Robert Jensen
Department of Journalism
University of Texas
Austin, TX 78712
work: (512) 471-1990
rjensen@uts.cc.utexas.edu
copyright Robert William Jensen 1998
Texas Observer
January 15, 1999
By Robert Jensen
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 authorize 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 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.