War Without WMD
An Appeal to the British
by David Mills
June 16, 2003
I am an American trial lawyer and have been for 25 years. I do not think of myself as an obsessive person, but I am so angry about this war and I am obsessed with it. I am becoming even more so, now that it is becoming more and more evident every day that this preemptive war was based on bogus or exaggerated intelligence.
As I lawyer, I was initially rankled when the U.S. administration began the build up to war by claiming that Saddam had the burden of proving he had no weapons of mass destruction. Since when in America did the accused have the burden of proving his innocence?
And when 1441 was being discussed, I was irritated that the administration insisted that Saddam "fully comply." The law does not acknowledge the doctrine of full compliance. Substantial compliance is all the law requires because full compliance is a technical impossibility.
And when 1441 called for the UN to take action, the only penalty it put Saddam on notice of, was that he would face "serious consequences." Imagine the difficulty of a murder statute which says that one who commits murder will face "serious consequences" as a penalty. Our jurisprudence requires that laws which impose penalties for a violation be very specific about what the penalties are or they are almost universally considered unconstitutional. This ambiguity didn't stop the administration from claiming that "serious consequences" meant military action. The Russians, French, Germans and others didn't see "serious consequences" as meaning the same thing we saw it meaning. But the administration didn't care what they thought.
From 1441, the administration jumped to the doctrine of preemption. When in America has it been proper to put a 14 year old in jail because the best intelligence indicates that he will become a menace to society by the time he turns 18? I thought this concept was a legal outrage.
The only legitimate legal doctrine that I know of, which supports military action or police action, prior to attack or the commission of a criminal act, is the doctrine of eminent danger or clear and present danger. Where was the evidence for the use of this doctrine? I couldn't find it. In my mind, this war was truly illegal in ways perhaps only lawyers appreciate or can articulate.
But why did it happen?
For one thing, I believe Congress has abdicated its duty to challenge the necessity of war. Congress gave the administration a pass. Lincoln said that one of the main reasons our founding fathers were so vehemently opposed to kings is because kings were infamous for starting wars "for the good of the people." Congress was supposed to be a check on the use of this imperial power. Some check Congress turned out to be. For about 50 years now, Congress has allowed presidents to wage wars on the President's own initiatives, just like kings and monarchs of the past. Scary.
Moreover, the fourth branch of government, the press, has done no better. I have never heard of the press becoming "imbedded with the military." What kind of a check on power is this? I have never seen such a dearth of critical questioning from the press in my life. My impression of the press is that its members cared more about the ratings they would get from being "imbedded" than they cared about thinking critically. It sure seems like the influence of big business in/on the media has usurped the core principles of journalism.
But maybe what I am most upset about is my own profession, which seemingly has watched from the sidelines without so much as a making a peep, while the basic legal principles I outlined above have been cast aside as if they were nothing more than rules of the playground. It could be that no one in the press wanted to give us an audience. Maybe many lawyers felt as I do, but if so, we weren't heard.
There is plenty of blame to go around.
Now we hear that the unthinkable flaw in the doctrine of preemption has occurred. The doctrine is only as good as the intelligence to support it, and our intelligence has turned out to be hyped at best, and fraudulent at worst. There will be no coalition of the willing (or bribed or coerced) in the future because no one will believe our intelligence any longer.
To go to war under false pretenses is about the worst thing any country can do, much less a democracy. Even a good outcome (which is still very much in question and becoming more doubtful every day) makes the war Machiavellian. This situation can not be allowed to be swept under the rug.
We in the anti-war community of America need the support of the British. While I never gave much credence to Bush's arguments for war, I have always liked Tony Blair, and was almost persuaded by him. While I didn't think there was much concern for America's security, he made me concerned for Europe's. I'm sure many Americans who were sitting on the fence, and heard the Prime Minister, were persuaded to join up. Now we learn the dossier the Prime Minister used to convince us all was mostly an outdated plagiarized thesis. I would have to say in retrospect, that Tony Blair seriously jeopardized the American anti-war movement which was almost strong enough to prevent war. Without a coalition, there is good reason to believe there would have been no war.
John Dean, the ex-counsel to Richard Nixon and who went to jail for his involvement in Watergate, claims that if Bush lied about weapons of mass destruction, this would be far worse crime than the crimes of Watergate. Impeachment would definitely be warranted.
I don't know what will happen in Britain regarding Tony Blair's future. But I can say this. If Blair is allowed to remain in power in Britain, impeaching Bush will be far more difficult to do. With the Republicans controlling Congress, I believe it will take the removal of Blair to put enough pressure on Congress to begin impeachment of Bush. If Bush is not impeached, he will likely win a second term and more illegal wars may follow.
The way I see it, our fate is in your hands.
David Mills is an attorney based in Memphis, Tennessee. He can be contacted at: email@example.com