09 Jan DOJ Releases More Bush-Era Legal Opinions – UPDATED
Bravo to everyone who’s spent the past months and years pressing the Bush Administration Justice Department to release more of its legal opinions supporting “war on terror” policies. Looks like all that work (by more folks than I can reasonably name in this space) finally paid off. This morning one can find in the “What’s New” section of the U.S. DOJ website a rich list of Bush legal opinions on an array of topics in international law. Here are the a few of the first on the list. Now to the reading….
“PROTECTED PERSON” STATUS IN OCCUPIED IRAQ UNDER THE FOURTH GENEVA CONVENTION
(March 18, 2004) (added 1/08/09)
STATUS OF TALIBAN FORCES UNDER ARTICLE 4 OF THE THIRD GENEVA CONVENTION OF 1949
(February 7, 2002) (added 1/08/09)
AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(October 23, 2002) (added 1/08/09)
EFFECT OF A RECENT UNITED NATIONS SECURITY COUNCIL RESOLUTION ON THE AUTHORITY OF THE PRESIDENT UNDER INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(November 8, 2002) (added 1/08/09)
WHETHER FALSE STATEMENTS OR OMISSIONS IN IRAQ’S WEAPONS OF MASS DESTRUCTION DECLARATION WOULD CONSTITUTE A “FURTHER MATERIAL BREACH” UNDER U.N. SECURITY COUNCIL RESOLUTION 1441
(December 7, 2002) (added 1/08/09)
LEGALITY OF THE USE OF MILITARY COMMISSIONS TO TRY TERRORISTS
(November 6, 2001) (added 1/08/09)
UPDATE: Having spent a few more minutes skimming today’s memo release, some points to note. First, the much-discussed “missing memos” – Bush administration legal opinions said to further detail the legal justification for coercive interrogation techniques – don’t appear to be among the latest documents. We may hope they’ll yet emerge. There is, however, a 2006 memo intriguingly regarding “whether a presidential pardon granted under Article II, § 2 of the Constitution has the effect of automatically expunging Judicial or Executive Branch records relating to the conviction or underlying offense.” Deputy Assistant Attorney General Michelle Boardman concluded, happily, it does not. Also likely worth a careful read is an October 23, 2002 Jay Bybee memo detailing why using force against Iraq is consistent with international law of anticipatory self-defense. The memo first announces a “reformulated test for using force in anticipatory self-defense” in which:
[A]t least in the realm of WMD and international terrorism, the test for determining whether a threat is sufficiently “imminent” to render the use of force necessary at a particular point has become more nuanced than Secretary Webster’s nineteenth-century formulation. Factors to be considered include: the probability of an attack; the likelihood that this probability will increase, and therefore the need to take advantage of a window of opportunity; whether diplomatic alternatives are practical; and the magnitude of the harm that could result from the threat.
It then is able to conclude:
[E]ven if the probability that Iraq itself would attack the United States with WMD, or would transfer such weapons to terrorists for their use against the United States, were relatively low, the exceptionally high degree of harm that would result, combined with a limited window of opportunity and the likelihood that if we do not use force, the threat will increase, could lead the President to conclude that military action is necessary to defend the United States.
So even if it were in fact unlikely that a state had threatening nuclear ambitions, the mere existence of nuclear proliferation in the world at large might justify the “preemptive” use of force? Or maybe someone could explain how I’m misreading this?
You’re not misreading it Deborah, it’s just one more example of the Bush administration’s Grand Theory of Everything — if George Bush thinks it’s a good idea, then it’s perfectly legal no matter what the law actually says. See John Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them”, OLC (2001.09.25): “In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.” * And here’s another item that may interest readers, a new protective order issued by Judge Hogan this week that pertains to those detainee cases which involve “Top Secret / Sensitive Compartmentalized Information”; see… USDC D.D.C. — AMENDED PROTECTIVE ORDER FOR HABEAS CASES INVOLVING TOP SECRET / SENSITIVE COMPARTMENTED INFORMATION AND PROCEDURES FOR COUNSEL ACCESS TO DETAINEES AT THE UNITED STATES NAVAL BASE IN GUANTANAMO BAY,… Read more »
[…] the Office of the Legal Counsel of the US Department of Justice released several of its secret memoranda to President Bush, several of which are of interest for international lawyers. Two of them deal […]
More charitably, the opinion could be read as limited by the text in bold: “the exceptionally high degree of harm that would result, combined with a limited window of opportunity and the likelihood that if we do not use force, the threat will increase,” In other words, use of such preemptive force would require a specific finding by the president that a state’s nuclear ambitions, though presently not greatly “threatening,” will likely ultimately become so. For the record, I opposed the invasion of Iraq in 2002 & 2003, and I think the administration’s penchant for acting wherever possible on the authority executive alone was exceedingly foolish. But, that said, the question here really is not so simple. There are people who would like nothing more than to detonate a nuclear or radiological bomb in the United States – and the prospect that a weak state, or state prone to fanatic overthrow, or a state whose line of succession did not look as if it tended toward the sane, could acquire nuclear capability is very frightening indeed. The risk in such a case is arguably not insubstantial. And the opinion is certainly correct that, in terms of nuclear programs, there is… Read more »