When the missiles and bombs rained down on Iraq in December, the irony was striking, and painfully obvious: to force Iraq to comply with United Nations Security Council resolutions concerning weapons inspections, the United States and Great Britain violated the U.N. Charter with an illegal attack. To enforce international law, Clinton and Blair violated international law. I thought the irony too obvious to ignore, even for the normally compliant mainstream press. I was wrong. The issue was, in the words of one reporter I talked to, “the question that can’t be raised.”
The story is worth pondering, not simply to beat up on the reporters covering (and covering up) this latest U.S. act of aggression, but more importantly to remind us that when we most need an independent and critical press – when the nation goes to war and human life is on the line – we can expect precious little independence or criticism.
The facts are easily summarized: The U.N. Charter, the foundational document for international law, provides for military action by one member state against another in only two situations. One is when a state is under direct armed attack. In all other situations, nations must first appeal to the Security Council to resolve disputes, and only the Security Council can authorize the use of force.
In December, Iraq was attacking no one. Yet Bill Clinton and Tony Blair did not request authorization for the bombing raids from the Security Council – knowing they would be turned down. So, unless existing Security Council resolutions authorized individual member states to take independent military action, the attack on Iraq was illegal. Did such authorization exist? State Department bureaucrats claimed it did, and when the mainstream press raised the question at all, it mostly dutifully reported that claim without subjecting it to even minimal scrutiny. Such scrutiny would reveal that none of the existing resolutions authorizes such an attack.
Michael Ratner, an international law expert with the Center for Constitutional Rights who has litigated a number of war crimes cases, said the United States claim was that Iraqi violations of Security Council Resolution 687 (the April 3, 1991, cease-fire resolution) revived Resolution 678 (the November 29, 1990, resolution that authorized nations to assist Kuwait in expelling Iraq after the invasion). But as Ratner pointed out, “The cease-fire was entered into by the U.N., and only the U.N. can determine if there is a breach.”
Francis Boyle, a professor of international law at the University of Illinois College of Law at Champaign, who opposed the 1991 Gulf War, said that “at least President Bush went through the motions” and got a Security Council resolution and authority from Congress under the War Powers Act to support that war. Clinton had neither, he said. “Clinton is standing naked before the world in this aggression, except for a British fig leaf,” Boyle said.
In fact, the relevant resolutions appear to confirm that no reasonable case for the Clinton position can be made. (The resolutions are available through the U.N. website at www.un.org/, and a better organized list is at www.fas.org/news/un/iraq/sres/.) If a credible, and in fact compelling, legal analysis suggested the bombing was illegal, why was this the question that could not be raised? Precisely because the analysis was too compelling. The answer would have put journalists in the position not just of saying that the emperor has no clothes, but that the emperor is a war criminal. And it’s hard to get the emperor to answer your questions at a press conference when you’ve pointed out his nakedness.
Still, the question nags: a reporter need not have framed the issue quite so harshly, and every reporter knows how to finesse the system to inject dissenting views. Why was it so difficult for journalists even to raise the question and use sources who could make the obvious points? Certainly some journalists, like their fellow citizens, get caught up in war hysteria, and simply don’t care about distractions such as international law. In other cases, reporters might make the effort, only to find their stories spiked by more “patriotic” editors.
But from my own experience as a journalist and as an observer of journalism, I know it can sometimes be more complex. My interaction with one journalist gives some hints about just how hard it is to buck the tide when the United States goes to war. I happened to be traveling the day after the bombing started. I picked up the local paper and read a story by a staff reporter, headlined “Q&A: Answers to key questions about the attack.” One of those questions was the legality of the bombing. Instead of answering it fully, the story simply parroted the administration’s standard line: existing U.N. resolutions give us the authority to bomb. No critique of that position was offered.
I happen to know this reporter (we’ll call him Joe), and I know him to be a thoughtful person, both about international affairs and the limits of mainstream news media. So, I called Joe and suggested his story was incomplete. I offered the names of several legal experts who could provide the analysis. Joe said that he was working on a story for the next day about local experts’ reactions to the bombing and that he would keep my points in mind. The next day’s story included some critical views of the bombing, but mostly on pragmatic grounds. The local human-rights lawyer tapped for comment sidestepped the issue, acknowledging that there was no U.N. authority for the attack, but adding that “‘legal’ may not be the most important concept here.”
So, Joe’s first story raised the question but buried it under administration obfuscation. The second story buried it further by giving the administration’s distortions the blessing of a human-rights lawyer.
A few days later, Joe and I talked in detail about the incident. He said that initially he had felt he had struck a blow for critical journalism simply by including the legal question in the first day’s Q&A, since most papers were ignoring the issue completely. My call had caught him off-guard, he said, and made him think twice about his small victory. Joe said he had thought that the way in which he had written the story would telegraph to readers that the administration’s rationalization was shaky, but that I was probably right in suggesting that wouldn’t happen. Reporters often sneak in “a coded reference to some frightening topic, but don’t realize that readers don’t know the code,” he said.
When I pressed the critique, suggesting that his second story had not been an improvement, he bristled a bit. He fell back on a defense of neutral procedures. He had been given an assignment to get expert reaction. He had called a variety of experts, most of whom he did not know well enough to know their position. They had said what they said, and he put it in the paper. But given that he knew a compelling alternative analysis existed and he knew who could provide it, I responded, had he not failed readers by ignoring it in the story?
Joe countered: His assignment was to get expert reaction, not to get all possible expert reactions or any specific reaction. The more I pressed, the more he leaned on the neutrality argument. Such an argument is common from journalists. What made the interaction with Joe somewhat surreal is that he and I have had a number of discussions over the past decade about the limits of mainstream journalism and the problems with the cult of objectivity and neutrality. We had talked many times about how structural forces limited the political spectrum in the United States. Yet, when pressed, he was relying on a modified and slightly more deft version of the same old arguments.
We split the lunch check and parted on friendly terms. I still consider him one of the more thoughtful reporters I know. Despite our disagreements about particulars of this story, we weren’t far apart on our critique of the industry. As Joe put it, “This great machine decides what the questions are, and we scribes implement the script.” And on this story, we both knew, the script called for no discussion of simple points that would lead to simple conclusions: that the U.S. attack was illegal, and the U.S. president and top advisers should be hauled into international court and convicted of war crimes.
Robert Jensen is an associate professor in the Department of Journalism at U.T.—Austin.