Rule for civilians: first kill all the lawyers. Rule for lawyers: first kill everyone else?
This "memo" you were drafting for White House Counsel Alberto Gonzales was going to be treated as a secret law, but it would remain on record as some sort of quasi-law after becoming public. Years later it still hasn't been rejected (its existence in fact barely acknowledged), even if your public reputation has been ruined and the failure of Congress to impeach you now in your current office is commonly cited as evidence of the death of Congress as an institution. In fact, you're facing civil prosecutions at home and a possible indictment in Spain for having drafted much less criminal memos than this one. Here's what you wrote to Gonzales, who had asked you on behalf of President George W. Bush to legalize aggressive wars for him:
"You have asked our Office whether the President has the authority, under both domestic and international law, to use military force against Iraq. This memorandum confirms our prior advice to you regarding the scope of the President's authority. We conclude that the President possesses constitutional authority for ordering the use of force against Iraq to protect our national interests. This independent authority is supplemented by congressional authorization in the form of the Authorization for Use of Military Force Against Iraq Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991), which supports the use of force to secure Iraq's compliance with its international obligations following the liberation of Kuwait, and the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001), which supports military action against Iraq if the President determines Iraq provided assistance to the perpetrators of the terrorist attacks of September 11, 2001."
Now this is curious. You've already granted the president absolute authority. Then you've granted him authority on the basis of an AUMF from 1991. Now you throw in the 2001 version that allowed the attack on Afghanistan. That one will provide additional redundant authorization, you claim, if Iraq provided assistance to 9-11, or rather: if the president determines that to be the case. Congress passed yet another non-declaration of war less than two weeks before the date on your memo. This one, even if you chose to accept it as constitutional, had terms attached to it that George W. Bush had no intention of complying with and in fact violated. And none of these domestic justifications for the crime you are here "legalizing" fit with any of the international justifications you were alleging in this same memo. A war is no more authorized by the UNSC or defensive because Congress misplaces its spine or the president "determines" that pigs fly. And your arguments for the domestic legality of the war do not attempt to portray it as defensive of U.N.-approved.
So, you returned to the international arena with this thesis, to be argued for below:
"In addition, using force against Iraq would be consistent with international law, because it would be authorized by the United Nations ("U.N.") Security Council, or would be justified as anticipatory self-defense."
And you were still just clearing your throat:
"This memorandum is divided into three sections. First, we explain the background to the current conflict with Iraq, touching upon the U.N. Security Council resolutions related to the Persian Gulf War and its aftermath, and highlighting the situations in which the United States has used force against Iraq between 1991 and the present. Second, we discuss the President's authority under domestic law to direct military action against Iraq, examining both his constitutional authority and supplementary congressional support. Finally, we detail the justification under international law for the United States to use force against Iraq, considering the circumstances in which the U.N. Security Council has authorized such action and the scenarios in which it would be appropriate to use force in anticipatory self-defense."
Appropriate? If what is legal morphs into what is appropriate, and the determiner of what is appropriate is Jay Bybee, what are the law books for? And what would best make an aggressive war appropriate? Why, pretending it was simply an ordinary and even defensive continuation of a war long-since legalized. Making that case, however, would require providing some background. Forgive me if I quote and then quickly dismiss a large stinking, steaming pile of it (background). I've deleted your footnotes throughout, by the way, Mr. Bybee, simply because they are in the same vein as the rest of the document and consequently make it even worse, not better. Those wanting to read the footnotes can go to your original: PDF.
To continue reading this annotated blogger's edition of Bybee's confession to mass-murder, open one of these documents:
PDF. Word. Old Word.
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