Using the McChrystal Moment to Raise a Forbidden Question
This article was originally published at Global Research. It has been republished here with permission from the author.
There are many questions to ask about the war in Afghanistan. One that has been widely asked is whether it will turn out to be “Obama’s Vietnam.” This question implies another: Is this war winnable, or is it destined to be a quagmire, like Vietnam? These questions are motivated in part by the widespread agreement that the Afghan government, under Hamid Karzai, is at least as corrupt and incompetent as the government the United States tried to prop up in South Vietnam for 20 years.
Although there are many similarities between these two wars, there is also a big difference: This time, there is no draft. If there were a draft, so that college students and their friends back home were being sent to Afghanistan, there would be huge demonstrations against this war on campuses all across this country. If the sons and daughters of wealthy and middle-class parents were coming home in boxes, or with permanent injuries or post-traumatic stress syndrome, this war would have surely been stopped long ago. People have often asked: Did we learn any of the “lessons of Vietnam”? The US government learned one: If you’re going to fight unpopular wars, don’t have a draft – hire mercenaries!
There are many other questions that have been, and should be, asked about this war, but in this essay, I focus on only one: Did the 9/11 attacks justify the war in Afghanistan?
This question has thus far been considered off-limits, not to be raised in polite company, and certainly not in the mainstream media. It has been permissible, to be sure, to ask whether the war during the past several years has been justified by those attacks so many years ago. But one has not been allowed to ask whether the original invasion was justified by the 9/11 attacks.
However, what can be designated the “McChrystal Moment” – the probably brief period during which the media are again focused on the war in Afghanistan in the wake of the Rolling Stone story about General Stanley McChrystal, the commander of US and NATO forces in Afghanistan, which led to his resignation – provides the best opportunity for some time to raise fundamental questions about this war. Various commentators have already been asking some pretty basic questions: about the effectiveness and affordability of the present “counterinsurgency strategy” and even whether American fighting forces should remain in Afghanistan at all. But I am interested in an even more fundamental question: Whether this war was ever really justified by the publicly given reason: the terrorist attacks of September 11, 2001.
This question has two parts: First, did these attacks provide a legal justification for the invasion of Afghanistan? Second, if not, did they at least provide a moral justification?
I. Did 9/11 Provide Legal Justification for the War in Afghanistan?
Since the founding of the United Nations in 1945, international law with regard to war has been defined by the UN Charter. Measured by this standard, the US-led war in Afghanistan has been illegal from the outset.
Marjorie Cohn, a well-known professor of international law, wrote in November 2001:
[T]he bombings of Afghanistan by the United States and the United Kingdom are illegal.
In 2008, Cohn repeated this argument in an article entitled “Afghanistan: The Other Illegal War.” The point of the title was that, although it was by then widely accepted that the war in Iraq was illegal, the war in Afghanistan, in spite of the fact that many Americans did not realize it, was equally illegal. Her argument was based on the following facts:
First, according to international law as codified in the UN Charter, disputes are to be brought to the UN Security Council, which alone may authorize the use of force. Without this authorization, any military activity against another country is illegal.
Second, there are two exceptions: One is that, if your nation has been subjected to an armed attack by another nation, you may respond militarily in self-defense. This condition was not fulfilled by the 9/11 attacks, however, because they were not carried out by another nation: Afghanistan did not attack the United States. Indeed, the 19 men charged with the crime were not Afghans.
The other exception occurs when one nation has certain knowledge that an armed attack by another nation is imminent – too imminent to bring the matter to the Security Council. The need for self-defense must be, in the generally accepted phrase, “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Although the US government claimed that its military operations in Afghanistan were justified by the need to prevent a second attack, this need, even if real, was clearly not urgent, as shown by the fact that the Pentagon did not launch its invasion until almost a month later.
U.S. political leaders have claimed, to be sure, that the UN did authorize the US attack on Afghanistan. This claim, originally made by the Bush-Cheney administration, was repeated by President Obama in his West Point speech of December 1, 2009, in which he said: “The United Nations Security Council endorsed the use of all necessary steps to respond to the 9/11 attacks,” so US troops went to Afghanistan “[u]nder the banner of . . . international legitimacy.”
However, the language of “all necessary steps” is from UN Security Council Resolution 1368, in which the Council, taking note of its own “responsibilities under the Charter,” expressed its own readiness “to take all necessary steps to respond to the terrorist attacks of 11 September 2001.”
Of course, the UN Security Council might have determined that one of these necessary steps was to authorize an attack on Afghanistan by the United States. But it did not. Resolution 1373, the only other Security Council resolution about this issue, laid out various responses, but these included matters such as freezing assets, criminalizing the support of terrorists, exchanging police information about terrorists, and prosecuting terrorists. The use of military force was not mentioned.
The U.S. war in Afghanistan was not authorized by the UN Security Council in 2001 or at anytime since, so this war began as an illegal war and remains an illegal war today. Our government’s claim to the contrary is false.
This war has been illegal, moreover, not only under international law, but also under U.S. law. The UN Charter is a treaty, which was ratified by the United States, and, according to Article VI of the US Constitution, any treaty ratified by the United States is part of the “supreme law of the land.” The war in Afghanistan, therefore, has from the beginning been in violation of US as well as international law. It could not be more illegal.
II. Did 9/11 Provide Moral Justification for the War in Afghanistan?
The American public has for the most part probably been unaware of the illegality of this war, because this is not something our political leaders or our corporate media have been anxious to point out. So most people simply do not know.
If they were informed, however, many Americans would be inclined to argue that, even if technically illegal, the U.S. military effort in Afghanistan has been morally justified, or at least it was in the beginning, by the attacks of 9/11. For a summary statement of this argument, we can turn again to the West Point speech of President Obama, who has taken over the Bush-Cheney account of 9/11. Answering the question of “why America and our allies were compelled to fight a war in Afghanistan in the first place,” Obama said:
We did not ask for this fight. On September 11, 2001, nineteen men hijacked four airplanes and used them to murder nearly 3,000 people. They struck at our military and economic nerve centers. They took the lives of innocent men, women and children without regard to their faith or race or station. . . . As we know, these men belonged to al Qaeda – a group of extremists who have distorted and defiled Islam. . . . [A]fter the Taliban refused to turn over Osama bin Laden – we sent our troops into Afghanistan.
This standard account can be summarized in terms of three points:
1. The attacks were carried out by 19 Muslim members of al-Qaeda.
2. The attacks had been authorized by the founder of al-Qaeda, Osama bin Laden, who was in Afghanistan.
3. The US invasion of Afghanistan was necessary because the Taliban, which was in control of Afghanistan, refused to turn bin Laden over to US authorities.
On the basis of these three points, our political leaders have claimed that the United States had the moral right, arising from the universal right of self-defense, to attempt to capture or kill bin Laden and his al-Qaeda network to prevent them from launching another attack on our country.
The only problem with this argument is that all three points are false. I will show this by looking at these points in reverse order.
1. Did the United States Attack Afghanistan because the Taliban Refused to Turn Over Bin Laden?
The claim that the Taliban refused to turn over Bin Laden has been repeatedly made by political leaders and our mainstream media. Reports from the time, however, show the truth to be very different.
A. Who Refused Whom?
Ten days after the 9/11 attacks, CNN reported:
The Taliban . . . refus[ed] to hand over bin Laden without proof or evidence that he was involved in last week’s attacks on the United States. . . . The Taliban ambassador to Pakistan . . . said Friday that deporting him without proof would amount to an ‘insult to Islam.’
CNN also made clear that the Taliban’s demand for proof was not made without reason, saying:
Bin Laden himself has already denied he had anything to do with the attacks, and Taliban officials repeatedly said he could not have been involved in the attacks.
Bush, however, “said the demands were not open to negotiation or discussion.”
With this refusal to provide any evidence of bin Laden’s responsibility, the Bush administration made it impossible for the Taliban to turn him over. As Afghan experts quoted by the Washington Post pointed out, the Taliban, in order to turn over a fellow Muslim to an “infidel” Western nation, needed a “face-saving formula.” Milton Bearden, who had been the CIA station chief in Afghanistan in the 1980s, put it this way: While the United States was demanding, “Give up bin Laden,” the Taliban were saying, “Do something to help us give him up.” But the Bush administration refused.
After the bombing began in October, moreover, the Taliban tried again, offering to turn bin Laden over to a third country if the United States would stop the bombing and provide evidence of his guilt. But Bush replied: “There’s no need to discuss innocence or guilt. We know he’s guilty.” An article in London’s Guardian, which reported this development, was entitled: “Bush Rejects Taliban Offer to Hand Bin Laden Over.” So it was the Bush administration, not the Taliban, that was responsible for the fact that bin Laden was not turned over.
In August of 2009, President Obama, who had criticized the U.S. invasion of Iraq as a war of choice, said of the U.S. involvement in Afghanistan: “This is not a war of choice. This is a war of necessity.” But the evidence shows, as we have seen, that it, like the one in Iraq, is a war of choice.