Iraq, human rights concerns, and legal justifications for war

Michael Zimmer zimmermi at
Wed Aug 17 13:52:37 PDT 2005

It may be that the actual motivating reason for the war in Iraq has not
been set forth in public. During the debates in the last election, John
Kerry asked point blank whether President Bush disavowed a permanent US
military presence by way of permanent US military bases in Iraq.  The
President failed to answer that question and, as far as I can tell, the
Administration has failed to answer that question ever since.  Given that
our military forces have been forced out of Saudi Arabia, it would not be a
surprise if that were a motivating objective for invading Iraq in the first
instance, which objective continues.  From what I gather, many in the world
assume that to be an objective of US policy.  Talk of WMD or establishing
democracy may just be that, talk.

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8194 fax

             <SLevinson at law.ut                                          To 
   >                 "Scarberry, Mark"                   
             Sent by:                  <Mark.Scarberry at>,    
             conlawprof-bounce         <conlawprof at>         
             s at                                           cc 
             08/17/05 03:30 PM         RE: Iraq, human rights concerns,    
                                       and legal justifications for war    

Mark Scarberry writes "it is clear that the administration's goal of
planting a human rights respecting democracy in the middle of the Arab
world is in part designed to advance international peace and security.
Whatever the President believed when he was only a candidate, he (among
others) had a change of heart after 9/11.   Thus making life better for the
Iraqis was at least instrumentally a reason for the Iraq invasion. "

My friend Jack Balkin has written about the phenomenon of "ideological
drift" (best exemplified by the devotion of the Philip Morris Co. to an
"absolute" freedom of speech even as many people on the left support the
suppression of "hate speech").  I think that one of the things we have seen
is the embrace of quite radical, indeed utopian, Wilsonianism by many
people who would define themselves as "conservatives" even as many
traditional liberals are embracing views more similar to those put forth by
conservative critics of "wars to end wars" and the like.  (And, of course,
such visions of national mission and presidential power bring with them
redefinitions of what the Constitution permits.)

I confess that I'm torn about this, since I continue to find the rhetoric
and vision of the "internaional human rights community" attractive in lots
of respects.  It was Jimmy Carter's achievement to make that an important
part of American policy (to the derision of most "realist" conservatives at
the time), and I'd hate to see it given up.  On the other hand, as David
Rieff and others have demonstrated, the road to hell is indeed paved with
good intentions, even if one concedes, arguendo, Mark's point that Paul
Wolfowitz's heart was pure (which in a sense it probably was, unlike Dick
Chency, who is simply implausible as a person who cares about human rights
than, say, Henry Kissinger).

I suppose that Congress can "declare war" on another country for any reason
it wishes or, perhaps, even authorize a president to go to war whenever a
president thinks it would make the world better.  The question is whether
it is even remotely plausible to believe that Congress would have passed
the AUMF had it not been for the heavy reliance on WMD and nuclear weapons,
and I think the answer is, beyond a reasonable doubt, no.  So the legal
question is whether an AUMF passed on those assumptions, even if it
mentioned, in passing, democracy and human rights, can be used to justify
the Administration's current policies (assuming we have the slightest idea
of what those policies in fact are).

I hope that Mark's first classes are going well.

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