On What Authority?

by Stephen Gowans

January 28, 2002


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"One more," shouted the reporter, trying to hold White House Spokesman Ari Fleischer's attention. "By what authority, then, by what international authority is the United States shipping these people from their home country to Guantánamo Naval Base in Cuba? Just the fact that we have them in our control and consider them dangerous and want to move them across the world?" (1)

Fleischer, standing behind the podium in the White House's James S. Brady briefing room, didn't have to marshal his thoughts. As always, he had a quick and ready reply. Fleischer was being asked about the Taliban and al-Qaeda "battlefield detainees," who had been herded onto military aircraft, hooded, manacled, shorn of their beards, a few sedated, and flown 27 hours to the US naval station at Guantánamo Bay, where they are being housed — caged, actually — in chain-link fencing surrounding a concrete floor and supporting a metal roof, (2) measuring approximately six by eight feet. Six by eight feet — that's about the size of a small bathroom. And the cages leave prisoners partly exposed to the elements.

These aren't prisoners of war but "battlefield detainees," or, as Defense Secretary Donald Rumsfeld calls them, "unlawful combatants." The term "prisoner of war," Fleischer was quick to point out, "has a strict legal definition attached as to who is and who is not a prisoner of war." Captured combatants wearing an identifiable uniform or insignia, who bear arms openly — those are prisoners of war, according to the administration's interpretation of the Geneva Convention. (3) The Taliban and al-Qaeda prisoners who fought against US, UK and Northern Alliance forces, without identifiable uniforms, and not part of a regular military, couldn't be considered "prisoners of war" under a strict legal definition, and so could be treated any way the Pentagon chose. Holding them at Guantánamo Bay, and not on US soil, where the Constitution would afford a measure of protection against cruel and arbitrary treatment, put the icing on the cake. Unshielded by the Geneva Convention, unprotected by the US Constitution, these prisoners could be treated any damn way the administration wanted. "Why my goodness, yes. Our country treats people humanely." (4)

Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War requires that "persons shall enjoy the protection of the present convention until such time as their status has been determined by a competent tribunal." (5) And that the status of the prisoners wasn't as clear-cut as the administration let on was obvious. Fleischer himself acknowledged there would be "a case-by-case determination of each and every one of these individuals to see if they qualify under the Geneva Convention as prisoners." So why weren't they being treated as prisoners of war?

Prisoners of war under the Geneva Convention are supposed to be housed in accommodations similar to those regular troops live in. That would include prisoners whose status hasn't been resolved by "a case-by-case determination." Prisoners are supposed to be provided with adequate shelter, food, clothing and medical care, have to be allowed to correspond with their relatives, must be permitted to receive relief supplies and be visited by such groups as the Red Cross. Importantly, they cannot be pressured to reveal more than a minimum of information. That was hardly convenient. The whole point of caging the prisoners at Guantánamo Bay is to interrogate them. (6) The whole point of hooding them, shaving their beards, and leaving them partially exposed to the elements is to break them down. "We're in the process of interrogating them because we're trying to find intelligence information that will help us from having their associates and their colleagues and their best friends around the world go kill more people." (7) That's the way administration explained it.

Across town, the Defense Secretary was telling reporters that "for the most part, [we will] treat [the prisoners] in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate." (8) "Reasonably consistent"? "For the most part"? "To the extent they are appropriate"? Rumsfeld was doing what politicians often do — saying the opposite of what it seemed he was saying. Prisoners wouldn't be treated in a manner consistent with the Geneva Convention at all, even if it seemed he was saying they would. That wasn't hard to figure out. Even one as dim-witted as Rumsfeld's boss could intuit that humiliating and caging prisoners is not consistent with the Geneva Convention. Canada's Minister of Defense, Art Eggleton, who ordered Canadian troops to Afghanistan to assist in mopping up operations under US command, played dumb: "Do I believe [the Americans] are following the Geneva Convention? Yes. I have no reason, I have no knowledge, to believe they are not." (9)

Michael Byers, a professor of international law at Duke University says that "putting hoods on the men violates the 1984 international convention against torture and forcible sedation is against international law." (10) And shaving the beards of the prisoners — all fundamentalist Muslims, for whom beards have a religious significance — "can only be designed to humiliate them."

Back at the White House, reporters were still trying to nail down whether the administration was holding the prisoners under any authority, other than the authority of having more weapons of mass destruction than anyone else. "But you do feel that you can keep them in custody, whether you determine the..." the reporter trailed off, as Fleischer talked over him.

"If the alternative is to let them roam Afghanistan free again," shot back the press secretary, "to commit more crimes and to engage in war, that's clearly not an option that anybody is going to pursue."

This wasn't going well. This guy knew the administration had absolutely no grounds to hold the prisoners, and he was pressing his point, trying to get Fleischer to say, "No, damn it. We have no authority." But Fleischer didn't become press secretary without knowing how to wriggle out of verbal traps, if not always elegantly.

"So it is, then, based on that answer, it is a function of their dangerousness and the American interest in its own self-defense?" the reporter persisted.

Dodging, Fleischer countered: "The reason they were being detained is because they were engaged in a war against America's Armed Forces," a curious way to describe fighting back against soldiers who have travelled half way around the world to kill you.

"But it sounds like their detention is based on our fundamental national interest and protecting ourselves."

"Their detention is because they need to be detained so they do not carry out acts of aggression in a war against the United States."

"There's no international convention or there's no law on which we're detaining them, it's basically, they're dangerous, they want to kill Americans, and we're going to keep them in detention." Right?

"Put it this way," Fleischer replied, frustrated. "There's a war in Afghanistan."

There's a war in Afghanistan? Fleischer didn't need to remind anyone of that. But what Fleischer seemed to be saying is that when you're at war you do whatever you need to do to win. Even if it means breaking laws. That's the kind of thinking the Pentagon — and almost every other military — has always followed.

Most people know that. It's a minority that blathers irrelevantly about jus ad bello (whether a war is fought for just reasons) and jus in bellum (whether the war is carried out in a just way) and international treaties and the customs of war and whether searing hot shrapnel tearing away half a toddler's skull can be said to be just, because the toddler's death was unintended and the consequence of a measured, proportional use of force. As Sophists and casuists hold colloquia, and write sage articles in learned journals, B-52s thunder down runways en route to some hapless Afghan village, to unleash a deadly payload on desperately poor people who had the misfortune to be bound by circumstance to the same parcel of hard-scrabble, arid geography occupied by fleeing al-Qaeda fighters. Homes turned into craters, husbands turned into widowers, mothers made childless, and all the while theologians and ethicists and patriots and journalists debate the fine points of the customs of war. Three-quarters of them are employed by, or hope to be employed by, the very same decision-makers who ordered the B-52s on their bombing runs, confident there's no dearth of experts capable of putting a humanitarian, ethical and moral gloss on the most blatantly immoral acts. Meanwhile, the remaining minority of dissenters is dismissed as "nut-cases," bullied into silence, or marginalized. Humanitarian law and international law and the customs of war, used to bind the weak for political and propaganda purposes, safely ignored by the strong because there's no overarching authority to compel obedience, is a crock.

Take the question of what authority Washington has to wage war on Afghanistan. It has none whatsoever. Indeed, Washington has, and not for the first time in recent years, flagrantly trampled international law, behaving, as is now its wont, as history's greatest rogue. And yet, matching its contempt for international law with unmitigated brazenness, it pretends it acts on the authority of the UN Security Council. But whenever did the Security Council say the US could pursue an open-ended war, against whoever it wanted, unbound by international law? Never.

But that doesn't mean Washington didn't arrange for the Security Council to carefully craft two resolutions that make it seem as if Washington has carte blanche to blow up whomever it chooses to blow up, in much the same way Donald Rumsfeld carefully crafts his sentences to make it seem the Geneva Conventions will be followed when he has no intention of doing anything of the kind.

The media have fallen for this deception, almost to a person. One left-leaning, antiwar Canadian journalist even believes Bush decided to label Sept. 11 an act of war, rather than a monstrous criminal act, so that he would have the backing of international law to attack Afghanistan. (11)

The two Security Council resolutions that are widely, though erroneously, believed to back up Washington's military campaign, affirm a country's "inherent right of individual or collective self-defense in accordance with the [UN] Charter." (12) That makes it seem as if the resolutions are saying, "as a defensive measure, the US is allowed to strike against the enemies that attacked on Sept. 11." But the UN Charter says the right of self-defense is a temporary right, invoked to "repel an attack that is actually taking place or to dislodge an illegal occupier." (13) It doesn't accord a country the right to retaliate, or to overthrow an existing government to install a puppet government, or to arrest people in other countries and try them on foreign soil before military tribunals. It says, "you may take up arms to repel an attacker, as the attack occurs, or to drive back an attacker that has invaded and is in the process of subjecting your country to occupation."

The US military campaign hasn't conformed to this definition. Instead, a retaliatory attack was launched against Afghanistan, not because the country's rulers were involved in the Sept. 11 attacks, but because they "harbored" those alleged, on the strength of patently thin evidence, to have planned the attacks. Nowhere in the UN Charter does it say that (a) it is permissible to retaliate for an attack, or (b) you can attack those who harbor those alleged to be responsible for the attack, or (c) that you can wage war against a non-government (al-Qaeda,) or more to the point, an individual (Osama bin Laden.) Indeed, conceived this way, it's clear that this isn't a matter of conflict between governments, governed in principle by the customs of war, but a criminal matter between a government and individuals. Nothing in the Charter says a government may launch a retaliatory attack against another country, because individuals believed to have conspired in the commission of a crime reside in that country. To use an often-cited analogy: The UK cannot launch retaliatory air strikes against Ireland in response to the IRA planting bombs in London. To do so would be considered disproportional, reckless, a crime against peace, and a flagrant violation of international law.

So far, the best Washington has offered of Osama bin Laden's culpability is a videotape showing the al-Qaeda leader had foreknowledge of the attacks. (14) Foreknowledge is not, by itself, evidence of conspiracy, but, from Washington's perspective, that may be beside the point, an issue for lawyers and legal scholars to debate. In terms of pure power politics, it's highly unlikely Washington cares whether bin Laden was directly involved or not. Bin Laden's, and al-Qaeda's, hostility toward the US and the American military presence in the Middle East, elevate the organization to a threat Washington needs to deal with. Hunting down al-Qaeda operatives and executing the most important and fanatical, irrespective of the legality of such action, is doubtlessly a priority. Justifying the actions, and dealing with the public relations implications, is, as always, an ex post facto affair, to be handled by a covey of bought experts and a compliant media. Issues of justice to and justice in war are not impediments to the exercise of US military might, and nor is international law a constraining consideration. Casus belli are looked for after hostilities are initiated, lawyers are set to work after the first bombs are dropped, public relations machinery is set in motion after plans for war are formulated. Justice, legality, morality are not guides; they are ideas whose language is borrowed to justify decisions taken for geopolitical reasons: for power, for national aggrandizement, to protect or advance commercial interests.

So effective is elite Washington in obscuring the engine of its actions, that utter absurdities flourish, rarely remarked upon. People under attack by unlawful combatants (the US military acting on no legal authority) become "unlawful combatants," for defending themselves within their own borders. They are whisked out of their country to stand trial for being "engaged in a war against America's Armed Forces," an action that stands on the same plane as Nazis whisking members of the French resistance out of France to stand trial for "engaging in war against the Third Reich," which is not to draw a uniform equivalence between Taliban and al-Qaeda fighters and the French resistance, but to recognize that all were engaged in war against an invading force. Resisting aggression as a crime elevates the US military to the status of "cops of the world," so that engaging "in a war against America's Armed Forces," becomes tantamount to resisting arrest, and is treated accordingly. Washington surely prizes the role, and acts as if it has been so appointed, but nothing in international law, and no Security Council resolution, authorizes the Pentagon to act as a global constabulary.

That's not, however, going to stop Washington from carving out the role for itself, while fostering the deceit in the minds of the American public that that's the way the rest of the world wants it. A casual review of the US voting record at the UN, with US and Israel on countless occasions siding against every other country in the world, should make plain that there stands a large gulf between Washington and the rest of the world. If ever there was a country more deserving of the obloquy "rogue," and more to be watched out for because of it, it is the United States. So effective is the US propaganda machine that most Americans haven't the slightest idea how far outside the fold of the international community their own government stands.

The truth of the matter is that the US has acted on the basis of no authority whatever, arresting al-Qaeda and Taliban fighters for resisting a US invasion of Afghanistan that Washington had absolutely no authority to undertake. As bad as they are, the detainees are not detainees; they're kidnap victims, spirited out of Afghanistan by a military that has no legal grounds to be in Afghanistan. Moreover, the treatment of the kidnap victims has been nothing short of deplorable, and, itself, illegal. Amnesty international calls the prisoners' treatment "a flagrant violation of international law which cannot be justified under any circumstance." (15)

Unfortunately, ideas of legality can be nothing against visceral fear, too recondite, too far removed from the gnawing fear of being caught in a terrorist attack. Those whose job is propaganda and manipulation and managing the body politic know that all too well. "The aim of practical politics," said H.L. Mencken, "is to menace the public with an endless series of hobgoblins."

So menaced, the American public reacts. "They deserve to be treated as animals," snarl numberless lips. "Who gives a shit about international law? My life and the lives of my family are at stake," thunder others. "Morality? How can you talk about morality when you're talking about the sick fucks who destroyed the World Trade Centre?"

Respect for law is all too easily surrendered, like the liberty Benjamin Franklin warned Americans they shouldn't give up in search of security (you'll soon find yourself with neither). The Achilles heel of international law is the absence of a body to make every country live up to its provisions. The only mechanism of enforcement is citizens. They have, therefore, a special obligation to hold their governments to account, to resist appeals to emotion, to challenge the lies and deceit that would plunge the world still further into chaos and madness and endless bloodshed.

Americans no more want to live in a town where the police do as they please, routinely trampling upon the laws they claim to be upholding, than they should in a world where one country flagrantly violates the international legal order because it can. In the long run, the security of ordinary Americans is hardly safeguarded by lawlessness, where relations between countries accord only to the law of the jungle. "We'll take our chances in the jungle," say some Americans. People who say that should know something about life in the jungle — even for predators, it's nasty, brutish and short.



1.  Press briefing by Ari Fleischer, January 9, 2002, http://www.whitehouse.gov/news/releases/2002/01/20020109-5.html  (back)
2.  Some press reports say the roofs are wooden.  (back)
3.  The administration's interpretation is at odds with Mary Robinson's, the UN's chief human rights officer. "The overwhelming views of legal opinion," said Robinson, "is that they were combatants in an international armed conflict. Their status is defined and protected by the Geneva Conventions of 1949. They are prisoners of war." Reuters, January 16, 2002  (back)
4.  US Defense Secretary Donald Rumsfeld. Roundtable with radio media: AP, BBC, NPR, and VOA. January 15, 2002, http://www.defenselink.mil/news/Jan2002/t01152002_t0115sdr.html  (back)
5.  Globe and Mail, Jan. 15, 2002  (back)
6.  Adam Roberts, professor of international relations at Oxford University "suspects the Americans don't want to treat the detainees as PoWs because they could not interrogate them in detail. Under the Geneva Convention, prisoners are only obliged to provide their name, rank and serial number." Globe and Mail, Jan. 18, 2002  (back)
7.  US Defense Secretary Donald Rumsfeld. Roundtable with radio media: AP, BBC, NPR, and VOA. January 15, 2002, http://www.defenselink.mil/news/Jan2002/t01152002_t0115sdr.html  (back)
8.  DoD News Brief — Secretary Rumsfeld and Gen. Myers, January 11, 2002, http://www.defenselink.mil/news/Jan2002/t01112002_t0111sd.html  (back)
9.  Globe and Mail, Jan. 18, 2002  (back)
10.  Globe and Mail, Jan. 15. 2002  (back)
11.  Thomas Walkom, Toronto Star, Jan. 16, 2002  (back)
12.  Resolution 1373 (2001) and 1377 (2001), http://www.un.org/docs/scres/2001/sc2001.htm. Resolution 1373 is deliciously — and perhaps, deliberately — vague. It reaffirms the "need to combat by all means...threats to international peace and security caused by terrorist acts." The US aggression against Afghanistan might fall under the rubric "combat by all means," except that the Resolution also says this must be done "in accordance with the Charter of the United Nations." The Resolution also calls upon states to "Cooperate, particularly through bilateral and multilateral arrangements and agreements to prevent and suppress terrorist attacks and take action against perpetrators of such acts." This is ambiguous enough that US military actions might be construed to fit this definition.  (back)
13.  Michael Mandel, This War is Illegal and Immoral: It will not Prevent Terrorism, Science for Peace Forum and Teach-In, Dec. 9, 2001, http://globalresearch.ca/articles/MAN112A.html. Much of the argument about the legality of Washington's war on Afghanistan comes from Mandel's talk. Mandel is a professor of law at Osgoode Hall Law School of York University in Toronto.  (back)
14.  Could the translators the Pentagon hired have heard what they wanted to hear, while ignoring what they didn't want to hear? German television arranged for translators familiar with the Saudi dialect to produce their own translation of the bin Laden tape. After reviewing the tape, Dr. Abdel El. M. Husseini said, "I have carefully examined the Pentagon's translation. This translation is very problematic. At the most important places where it is held to prove the guilt of bin Laden, it is not identical to the Arabic." Gernot Rotter, professor of Islamic and Arabic studies at Hamburg University remarked, "The American translators who listened to the tapes and transcribed them apparently wrote a lot of things in that they wanted to hear but that cannot be heard on tape no matter how many times you listen to it." Husseini's and Rotter's comments are cited in Craig Morris, Mistranslated Osama bin Laden Video — the German Press Investigates, Action Report Online, Dec. 23 , 2001, http://www.fpp.co.uk/online/02/01/Laden/tapes9_Monitor.html. The "confession" video is of inferior quality, difficult to hear, images blurry and dark, unlike other bin Laden videos. Inferior video and audio quality are usually taken as telltale signs of a hoax — what you'd except of tapes purporting to show an operation on an alien, Big Foot, or the Loch Ness monster.  (back)
15.  AFP, Jan. 16, 2002  (back)



       Stephen Gowans is a writer and political activist who lives in Ottawa, Canada.

       Please, DO NOT steal, scavenge or repost this work without the expressed written authorization of Swans, which will seek permission from the author. This material is copyrighted, © Stephen Gowans 2002. All rights reserved.

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Published January 28, 2002
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