should not hide any longer behind the "thicket" of the "political question." He cites the Youngstown case as a leading example of judicial scrutiny of executive powers. President Truman issued an order to seize steel plants during a nationwide strike. The Korean conflict was on and he believed the strike would jeopardize national defense. The plaintiffs, leaders in the steel industry, reguested the Supreme Court to enjoin Secretary of Commerce, Sawyer, from enforcing an Executive Order to seize steel plants. The court held that the President does not have undefined powers and that he exceeded his enumerated powers in the present case.23 The decision in the Youngstown case is not applicable to the President's sending troops to Vietnam as the case decided that he could not seize steel mills on strike rather than he could not send troops to engage in combat overseas. There is a difference between seizure of private property and sending troops abroad under provisions of an international treaty and a congressional resolution.
In determining the legality of United States involvement in the Vietnam war, either in the context of international law or the constitutionality of the President's sending troops there without a declaration of war from Congress, one must examine the problem in the context of its time. The world situation, the international goal of peace and security, the struggle of small new nations to govern themselves, the concept of war--both large scale international war and small scale guerilla war, the expanding powers of the President in international relations--all of these factors influence why the United States is involved in the Vietnam war; and they influence ones attitude toward the wars legality or illegality.
Whatever The arguments may be for the wars legality or illegality, the Vietnam war and the United States involvement therein is something that cannot be decided in a legal context. The legality of The war is simply a nonjusticiable issue. Who should decide if the war is legal or illegal? The Supreme Court of the United States? If so, the Supreme Court would be passing judgment upon actions of the other two branches of our Federal Government, the Legislative and the Executive, in an area--international relations--which the Supreme Court has already acknowledged the President to be the leader (Curtiss-Wright case, supra).
The Supreme Court has recognized its limitations and has refrained from deciding a political question when another branch of the Federal Government can take action. In particular, the Court has refused to decide recent cases which involve the legality of the war in Vietnam. In Mora vs. McNamara, 389 U.S. 934 (1967), the petitioners were drafted~into the United States Army in late 1965, and six months later were ordered to a West Coast replacement station for shipment to Vietnam. They brought this suit to prevent the Secretary of Defense and the Secretary of the Army from carrying out these orders, and requested a declaratory judgment that the present United States military activity in Vietnam is "illegal". The Supreme Court denied a petition for writ of certiorari.24
Until some "arch tribunal" declares the United States involvement in the Vietnam conflict to be illegal, under present international law principles and our constitutional law principles, the legality of the war in Vietnam can only be affirmed.
1. Daniel Partan, Legal Aspects of the Vietnam Conflict, 46 Boston, University Law Review 281, 283 (1966).
2. Geneva Accords Richard A. Falk, Editor, The Vietnam War and International Law,
Princeton University Press; Princeton, New Jersey
3. Id., p. 545.
4. Memorandum of Law, Dept. of State, The Legality of United States Participation in the Defense of Vietnam, 75 Yale Law Journal 1084 (1966) at p. 1097.
5. Id., p. 1085.
6. Southeast Asia Collective Defense Treaty, Sept. 8, 1954, (1955) 1 ACED 81, TAS. No. 3170 at p. 82.
7. Id., p. 83.
8. Id., p. 83.
9. 93 CGS, War and National Defense,
1 at p. 6 (1946).
10. Memorandum of Law, Dept. of State, supra
note 4, at p.1097.
11. Id., p. 1090.
12. Id., p. 1099.
13. Southeast Asia Resolution, Pub. L. No. 88-408, (H.J. Res. 1145), 78 Stat. 384 (1964).
14. Constitution of the United States,
Library of Congress, Lester S. Jayson, Supervising Editor, U.S. Govt. Printing Office, Washington: 1964.
15. Note, Congress, The President, And the
Power to Commit Forces to Combat, 81 Harvard Law Review l77l (l968) at p. 1775.
16. In Re Debs, 158 U.S. 564, 582 (1895).
17. Note, Congress, The President, And the
Power to Commit Forces to Combat, supra note 15, at p. 1778.
18. Prize Cases, 67 U.S. (2 Black) 635, 668 (1863).
19 Note, Congress, The President, And the Power to Commit Forces to Combat, supra note 15, at p. 1782.
20. The War in Vietnam: Unconstitutional, Just~able, and Jurisdictionally Attackable, 16 Kansas Law Review 449 (1968) at p. 470.
21. United States v. Curtiss-Wright Export Corp.,
299 U.S. 304, 320 (1936).
22. Stanley Faulkner, The War in Vietnam: Is It Constitutional? 56 Georgetown Law Journal 1132 (1968) at p. 1132.
23. Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952).
24. Mora V. McNamara, 389 U.S. 934 (1967).
CITATION OF AUTHORITIES
In Re Debs, 158 U.S. 564 (1895).
Mora V. McNamara, 389 U.S. 934 (1967).
Prize Cases--Frigate Amy Warwick; Schooner Creashak; Barque Hathaway; Schooner Brilliantine, 67 U.S. (2 Black) 635 (1863).
United States V. Curtis-Wright Export Corp., 299 U.S. 304 (1936).
Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579 (1952).
Constitution of the United States of America, Library of Congress, Lester S. Jason, Supervising Editor, U.S. Govt. Printing Office, Washington: 1964.
Geneva Accords signed July 20, 1954
Richard A. Falk, Editor, The Vietnam War and International Law, Princeton University Press; Princeton, New Jersey (1968).
Southeast Asia Collective Defense Treaty, Sept. 8, 1954, (1955) 1 ACED 81, TAS. No. 3170.
Southeast Asia Resolution, Pub. L. No. 88-408, (H.J. Res. 1145), 78 Stat. 384 (1964).
93 CGS, War and National Defense 1 at p. 6 (1946).
Stanley Faulkner, The War in Vietnam: Is It
Constitutional?, 56 Georgetown Law Journal 1132 (1968).
Memorandum of Law, Dept. of State, The Legality of United States Participation in the Defense of Vietnam, 75 Yale Law Journal 1084 (1966).
Daniel Partan, Legal Aspects of the Vietnam Conflict, 46 Boston University Law Review 281 (1966).
Note, Congress, The President, And The Power to Commit Forces to Combat, 81 Harvard Law Review 1771 (1968).
OVERVIEW March 25, 2004
Some people probably believe that "terrorism" all began with the Trade Center bombing of 9-11. More sophisticated people know that terrorism is not new and that it is complex as well as often deadly. My military training as a combat unit commander and my legal training as a trial attorney have taught me that in order to employ tactics to accomplish a mission or to achieve a desired result I had to know or understand: (1) the capabilities and resources of the opposing force or party, (2) what that opposing force or party wanted, (3) my capabilities and resources, and (4) what I was willing to compromise if I could not achieve 100% of my desired mission or goal. I learned that things are not always what they seem to be. It is possible to win battles and lose a war. It is possible to win a war and lose the peace.
Warfare has been waged with large standing armies or navies for centuries. Special operations forces have been developed for "special operations" or missions, but they are still extensions or variations on the theme of the larger forces or armies. Terrorism has been called warfare on the cheap because it usually involves a small number of people with relatively inexpensive weapons including small arms and explosives. Another important terrorist characteristic is that the terrorist is not motivated by being a conscripted soldier. Terrorists use violence or the threat of violence to achieve a political, religious, or ideological goal. Often they are separatists or they are religious fundamentalists. Terrorists can be nation-states with an agenda disguised as self- defense. Terrorists can be transnational by committing terrorist acts in various nation-states other than their homeland or they can commit terrorist acts in their homeland.
Al Qaeda is the first multinational terrorist group of the twenty-first century. Having defeated the Soviet Union in Afghanistan, and driven by Islamic zeal, most Arab and Asian mujahidin (warriors of God) who returned home from the internationally supported jijad (holy war) wanted to cause radical social and political change. They joined opposition political parties, religious bodies and groups in their own countries, campaigning against dictatorial Muslim rulers and their corrupt regimes.
Al Qaeda was originally MAKMaktab al Khidmat lil Mujahidin al-Arabor Afghan Service Bureau. MAK was founded by Abdullah Azzam in 1984 in Peshawar, Pakistan; and he and his protge, Osamma bin Laden, ran it for several years disseminating propaganda, raising funds, and recruiting new members throughout a network of offices (including thirty in US cities) in thirty-five countries. Even before the departure of Soviet troops in 1989, MAKs socio-enomic, political, and military infrastructure had steadfastly evolved into Al Qaeda.
The resources at MAKs disposal were diverted by Al Qaeda away from Afghanistan into regional conflicts where Islamist guerrillas were involved, principally in Kashmir and Chechnya, but also in Mindanao, Tajikistan, Uzbekistan, Somalia, Malaysia, Indonesia, Georgia, Nagorno-Karabakh, Azerbaijan, Yemen, Algeria, and Egypt. In most of these countries, the governing regimes were openly hostile to Islamist movements, often repressing them ferociously.
Using the humanitarian cover of MAK and some Islamic charities, Al Qaeda infiltrated many of these conflicts, sending cadres to train further recruits and to take part in actual fighting. Although Afghanistan was Al Qaedas principal military training base, it also trained recruits in Sudan, Yemen, Chechnya, Tajikistan, Somalia, and the Philippines. Al Qaeda and its supporters in 60 countries range from small cells to allied terrorist groups to guerrilla gangs, and they pose a formidable foe to the US. (See "Terrors New Wave", Time, p.28, October 28, 2002).
As progress in these domestic campaignsfrom Saudi Arabia to Egypt and Algeriawas slow, a second front was initiated by Al Qaeda to target the United States and its allies. Without directly challenging Western military power, economic strength, and cultural influence, the Islamists perceive that they cannot bring about change in their home countries because a group of Western countries, led by the USA, steadfastly supports Israel and unrepresentative Arab regimes of the Middle East. (See, generally, Inside Al Qaeda Global Network of Terror by Rohan Gunaratna, Columbia University Press, 2002).
AL QAEDA WANTS TO HARM THE UNITED STATES
Osamma Bin Laden, himself, in an interview with Peter Arnett, indicated three reasons why his Al Qaeda may have had a motive to attack the US(1) the US occupation of Saudi Arabia with troops during the Gulf War, (2) the unnecessary and prolonged suffering of the Iraqi people after the war due to US backed sanctions, and (3) the illegal occupation and oppression of the Palestinian people by Israel also strongly supported by the US.
It is probably fair to say that the unprovoked, falsely justified invasion of Iraq has not further endeared the United States to Al Qaeda. It has been reported that Al Qaeda have flocked to Iraq to help to kill US military and civilian personnel.
Terrorism is not new, and our national leaders responsible for protecting our national security have not been as adept at detecting and preventing terrorism as they could have been. Dick Clark, former "Terrorist Czar" for several Presidents, has recently stated on CBSs 60 Minutes and in the print media and in his book, Against All Enemies, that George W. Bush ignored his warnings about Al Qaeda before 9-11 and that Bush and his key national security advisors wanted him (Clark) to find evidence linking Al Qaeda and Saddam Husseins Iraq even though he, the CIA, and the FBI told him there was no such evidence. The Congressional 9-11 hearings have also shown the Clinton administration to have been somewhat inept.
We need honest, dedicated people with keen insight, knowledge, training, and experience to find, prevent, and neutralize terrorism and to act solely in the best interests of the United States. The US support of Israel in its occupation and genocide of the Palestinians and the unprovoked and unjustified invasion of the Iraqi people have fed the causes of the terrorists. These causes sow the seeds for more terrorists to attack US citizens wherever they may be. It is likely that Iraq will become Shiite Muslim-dominated and an enemy of the US in the not too distant future.
The solution is not to appease terrorists; but we must use diplomacy when prudent to do so; we must target known (not just suspected) terrorists before we "assassinate" or kill them or imprison them without due process; we must work with the international community to pool intelligence and military/police resources; and we must adhere to principles of international law when dealing in the international arena if we are to avoid becoming outlaws or "terrorists", ourselves. I believe that the US can neutralize Al Qaeda and its allies by pressing Israel to cease its assassinations, its military incursions into the occupied Palestinian cities, and by removing the settlementsall actions encouraged by the United Nations. This will curry favor with the rest of the world and take away a causethe Palestinian issuefrom the terrorists. Remember, terrorists take action for causes. This is not appeasement; this is a sound international political tactic. The US needs the international community to take over Iraq after the US leaves on June 30, 2004.
Those who commit terrorist acts in their own country are called "domestic terrorists". In some respects domestic terrorism is more painfulfiguratively speakingbecause our fellow countrymen commit it. The "Unabomber", Timothy McVeigh, Terry Nicholsall Americans disaffected with their country" policies. There is nothing wrong with disagreeing with the nations policies or even speaking out about it or even engaging in legitimate protests about the government or the political leaders, but one cannot use violence to "protest".
We have seen actions in this country which resulted from frustrations of people who feel that they are disconnected from their government. We live in turbulent times with a President and administration that much of this country simply does not like. Could we have a surge of domestic terrorism? Would we recognize "domestic terrorism" if we saw it? Will the government try to suppress legitimate First Amendment rights by calling certain actions "domestic terrorism"? Could the government become so oppressive that it could force the citizenry to take action consistent with the Declaration Of Independence which says that the people have a right and a duty to alter or abolish the existing government if that government becomes destructive of the ends and the rights of the people to life, liberty, and the pursuit of happiness?
When I was on duty at the Pentagon as a reserve officer in 1992, I drafted a memorandum for the Chief, Security, Force Protections, and Law Enforcement Division, U.S. Army Military Police Operations Agency. This was at Department of Army level. After my tour, I had a telephone conversation with one of the other Colonels I had worked with, and he said that my memorandum stirred up a great deal of interest at the Pentagon.
See what you think of the memorandum that follows which was written over a decade ago
MEMORANDUM FOR Chief, Security, Force Protection, and Law
SUBJECT: "L.A. RIOTS" as Domestic Terrorism
Over the last few weeks the nation (and the world) has been shocked at the reported situation in the second largest city in the U.S. --Los Angeles. As reported in the media and verified by official investigation, shortly after a jury reached a "not guilty" verdict (on the policemen who were viewed on videotape beating Rodney King during an "arrest" situation), violence broke out in the Lost Angeles and even in other cities in America.
The situation in Los Angeles was especially violent. Over 1000 fires were reported, people were killed, beaten, threatened, robbed; business were burned and/or looted; and public statements were made by some participants and the media to the effect (1) that Blacks and other minorities cannot get justice in our criminal justice system; (2) that national leaders do not care about the economic plight of the lower socio-economic strata of society, and (3) that the "riots" were the culmination of the frustrations of the down-trodden and abused. Placards viewed on television and in newspapers said, "We want justice." Participants in the lawlessness included Blacks, Hispanics, Orientals, Anglos, street gangs, "Crypts", "Bloods", illegal aliens, and opportunists.
It is too simplistic to say that all the violence and destruction were just caused by "criminals" and "thugs" and "gangs", and illegal aliens and not realize that the L.A. situation sent a message across the country, if not the world,
The National Guard was called out, and later federalized. The 7th Infantry Division from Fort Ord was deployed to quell the situation. The President of the U.S. was prompted to visit the devastated area and meet with "the people" affected.
The situation did not localize in Los Angeles; violence and demonstrations occurred in cities across the nation to protest the acquittal of the police officers who beat King.
In a publication, Domestic Terrorism, an emergency preparedness project sponsored by the National Governors' Association, the executive summary says:
SUBJECT: "L.A. RIOTS" as Domestic Terrorism
"United States foreign policy officials have long been actively concerned with problems posed by the growth of international terrorism. However, in the last five years there has been a noticeable increase in the consequences of terrorist activity in the domestic United States...
The interesting point about the statement is that it was printed in May 1979, not May 1992.
DoD Directive 0-2000.12, August 27, 1990 relates to the Combating Terrorism Program and assigns responsibilities for the protection of DoD personnel and facilities from terrorist acts.
"Terrorism" is defined as "The calculated use of violence or threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological".
"Domestic Terrorism" is defined as "Terrorism perpetrated by the citizens of one country against fellow countryman. That includes acts against citizens of a second country when they are in the host country, and not the principal or intended target".
When one applies the facts -- the riots, the intimidations of the police and other authority, the quest for "justice" and economic parity, etc. -- there has been domestic terrorism involved in the L.A. "riots", and it has not been so designated by either the FBI or DoD.
DoD personnel cannot be protected from terrorist acts if terrorist acts are not recognized, and DoD personnel have been on the scene of a terrorist threat.
A true patriot is one who loves, supports, defends, and is
devoted to his country without superficial fanfare.
I am a patriot, and I know that
LOSING OUR FREEDOMS
After 9-11, Arabs and Muslims were targeted for FBI
interrogations and public ridicule and discrimination because of the mood
set by this administration. Some were incarcerated for minor visa
violations. Almost all Arabs and
Muslims were portrayed directly and inferentially by the media and by
government officials as being terrorists.
After the invasion of
Bush senior and Bush junior had extensive lucrative
business and personal contacts with the Saudis.
When the FAA canceled air travel, the only people who received
special treatment were the family of Osama bin Laden and some prominent
Saudis who were rushed out of the
Bush has also used 9-11 to trample on citizens rights by implementing the USA Patriot Act, which is a subterfuge to conduct searches based on mere suspicion without judicially authorized warrants and without even giving notices of the searches. Congress passed the Act with little or no review. The concept of privacy for the citizen is eroded. The definition of terrorism has also been broadened such that it could include legitimate protest, especially if any violence erupts.
The Bush administration is the most secretive of recent presidencies. Bush answers only friendly reporters, which helps to maintain the secrecy of his administration. An FBI translator told the public two years ago that intercepts relevant to 9-11 included references to skyscrapers and had been badly translated to English. Attorney General Ashcroft has ordered that the translators information be retroactively classified so the public cannot have access to the previously disclosed embarrassing information. Bush gives speeches at military locations because the troops cannot criticize the commander-in-chief. When he travels, the Secret Service coordinates with the local police and designates free speech zones which are blocks away from where he will be speaking.
After 9-11, which was a terrorist bombing conducted
primarily by Saudi Arabian Islamic extremists, the
We have been told that we are in
The reason du jour for our being in
The media didnt show us the death and suffering of the shock and awe. We Americans get squeamish when we learn of an American getting his head cut off by the insurgents; but during shock and awe 500 and 1000 pound bombs and 2000 pound Cruise Missiles and J-Dam bombs came showering down on Iraqi mothers, daughters, aunts, uncles, sons, fathers, grandmothers, grandfathers, etc. who never attacked us. I wonder how many of them had their heads, arms, and legs severed from their torsos? We have dehumanized all Arabs and Muslims such that the loss of their lives or loved-ones or property is considered acceptable in our culture.
ABU GHRAIB AND OTHER ACTS OF DISDAIN FOR INTERNATIONAL LAW
The preliminary evidence shows there were rapes, murders,
assaults, and torture at Abu Ghraib
and that high-ranking officers in the chain of command had knowledge
of these war crimes. Congress
has been passive in demanding full investigations of the incidents, and the
media has spent more time on Saddam Husseins initial appearance in court
than on the Abu Ghraib investigation.
The world now knows that in
Shortly after 9-11, Bush and his buddy, Prince Bandar
(Saudi Arabian ambassador) AKA Bandar Bush, discussed what to do with any
captured Al Qaeda detainees. Why would Bush discuss this issue with the
ambassador of a country known for its ruthlessness with dissidents and
criminals? Mr. Gonzales,
Bushs personal lawyer, advised that the Geneva Conventions provisions were
quaint and that Bushs authority might take priority over the Geneva
Conventions. The Washington Post
reported that Lieutenant General Ricardo Sanchez borrowed heavily from a
list of high-pressure interrogation tactics used at the detention center in
Although Abu Ghraib has the potential to show that
numerous war crimes were condoned at the highest levels, I think the
greatest war crimes are the illegal invasion of
I voted for George W. Bush, and I was wrong to have done so. I am hoping a change will restore a respect for Americans rights at home and human rights abroad. I would like to see the international community prosecute those at the highest level who are guilty of war crimes to punish and discourage that conduct in the future. No! 9-11 did not change everything! We Americans have rights and freedoms, which must not be taken away from us by anyoneincluding our government.
I saw this on a POW-MIA bumper sticker: For those who fought for it freedom has a flavor the protected will never know. Im still fighting for my freedoms, how about you?
Sources: American Dynasty by Kevin Phillips, House of Bush House of Saud by Craig Unger,
Worse Than Watergate by John W. Dean
Joseph E. Abodeely email@example.com July 14, 2004
(To view Joe Abodeely's outstanding
credentials, see his personal, military,
and legal biographies).
To respond to this article, please use the feedback form.
Site developed and maintained by The
Digital Sign Company.
Get your business exposed on The Arizona Internet Mall.