Glenn Greenwald asks a provocative question: Would Turkey be justified in assassinating or kidnapping a Turkish citizen named Fethullah Gulen, who resides in Pennsylvania. Turkey’s President Recep Tayyip Erdogan has accused Gulen of being a terrorist who helped orchestrate the recent military coup attempt in Turkey.
What causes Greenwald to ask such a question? The situation is strikingly similar to the events leading up the U.S. invasion and occupation of Afghanistan, a brutal occupation that has taken the lives of countless Afghan citizens and that continues to this day, 15 years later.
Let’s recall what happened back then because while most U.S. officials now concede that the U.S. war on Iraq was a “mistake,” many of them continue to maintain that the U.S. war on Afghanistan was a “good” war — a justified war.
Their rationale? They say that since the Afghan government was “harboring” Osama bin Laden, who U.S. officials suspected had helped orchestrate the 9/11 attacks, it was entirely justifiable for the U.S. government to invade and occupy the country.
I’ll expand on Greenwald’s question: Since the U.S. government is “harboring” Fethullah Gulen, who has been accused of helping orchestrate the violent overthrow of his own government, does that mean that Turkey would be justified in invading and occupying the United States?
Of course, one can reply: “Jacob, even if Gulen is guilty of what they’re accusing him of, that doesn’t mean that the U.S. government is ‘harboring’ him.”
And in fact, that’s right. Just because a suspected terrorist is residing within a country doesn’t mean that the government of that country played any role in the wrongdoing. It’s entirely possible for international criminal activity to take place on the part of a person living within a country without the complicity of the government of that country. But of course the principle also applies to bin Laden and the Taliban government.
Obviously the U.S government could simply comply with Erdogan’s demand for Gulen and turn him over to Turkish officials for trial back in Turkey. But U.S. officials know that that’s not the way the things work under international law. In order to secure Gulen’s turnover, Turkey must comply with the terms of the extradition treaty that exists between Turkey and the United States. The terms of the treaty require Turkey to provide the United States will sufficient evidence that he is guilty of the crime. No evidence, no extradition.
In the case of Afghanistan and the United States, there was no extradition treaty. Therefore, under international law, Afghanistan had no legal obligation to deliver bin Laden to the United States.
Nonetheless, President George W. Bush demanded that the Taliban government, which ruled Afghanistan, deliver bin Laden into U.S. custody. Under international law, the Taliban government was entitled to refuse Bush’s demand, much as Cuba’s Fidel Castro has legally refused U.S. demands to turn over accused U.S. criminals. No extradition treaty, no requirement to turn anyone over under international law.
Even though the Afghan government had no legal obligation to turn bin Laden over to U.S. officials, however, it responded to Bush’s extradition demand in same way that U.S. officials have responded to Erdogan’s demand: by requesting Bush to provide evidence of bin Laden’s complicity in the 9/11 attacks. If such evidence were provided, the Taliban government stated, it would be willing to turn bin Laden over to an independent third country for trial.
Bush refused the Taliban government’s offer and made it clear that his extradition demand was unconditional: Turn bin Laden over, even without an extradition treaty and without any evidence being provided of his complicity in the 9/11 attacks. Otherwise, suffer a military invasion that would encompass not only bringing bin Laden to justice but also constitute a regime-change operation that would oust the Taliban regime from power and replace it with a U.S.-approved regime.
When the Taliban regime refused to comply with Bush’s unconditional demand, Bush ordered his army to undertake the invasion and subsequent occupation of Afghanistan. Ever since, U.S. officials have smugly justified their invasion by claiming that Afghanistan was “harboring” bin Laden. Their claim of “harboring,” however, never involved any evidence that the Afghan government was complicit in the 9/11 attacks. Instead, the “harboring” claim is based on the Afghan government’s refusal to comply with Bush’s unconditional extradition order, an order that the Taliban, under international law, was not required to comply with — any more than the U.S. government is required to comply with an unconditional order to deliver Gulen to Turkey.
Thus, from the very beginning the U.S. war on Afghanistan was as illegal under international law as the subsequent U.S. war on Iraq.
Moreover, under the U.S. Constitution the president is precluded from waging war against a nation-state without a declaration of war from Congress. There was no congressional declaration of war against either Afghanistan or Iraq. That means that both wars were illegal under U.S. law.
At the outset of both wars, U.S. officials made a conscious decision to not keep count of Afghans and Iraqis who U.S. forces were killing. It didn’t matter to them. What does matter though is that the killing of every single person in Afghanistan and Iraq by U.S. forces was illegal under both U.S. law and international law.
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.
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