Why US Media Ignores International Law Insights from Downing Street Memos

Jay Rosen's latest essay deals with why the Downing Street memos weren't originally covered by the US media, and quotes Josh Marshall as saying, "New stories have a 24 hour audition on the news stage, and if they don’t catch fire in that 24 hours, there’s no second chance."

But now with the Internet, the attention span of news editors have been extended by Internet Activism and political blogs. Rosen says that "when the second look was taken, some key editors judged themselves at fault" and concludes that this is "called winning on appeal."

There are many other stories that have broken over in Britain both before the war and after the war that have failed to break through the US media bubble, and deserve a second look and "appeal" to US editors and investigative journalists.

The US bureau chief of the Guardian of London Julian Borger describes the myopia of the US media in an interview with the Echo Chamber Project:

If a story breaks abroad, especially in Britain, and the American press haven't got there, the instinctive reaction is, "Well, Ah. Those Brits -- Who knows if it's true?" And there's almost more of a tendency to ignore the story rather than even to check it out. And I found that again and again. If a story breaks in Britain, there's almost the automatic reaction is "Ah. It's the British press. It's tabloid. It's sensational" -- which is justified in many, many instances. The tabloid press and some of the broadsheet press in Britain can be fairly wild, and a lot of unsubstantiated stories get out. But on top of that instinctive reaction of "Well, it must be sensational because it was in the British press" is a reluctance to check it out properly. Or an over-readiness to accept assurances from the institutions -- the White House, whatever -- that although -- "There's nothing to the story. It's just a British story. Ignore it." There's a lack of -- almost a lack of hunger when it comes to stories that question the Administration's position. Until, that is, the Administration was so weakened by the failure of any WMD to appear. There was almost a turning of tides sometime last year, in 2003, when you suddenly saw a greater readiness to go over these stories. It was like the herd changing direction. It was very visible.

The tide seems to be shifting again with the Downing Street Memos because they provide documentary evidence for theories about the justifications and true motivations for the war that have long been suspected but never confirmed by primary sources or documents.

Almost all of the focus in the US media up to this point has been on the question of WMD and the intelligence around it, but this is only half of the story of how the Bush Administration sold this war. The other half has to do with how they used the UN as a legal pretext for going war, and the documentary evidence has started to pour out of the UK press like a sieve.

Yesterday The London Times published yet another "Downing Street" memo -- legal advice that goes through all of the options that the United Nations could be used as a pretext for going to war in Iraq -- the Associated Press actually published the same document in PDF on Saturday.

What is clear is that the United Kingdom cares about the normative standards of International Law while the United States could care less about what the rest of the world thinks.

There are new revelations regarding the United States' controversial positions on International Law in this latest memo, but since there has never been a news peg for Iraq and International Law in the United States up to this point, then this latest memo will be inevitably be completely ignored by the US media.

But there are some revealing insights that confirm that the UK had many of the same doubts that academics have had about the legality of the war

What does this legal document transcribed by the The London Times and published in full by the Associated Press reveal about the United States and International Law?

The United States was the only country in the world that was claiming that we didn't need explicit authorization from the UN to enforce UN resolutions by invading Iraq and toppling their government. Not even our closest ally of Britain believed that this was true as revealed yesterday by the legal advice from the UK Foreign and Commonwealth Office that was attached as an annex to the July 21, 2002 Cabinet Office briefing paper:

It is for the Council to assess whether any such breach of those obligations has occurred. The US have a rather different view: they maintain that the assessment of breach is for individual member states. We are not aware of any other state which supports this view.

"Not aware of any other state which supports this view" -- The US media should've realized that the US was the only country in the world who was asserting the authority to invade Iraq without further permission. This wasn't that hard to determine by paying close attention to the arguments of other countries that were coming from the floor of the United Nations leading up to the war in Iraq.

It also would've very been clear if they would've interviewed a wide range of International Legal experts and been able to make an informed subjective judgment. You could also observe Britain's behavior and extreme perseverance for going after explicit authorization in a 2nd Security Council Resolution to conclude that the UK didn't think the US' alleged enforcement authorization was legitimate.

But the media just uncritically repeated the Bush Administration's authority to invade Iraq for five straight months because they weren't getting any handouts of dissent from the Democrats on this issue. The media became an echo chamber to the countdown towards war after the Democrats and Republicans authorized the military intervention in October 2002, and the UN was just a real politick sideshow because war was inevitable as far as the media were concerned.

As CBS White House Correspondent Bill Plante told us in an interview last summer:

But if you take it as a given, as I've already suggested to you that we did, that the administration was hell-bent on going to war, then you could only point out the steps that were being taken down that path. Despite the fact that there were no weapons of mass destruction found, and despite the fact that the international community disagreed.

I pressed Rosen on why the media failed to question the legality of the Iraq war from the perspective of International Law, and Rosen told me:

If you don't think international law is all that important and binding on the commander in chief of the United States military, then what's true about international law is still not going to ultimately be a factor. So, journalists often get caught in situations where one group of people are saying one thing and others saying another thing. In order for them to say, "Well, no, that's not right and this is right and the truth is here." They have to not only go out and investigate, but they have to have a kind of value system -- a set of priorities -- underlying that. So if journalists in the United States were believers in international law, and thought you had to have that for every United States military action, and that was a settled conviction in their minds, the mind of their publisher, the mind of their editor, and their readers -- Then yes, they could read off the facts and say, "Something's wrong here." But the situation's a lot murkier than that. And international law is sometimes respected and sometimes not.

So since the Republicans and Democrats don't think International Law is all that important and the American people think it's boring, then it's the end of story for the US media. Despite the fact that we're the only country in the world that is trying to make certain claims, the only thing that matters to our media is that there is no Congressional debate or political opposition coming from a critical mass of Senators and House Representatives.

I provide some additional context below for how this latest memo on the UK's legal advice shows how myopic the mainstream media have been towards the US' international legal claims

Sean Murphy, who is an International Law professor at George Washington University, characterized the pre-war performance of the US media in an interview with the Echo Chamber Project:

I think that with respect to the media, we saw a tremendous amount of coverage, but there seemed to be an unwillingness to test some of the very basic elements of this normative system that was out there, and asking hard questions. For instance, with respect to the interpretation of Security Council Resolutions, there seemed to be very little effort to, in any kind of systematic way, go through what the Resolutions were, what they said, what they didn’t say, whether it was credible to pin an authorization to use force on them or not. There was very little coverage to that effect, I believe. When there was coverage, it did tend to be, you know, ‘This expert says that. That expert says this.’ And that was the end of the matter. With regard to the attitudes of other countries, certainly that was being reported in the media, but again it tended to be ‘The U.S. is saying this. France is saying that. We don’t really know who’s right or wrong, and therefore we’ve just laid it out for you.’ When in fact, there were pretty compelling arguments, at least legal arguments, as to why the U.S. position was just wrong.

It has always been clear that the US' closest allies never went as far as the Bush Administration did in their International Law claims. The UK didn't believe that the resolutions did everything that the US claimed that they did. Why else was Blair was so determined to get a 2nd United Nations Security Council Resolution passed to explicitly authorize military intervention? It wasn't just because he promised the UK Parliament that he would -- because in the end he broke that promise. As revealed yesterday in the latest Down Street memo, UK lawyers didn't really believe that the US revival theory would hold water under close scrutiny.

In our view these resolutions had the effect of causing the authorisation to use force in resolution 678 (1991) to revive, which provided a legal basis for Operation Desert Fox... The more difficult issue is whether we are still able to rely on the same legal base for the use of force more than three years after the adoption of resolution 1205 (1998)... Our interpretation of resolution 1205 was controversial anyway; many of our partners did not think the legal basis was sufficient as the authority to use force was not explicit. Reliance on it now would be unlikely to receive any support.

This legal advice from July 2002 is documentary evidence that they the UK thought that their "revival" legal theory was shaky, and it appears to have had even less support from the UK Attorney General after 1441 was passed four months later in November 2002. There is a lot of accumulated evidence that Lord Goldsmith was pressured to change his mind to declare that the war would be legal without a second resolution.

Elizabeth Wilmshurst was the deputy legal adviser to the UK Foreign Office and she resigned to protest the Iraq war a day before it was launched because she thought that that the war would be illegal. In Wilmshurst's resignation letter, she says that:

I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678.

Wilmshurst goes on to allege that attorney general Lord Goldsmith thought that the war would be illegal without a second resolution and that he had changed his mind to fit the official line:

My views accord with the advice that has been given consistently in this Office (the foreign office legal team office) before and after the adoption of UN security council resolution 1441 and with what the Attorney General gave us to understand was his view prior to his letter of 7 March. (The view expressed in that letter has of course changed again into what is now the official line.)

The UK government censored this key allegation from her resignation letter, but it was obtained by Channel 4 News more than two years later.

Sean Murphy provides some context as to why this so-called "revival theory" of 687 was so controversial that the UK attorney general didn't really buy it until he was probably politically pressured to change his mind:

One of the arguments that the Bush administration and the other coalition allies were advancing was that you basically had Iraq materially breaching an agreement to end the war from 1990 to ’91. That material breach allowed the use-of-force authorization that existed back in 1990-91 to be resurrected, such that you could take it and run with it in 2003 to invade Iraq, and seek out weapons of mass destruction, and topple the government of Saddam Hussein. That’s an interesting argument, but it falls short on a number of counts.

Murphy explains further:

Well, just at the face value, when you sit back and ask the question, "Is it possible that you can have a resolution adopted back in 1990 to deal with a particular conflict where one state had invaded another?" Can you really take that, and just easily use it to justify an invasion of a country thirteen years later? It’s a bit of a stretch right at the start, unless you can make certain fairly obvious connections. And the problem is, you can’t make those obvious connections.

Murphy provides a lot more details in our interview with him, and I've written about them a number of times.

I don't have a lot of faith that any of this information will break through the consciousness of mainstream journalists any time soon, but I thought I would just register my appeal for a second look at a number of these issues.