Speaking to tens of thousands of U.C. Berkeley students on May 21, 1965, Norman Mailer bellowed, “War is the health of a totalitarian state. And peace is its disease.” In the same breath, Mailer said, “No philosophy of government can occupy nine-tenths of the globe without being altered to its roots.”
The occasion was Vietnam Day, the 35-hour, antiwar marathon on the Berkeley campus. It was Mailer’s first speech against the war in Vietnam, but those words resound today. Or they should, including at the New York Times, which, like the courts and the Congress, has failed ever since, to the point of constitutional malfeasance, in its acquiescence to the illegal wars of the United States.
The result: As Mailer in a sense foretold, since 1965 the philosophy of government in the United States has indeed changed, in general from liberty and democracy grounded in the Bill of Rights and the finest Constitution in the history of the Western world, to an obsession with security within the most secure state in history, set apart in the northern western hemisphere and cradled between two great oceans.
To the extent that a threat exists today, it is homegrown, incubated in Eisenhower’s “military-industrial complex”—today a military-intelligence-surveillance-complex—which, as we've recently learned, is ominously inwardly focused.
This wealth-robbing, rights-robbing, multifarious machine, which appears to wag the executive, the legislature, the judiciary, and the press—the entire constitutional scheme—makes serial war of one sort or another around the world. That, in turn, fuels the hatred that engenders the terrorism that creates the security obsession that sells more war. As Mailer warned, it is the positive feedback loop of a totalitarian state.
Constitutional malfeasance and the Times?
Here is the backstory, beginning in this instance with Vietnam.
In 1967 the Lawyers Committee on American Policy Toward Vietnam, chaired by Richard Falk, and which included some of the most prominent international law scholars and foreign policy intellectuals at the time—Quincy Wright, Hans Morgenthau, and Stanley Hoffmann, among others—wrote in Vietnam and International Law, “To the extent that the war actions by the United States in Vietnam violate international treaties, they also violate the United States Constitution.”
How so? The supremacy clause of the Constitution (Article VI, paragraph 2) states that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”
The single most important treaty ratified by the United States is the UN Charter, the cardinal rule of which (Article 2, pararaph 4) prohibits “the threat or use of force” by states in the conduct of their international relations.
Thus, the Lawyers Committee argued that because U.S. war actions in Vietnam “above all … violate the Charter of the United Nations … they also violate the U.S. Constitution.”
In short, when the United States resorts to the threat or use of force in violation of the UN Charter, as it did in Vietnam in the 1960s, Iraq in 2003, in Pakistan and Yemen in recent years, and against Syria in recent days, it also violates the United States Constitution. The U.S. press, including the New York Times, employs no editorial principle that holds the war-making of the government to this constitutional standard.
Crucially, the Lawyers Committee on Vietnam also observed that “because these [war] actions” in Vietnam “violate the supreme law of the land, the question as to which branch of the Government may delegate to another branch legal powers to authorize [the war actions] becomes irrelevant. No branch of Government is permitted directly or indirectly to violate the Constitution.” Thus, under the U.S. Constitution, the Congress may not declare war, and the president may not conduct war, in violation of the UN Charter.
Also, the Nuremberg Principles define a “crime against peace” as “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances.” The major Nazi officials were tried and convicted at Nuremberg of “conspiracy to commit aggression” and “the commission of aggression.” These are the very same crimes committed by U.S. government officials who planned and waged illegal war in Vietnam and Iraq.
In his opening remarks as chief judge at Nuremberg, U.S. Supreme Court justice Robert H. Jackson famously said: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” Thus, the rules of international law that we Americans apply to others should also be applied to ourselves.
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Enter, again, the New York Times.
In our book, The Record of the Paper: How the New York Times Misreports US Foreign Policy (Verso 2004), which I coauthored with Richard Falk, and which examined the Times’ coverage of U.S. military and foreign policy from the perspective of international law, we found that, with respect to the 2003 invasion of Iraq, the Times never mentioned the words “UN Charter” or “international law” in any of its seventy editorials on Iraq from September 11, 2001 to March 23, 2003 (the start of the invasion). It simply never challenged the legality under international law of the threatened U.S. invasion of Iraq.
Likewise, the Times seldom mentioned, if at all, the Charter’s prohibition of the threat and use of force in its coverage of war actions by the United States in Vietnam.
Consistent with its journalistic practice, the Times to date has not mentioned the UN Charter’s Article 2(4) prohibition against the threat or use of force in its news and editorial coverage of the Obama administration's threats to bomb Syria. Note that the standard here is the mere mention of this fundamental rule of modern international law by the leading news organization in the United States.
Thus, in a report published on August 28, “West Debates Legal Rationale for Syria Strike,” the Times’ Steven Erlanger wrote about the international law context of the U.S. threat to bomb Syria without mentioning Article 2(4) specifically or the prohibition against the threat or use of force generally.
On August 27, the editors at the Times editorial page approved for publication an op-ed piece with the title, “Bomb Syria, Even If It Is Illegal.”
That sentiment apparently reflected the consensus view within the Times’ editorial board, as presented in an August 27 editorial, “Responding to Syrian Atrocities,” which called on President Obama to bomb Syria without an authorizing resolution from the UN Security Council.
Also on August 27, Andrew Rosenthal’s blog page on the Times’ online edition observed that President Obama should, “at a minimum, secure backing from legislative leaders for military action” against Syria, although such backing would fulfill neither constitutional nor international law standards for a legal use of force.
On August 29, a Times’ editorial titled, “More Answers Needed on Syria,” contradicted nearly every major feature in its editorial two days earlier, except for one: it never mentioned the UN Charter’s prohibition against the threat or use of force, and allowed that President Obama could bomb Syria if he did a better job of explaining in his view why he should.
On August 31, a Times’ editorial, Absent on Syria, argued: “The [UN] Security Council should have quickly formulated a robust response, including tough sanctions, to the chemical weapons attack, near Damascus on Aug. 21. Instead, Russia and China, which have long protected Mr. Assad, have thwarted any Council action. They seemed to care little that chemical weapons use is a war crime, that the weapons are banned under international treaties and that as veto-wielding Council members, they, along with the United States, France and Britain, have a responsibility to ensure these legal commitments are upheld.”
Perhaps if the Times had a journalistic history of holding its own government to its own commitments under international law, perhaps if the facts were established with respect to the party responsible for the recent use of chemical weapons in Syria, perhaps if the U.S. hadn't lied about Iraqi WMD, and perhaps if U.S.-led UN economic sanctions against Iraq in the 1990s hadn't caused the deaths of hundreds of thousands of Iraqi children, this editorial might make some moral or legal sense.
Overall, the plea here to conform U.S. foreign policy and U.S. press policy to international law is not an appeal to abide by empty legalisms. It is a demand, perhaps a selfish one, to put a stop to the illegal war-making of the United States so as to rescue the Bill of Rights and the U.S. Constitution.
With respect to the calamitous war in Syria, instead of a U.S. military attack as somehow being the remedy for the human suffering that is taking place there, including the crimes committed by both the Syrian government forces and the armed rebels against civilians, the United Nations, with U.S. support, should greatly accelerate its efforts to mediate and resolve the conflict along the lines of the Geneva Communiqué of June 2012.
This would have been a far less disingenuous course of action for the Times editorial page to recommend, an opportunity to break its pattern of supporting the illegal war-making of the United States, and a chance to begin to mend its contribution to the dissolution of the rule of enlightened law and civil liberties here.