‘It Was Illegal and Still Is Illegal’ - CounterSpin interview with Marjorie Cohn on the unending US war in Afghanistan

Janine Jackson interviewed author Marjorie Cohn about the unending US war in Afghanistan for the September 13, 2019, episode of CounterSpin. This is a lightly edited transcript.

MP3 Link

Washington Post (8/19/19)

Janine Jackson: Outrage poured in when it was revealed that Donald Trump had invited representatives of the Taliban to talks in the US just days before the anniversary of the September 11, 2001, attacks.

In this, as in everything, it’s advisable to be suspicious of Trump’s maneuvers. But it was still remarkable, the general absence of consideration that moving to end the nearly 18 years of violent devastation in Afghanistan, the killing and terrorizing of tens of thousands of civilians, would be anything but an obscene way to mark that anniversary. Instead, as Joshua Cho noted for FAIR.org, corporate media’s hand-wringing around the longest-running conflict in US history centered on what the Washington Post actually termed “abandon[ing] the country in haste.”

For a different perspective, we’re joined now by Marjorie Cohn, professor emerita at Thomas Jefferson School of Law, and author of, most recently, Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, which is out from Olive Branch Press in a recently updated edition. She joins us now by phone from San Diego. Welcome back to CounterSpin, Marjorie Cohn.

Marjorie Cohn: Thanks so much, Janine.

JJ: Well, Afghanistan had rather dropped from the front page, so some people might have thought that this Camp David invitation, and then disinvitation, it’s not clear what exactly happened, but that that would be the first meeting, or the start of talks. But talks between the US and the Taliban have been going on, haven’t they, for some time; where had those talks got to?

MC: There had been nine rounds of talks between the Taliban and the US government. And they had arrived, reportedly, at a tentative peace deal, which would leave thousands of US troops in Afghanistan. The US would pull out 5,400, of the 14,000 that remain now, within 135 days of the signing of the agreement, and that would reduce the number of troops there to 8,600—which is 200 more than were there when Obama left office.

And in return, the Taliban would reportedly agree not to support international terrorist groups, and would prevent terrorists from using Afghanistan to mount their attacks. Also, the Taliban would conduct political negotiations with the Afghan government, even though a senior Taliban leader told the New York Times, “We do not recognize the (US’s) stooge government” in Kabul.

JJ: Right. Well, because it’s not been on the front page, people might also not know that the violence in Afghanistan, that’s been going on for many, many years now, that it’s gotten worse lately. That in fact, July 2019 was the deadliest month in two years, and that the US, as I understand it, is causing now more civilian deaths than the Taliban.

MC: Yes, that’s correct. So if we were to, hypothetically, pull all troops out of Afghanistan—which is what should happen: pull out all troops, all CIA agents, all mercenaries, and close the US bases there and provide reparations—that would not end the war. There would still be a civil war going on, but many fewer deaths, because the Afghan government militias, which are led by the CIA, are responsible for about seven times as many offensive operations and bombings against the Taliban as the regular Afghan forces, and so if the CIA were to withdraw as well, then the killing would go down. Now, that assumes that the CIA forces would be withdrawn, and even if this tentative peace deal were to go through, there are reports that the US government would want to leave the CIA forces in there.

Marjorie Cohn (Truthout, 9/10/19)

JJ: Let’s pull back a little bit and do what ought to appear in every news account of the US invasion and occupation, but does not, as you wrote for Truthout; amid the criticism of this Camp David invitation, you didn’t really see any consideration of the legality of the US military invasion of Afghanistan in the first place. It was not, in fact, a legal military action.

MC: No, it wasn’t. And yet, people were just dying for revenge in this country, and I guess elsewhere among our allies, but there was almost no pushback at the time, either in the media or among members of Congress, when Bush decided to attack Afghanistan, which was an illegal invasion. The United Nations Charter says that all member states, all member countries, must “settle their international disputes by peaceful means,” and no nation can use military force except in self-defense, or with approval by the Security Council.

Now, this did not satisfy either one of those prongs. It was not lawful self-defense, under Article 51 of the UN Charter, because these were not armed attacks by another state. The 9/11 attacks were carried out by 19 men, 15 of whom came from Saudi Arabia; Afghanistan did not attack us, and there was no imminent threat of an armed attack on the US after 9/11, or the US wouldn’t have waited three weeks before initiating its bombing campaign. And, furthermore, the Security Council did not authorize the invasion.

The Council did pass two resolutions, neither of which authorized the use of force. Resolutions 1368 and 1373 condemned the 9/11 attacks; ordered the freezing of assets, the criminalizing of terrorist activity, the prevention of the commission of—and support for—terrorist attacks; taking necessary steps to prevent terrorism, including sharing information with other countries; and urged the ratification and enforcement of international conventions against terrorism.

And, Janine, what should have happened is that this should have been treated as a crime against humanity, which is what it was; it was not an armed attack by another country. And the US should have submitted the matter to appropriate international bodies, including the UN, the World Court, and contributed money and people-power to the UN Peacekeeping forces. And the Security Council could have established a special criminal tribunal for the 9/11 attacks, the way it did for Yugoslavia and Rwanda; the Montreal Sabotage Convention, which criminalizes the destruction of civilian aircraft while in service, is directly on point and should have been used.

And yet retaliation revenge was what happened. And it was illegal and still is illegal. And of course now, over the 18 years, where we see the quagmire, and the hundreds of thousands of deaths on both sides, people have moved to oppose the war in Afghanistan.

And I think it’s a positive thing, that Trump was ostensibly going to meet with the Taliban—albeit to make himself look good on television—but nevertheless, diplomacy is always better than military action, and, of course, is required by the UN Charter.

JJ: You mentioned the media, and as the US justifications for the invasion have shifted, it seems like corporate media have kind of shifted along with them, you know: “Oh, now we’re freeing Afghan women? Sure, whatever you say.”

Now we see, as Josh Cho noted for FAIR.org, CNN is granting anonymity to officials to say things like, yeah, if we draw down troops—never mind whether they’re being replaced with CIA or really, truly being drawn out—that might end America’s longest-running war, but it “could also trigger a surrender for the US and a betrayal of the Afghan government.” And the Washington Post is talking about the US “giving away its leverage.” I have to wonder, even for your John Bolton s, what is the current Afghanistan plan? What is the vision? Is it just endless war?

Marjorie Cohn: “We see permanent war, and that has gone throughout post-9/11. The Bush administration, the Obama administration, continued those wars, and Obama used drones in seven different countries.”

MC: We see permanent war, and that has gone throughout post-9/11. The Bush administration, the Obama administration, continued those wars, and Obama used drones in seven different countries, illegally, in violation of the UN Charter. And the US,  to pretend that we’re worried about Afghan women, which of course we should be, is really hypocritical, when you see how women are treated in Saudi Arabia, and the fact that 15 of the hijackers came from Saudi Arabia, and Jamal Khashoggi was murdered —a journalist—and yet no pushback at all from the US, because Saudi Arabia is our close ally.

So it’s very hypocritical. And we really ought to get out of there immediately, if not sooner.

JJ: And let me just bring you back, finally, to ways forward, and what can be called for. As we know, for some in corporate media, “diplomacy,” “drawdown,” is just other words for losing, for some in the pundit circles and editorial boards. If we had a broader media debate, with room for diplomatic voices and humane voices, you touched on it before, but what would we be hearing, what would people be calling for?

MC: People would be calling for complete withdrawal of all US troops, all CIA agents, all mercenaries (which is what they call contractors) from Afghanistan, and closing, withdrawing, US military bases from Afghanistan. And then, significantly, paying reparations to the Afghan people, not the Afghan government but the Afghan people, for the destruction that we’ve wreaked in their country for the last 18 years.

JJ: We’ve been speaking with Marjorie Cohn, professor emerita, Thomas Jefferson School of Law, former president of the National Lawyers Guild and author, most recently, of Drones and Targeted Killing: Legal, Moral and Geopolitical Issues,  an updated version is out now from Olive Branch Press. Thank you so much, Marjorie Cohn, for joining us this week on CounterSpin.

MC: Thank you, Janine.