Tuesday, December 1, 2015

Explaining the grounds for Operation Iraqi Freedom to a law professor

PREFACE: I responded to University of Utah law professor Chibli Mallat's misrepresentation of the grounds for OIF in his 09NOV15 The Guardian article, Ahmed Chalabi was right that Saddam Hussein had to be removed. Professor Mallat's e-mails in the exchange are omitted.



from: [Eric LC]
to: [Chibli Mallat]
date: Sat, Nov 21, 2015 at 4:09 PM
subject: Your November 9 article in The Guardian misrepresents the grounds for Operation Iraqi Freedom

Professor Mallat,

Thank you for the reminder of Mr. Chalabi's worthy motivation to free Iraq and the just cause of deposing Saddam's regime.

At the same time, I would like to address your misrepresentation of the grounds for Operation Iraqi Freedom (OIF), in particular that "WMD was the only common platform they could find" and the suggestion that a human-rights basis for the Iraqi regime change was rejected.

Relating a meeting you had with Bush officials in 2002, you state, "the path to war was set. WMD was the only common platform they could find within the administration". In other words, you suggest that the casus belli for OIF was formulated ad hoc in 2002. That suggestion is incorrect.

The reason the WMD issue was given the priority of place in the case against Saddam is the disarmament standard prescribed by UNSCR 687 (1991) was the principal condition of the "governing standard of Iraqi compliance" (UNSCR 1441) mandated for the Gulf War ceasefire. The casus belli for OIF, i.e., Iraq’s material breach of the Gulf War ceasefire, was established long before George W. Bush was elected President of the United States — indeed, years before Ahmed Chalabi gave his lecture to Winep in the mid-1990s.

The priority conformed to the policy. The grounds for the Iraq intervention were not “the only common platform they could find within the administration”. Rather, they were "the only common platform" prescribed in the law and policy of the Gulf War ceasefire that was handed down to the Bush administration from the HW Bush and Clinton administrations.

Neither UN Security Council resolution 1441 (2002) nor Public Law 107-243 (2002) was novel. The 2002 documents reiterated the UN-mandated "governing standard of Iraqi compliance" and the US law and policy enforcing the UNSCR 660-series resolutions since 1990-1991. The additions in the 2002 documents were updates and enhancements to standing terms, not novel terms.

Although you recommended a worthy new approach for confronting Saddam in 2002, the Bush administration carried forward the standing basis for enforcing the Gulf War ceasefire that had been established since 1990-1991.

As such, the principal trigger for OIF was the March 2003 UNMOVIC report of "about 100 unresolved disarmament issues" in violation of UNSCRs 687 (1991) and 1441 (2002), which followed the precedent of the UNSCOM report that triggered Operation Desert Fox in December 1998.

I recommend this explanation of the law and policy, fact basis for Operation Iraqi Freedom drawn from the primary sources of the mission:
http://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html[.]

You also suggest in the article that a human-rights basis for the Iraqi regime change was rejected by the Bush administration. That suggestion is also incorrect.

In fact, President Bush exercised a robust humanitarian policy on Iraq, which was carried forward from President[s] HW Bush and Clinton’s humanitarian policy on Iraq.

The evidence for your contention is your recommendation for a new "security council resolution based on the human rights record of the Iraqi dictatorship and the need to remove it, plus a security council plan to promote democracy through the deployment of human rights monitors" was turned down in 2002.

Again, the "governing standard of Iraqi compliance" for the Gulf War ceasefire was established before 2002. In fact, the UN mandates already included a cornerstone humanitarian component: UNSCR 688 (1991). UNSCR 688 was recalled in UNSCR 1441.

The simplest reason that the disarmament mandates of UNSCR 687 were given the priority of place over the humanitarian mandates of UNSCR 688 is UNSCR 687 is a Chapter VII resolution. UNSCR 688 is not a Chapter VII resolution and, thus, is subject to Article 2 Paragraph 7 of the Charter. (Note: The US controversially justified invasive enforcement measures for UNSCR 688, such as the northern safe zones and no-fly zones, by claiming UNSCR 688 was enforceable under UNSCR 678 (1990), which is a Chapter VII resolution.)

Most significantly, your proposal called directly for Iraqi regime change, which contradicted the operative enforcement framework for the Gulf War ceasefire. The relevant UNSCRs for Iraq — from the original 660 to 1441's "final opportunity to comply" — provided the opportunity for Saddam to prove compliance in order to switch off enforcement. None of the resolutions, including UNSCR 688, called directly for Iraqi regime change. Under the operative enforcement framework, an enforcement response such as OIF was predicated on confirmation of Iraq's noncompliance such as the March 2003 UNMOVIC report of "about 100 unresolved disarmament issues".

That being said, distinct from the UN resolutions for Iraq, the humanitarian mandates were valued on par with the disarmament mandates in US law and policy. That meant that while the UN enforcement procedure prioritized the disarmament mandates of UNSCR 687 for the casus belli, the US also prioritized the humanitarian mandates of UNSCR 688, which was reflected in President Bush's approach to the Iraqi regime change and the subsequent UNSC resolutions for the peace operations.

I recommend this selection of [from] the law and policy for the humanitarian grounds for OIF: http://operationiraqifreedomfaq.blogspot.com/2013/03/10-year-anniversary-start-Operation-Iraqi-Freedom-thoughts.html#unscr688[.]

I hope my explanation has helped you to better understand the grounds for Operation Iraqi Freedom and the response by Bush officials to your worthy recommendations in 2002.

---------------

from: [Eric LC]
to: [Chibli Mallat]
date: Tue, Nov 24, 2015 at 2:29 PM
subject: Re: Your November 9 article in The Guardian misrepresents the grounds for Operation Iraqi Freedom

Professor Mallat,

Thank you for your attention to this issue. It's important, most of all for legal scholars, to set the record straight on the 'why' of Operation Iraqi Freedom (OIF).

If you were a proponent of the material breach argument in 1998, then President Bush followed your guidance in 2002-2003, to wit, "Resolution 1441 gave Iraq one last chance, one last chance to come into compliance or to face serious consequences" (Powell, 06[05]FEB03) and "The Security Council resolutions will be enforced -- the just demands of peace and security will be met -- or action will be unavoidable" (Bush, 12SEP02).

The view that "the war is being considered illegal, since WMD were found not to be in Iraq, officialy, by the Bush-appointed investigation" may be a popular one, but it is demonstrably incorrect on the law and the facts.

On the law, the assertion that "the war is being considered illegal" is incorrect according to the "governing standard of Iraqi compliance" (UNSCR 1441). UNMOVIC, not the post-war Iraq Survey Group, provided the determinative fact finding that triggered enforcement. The ISG investigation is post hoc to the decision point for OIF and thus irrelevant to the casus belli for OIF.

According to the law that controlled the operative enforcement framework — i.e., the "governing standard of Iraqi compliance" mandated by UNSCR 1441 and enforced under Public Law 107-243 — the UNMOVIC inspections mandated by UNSCR 1441 confirmed that in "[Iraq's] final opportunity to comply with its disarmament obligations ... Iraq [has been and] remains in material breach of its obligations under relevant resolutions, including resolution 687 ... Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein" (UNSCR 1441).

The casus belli for OIF was established by the UNMOVIC report ("Unresolved Disarmament Issues Iraq’s Proscribed Weapons Programmes") that was conveyed to the Security Council on March 7, 2003 with the finding of "about 100 unresolved disarmament issues" in violation of UNSCR 687. The UNMOVIC findings are dispositive according to the "governing standard of Iraqi compliance" for disarmament.

On the facts, the assertion that "WMD were found not to be in Iraq" is incorrect according to — again — the "governing standard of Iraqi compliance" for disarmament. The Iraq Survey Group corroborated UNMOVIC's confirmation that Iraq was in violation of UNSCR 687 for casus belli. To wit, on January 28, 2004, David Kay, who preceded Charles Duelfer as head of the Iraq Survey Group, reported to the Senate Armed Services Committee:
"In my judgment, based on the work that has been done to this point of the Iraq Survey Group, and in fact, that I reported to you in October, Iraq was in clear violation of the terms of [U.N.] Resolution 1441. Resolution 1441 required that Iraq report all of its activities -- one last chance to come clean about what it had. We have discovered hundreds of cases, based on both documents, physical evidence and the testimony of Iraqis, of activities that were prohibited under the initial U.N. Resolution 687 and that should have been reported under 1441, with Iraqi testimony that not only did they not tell the U.N. about this, they were instructed not to do it and they hid material."
In fact, the ISG findings are rife with disarmament violations, e.g., "the Iraqi Intelligence Service (IIS) maintained throughout 1991 to 2003 a set of undeclared covert laboratories" and "From 1999 until he was deposed in April 2003, Saddam’s conventional weapons and WMD-related procurement programs steadily grew in scale, variety, and efficiency". In other words, ISG found an active program in the IIS that was proscribed under UNSCR 687. You would know better than I about the notoriety of the IIS for its principal role in Saddam's WMD program, terrorist network (which was also a violation of UNSCR 687), and abuse of the Iraqi people.

The political sleight-of-hand behind the popular view that "the war is being considered illegal, since WMD were found not to be in Iraq" is the misdirection from the actual legal-factual basis of the casus belli for OIF — i.e., Iraq's evident[ial] noncompliance with the "governing standard of Iraqi compliance" — to focus inappositely on the predictive precision of the pre-war intelligence. However, the pre-war intelligence did not set the "governing standard of Iraqi compliance" nor was it a legal element of the casus belli for OIF.

On the substance, Saddam was evident[ial]ly guilty of material breach across the board of the Gulf War ceasefire, especially the disarmament mandates of UNSCR 687, terrorism mandates of UNSCR 687, and humanitarian mandates of UNSCR 688. The real argument that OIF is illegal is not substantive, but rather based on the longstanding procedural dispute in the Security Council over the decision authority for enforcement with Iraq. The procedural dispute over OIF was the same Security Council procedural dispute over the no-fly zones and Operation Desert Fox.

I unpack this issue with greater depth in my answers to "Did Bush lie his way to war with Iraq?" [and] "Was Operation Iraqi Freedom legal?", starting at http://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html#didBushlie .

Okay. That's enough for one e-mail, Professor. I look forward to further unpacking the legal controversy over the decision for OIF if you'd like. As I said, it's important to set the record straight on the 'why' of OIF. Meanwhile, I recommend again that you review my OIF FAQ explanation of the law and policy, fact basis of the decision for OIF drawn from the primary sources of the mission.

I'll finish this e-mail with an observation: again, there wasn't a new and distinct "Republican platform" formulated in 2002.

Review the Clinton administration's enforcement record with Iraq. President Clinton, not President Bush, is actually the best source for understanding the 'why' of OIF. Bush's case against Saddam was really Clinton's case against Saddam, updated from 9/11. Likewise, Bush's enforcement procedure with OIF carried forward Clinton's enforcement procedure for Iraq, updated from Operation Desert Fox, the penultimate military enforcement step.

In that regard, the position in your November 9 article that the Bush administration dropped the Iraq Liberation Act of 1998 (Public Law 105-338) is incorrect. PL 105-338 was raised in the preamble of the 2002 AUMF (Public Law 107-243). More significantly, in the operative portion of the 2002 AUMF, section 7 of PL 105-338 was raised in section 4 of PL 107-243.

As I said, the 2002 documents were not novel. UNSCR 1441 and PL 107-243 reiterated the standing terms of the Gulf War ceasefire enforcement. The reason that section 7 rather than section 3 of the Iraq Liberation Act of 1998 was raised in the operative portion of 2002 AUMF is President Bush pointedly did not call for direct Iraqi regime change, contrary to your impression from your 2002 meetings. The controlling law and policy are clear that Iraqi regime change would be triggered by confirmation of Iraq's material breach of the Gulf War ceasefire.

That being said, after 12 years of Saddam's intransigence, your impression from your 2002 meetings follows that few US (and UN) officials realistically expected Saddam would reverse course by proving the "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" mandated by UNSCR 1441. Nevertheless, President Bush made sure that Saddam was provided a full "final opportunity to comply" (UNSCR 1441) in order to switch off enforcement. Unfortunately, Saddam, as expected, responded to his "final opportunity to comply" with "about 100 unresolved disarmament issues" (UNMOVIC) in violation of UNSCR 687, which triggered the credible threat of regime change and then section 7 of PL 105-338 via section 4 of PL 107-243.

---------------

from: [Eric LC]
to: [Chibli Mallat]
date: Tue, Dec 1, 2015 at 4:14 PM
subject: Re: Your November 9 article in The Guardian misrepresents the grounds for Operation Iraqi Freedom

Professor Mallat,

I'm hoping you will. [Note: I am responding to the remark, "You should consider writing a book about this."]

By showing you my work with the primary sources it's based on, I'm hoping to inspire you to invest your personage in setting the record straight on the why of Operation Iraqi Freedom (OIF) for policy makers and the public.
[...]
In your November 9 article, you expressed that deposing Saddam's terrorist regime was right from a human-rights perspective (albeit you've evidently misunderstood the operative enforcement framework, including the humanitarian grounds, for the Iraq intervention). As a human-rights advocate, I trust you to understand why it's critical to de-stigmatize OIF in order to re-normalize the paradigm of 'strong horse' American leadership of the free world that manifested with OIF.

Excerpt from the answer to "Was Operation Iraqi Freedom a strategic blunder or a strategic victory?":
"Misinformation and mischaracterization have distorted the public's understanding of the context, stakes, and achievements of the Gulf War ceasefire enforcement that President Bush carried forward from President Clinton and the groundbreaking peace operations by the US military in post-Saddam Iraq. The corrupted public perception of the Iraq mission has enabled President Obama's elementary, catastrophic errors, undermined the enforcement of international norms, and curtailed the further development of peace operations."
In other words, there currently is a taboo bolted onto the 'strong horse' type of American leadership needed to enforce liberal standards in less-than-permissive situations like Saddam's Iraq. The taboo is premised on a stigma derived from demonstrably false premises about OIF, such as "the war is being considered illegal, since WMD were found not to be in Iraq". If you wish to break the taboo and free America to lead liberally again like we led against Saddam's terrorist regime, then it's critical for you to set the record straight on OIF at the premise level of the zeitgeist.



Related: Clarification of the Iraq issue in Congressional Research Service report "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications" (Jennifer Elsea, Matthew Weed).

Tuesday, June 16, 2015

Correcting Politifact's fundamental distortion of the Gulf War ceasefire enforcement

PREFACE: Under the guise of a fact check, Meme says Bill Clinton, George W. Bush had basically the same policy on Iraq, Politifact grossly misrepresented the "governing standard of Iraqi compliance" (UNSCR 1441) in the US-led enforcement of Iraq's compliance with the Gulf War ceasefire. Politifact did not respond to my e-mail nor were the fundamental errors in the article corrected.



from: [Eric LC]
to: [Louis Jacobson], [Keely Herring], truthometer@politifact.com
cc: [Aaron Sharockman], [Angie Drobnic Holan]
date: Tue, Jun 16, 2015 at 4:19 PM
subject: Regarding "Meme says Bill Clinton, George W. Bush had basically the same policy on Iraq"

Mr. Jacobson, Ms. Herring, and Politifact:

I am writing to you regarding your June 16 article, "Meme says Bill Clinton, George W. Bush had basically the same policy on Iraq", at http://www.politifact.com/truth-o-meter/statements/2015/jun/16/facebook-posts/meme-says-bill-clinton-george-w-bush-had-basically/.

Your article addresses a subject I have studied with some depth.

Your article looks at two issues based on a meme about President Clinton and Bush's Iraq policies. The first issue compares Presidents Clinton and Bush's positions on Iraqi WMD. The second issue compares Presidents Clinton and Bush's positions on regime change for Iraq.

1. Your conclusion that "while it’s true that both Clinton and Bush mentioned weapons of mass destruction in relation to Iraq, Bush’s claim was much more expansive [with an addition of nuclear and biological weapons issues]" is incorrect.

In fact, Presidents HW Bush, Clinton, and Bush (and Obama) enforced the same "governing standard of Iraqi compliance" (UNSCR 1441) for the terms of the Gulf War ceasefire with emphasis on the disarmament and terrorism mandates of UNSCR 687 (1991) and the humanitarian mandates of UNSCR 688 (1991) and related resolutions. See, in particular, paragraphs 8 to 13 of UNSCR 687 regarding Iraq's obligations on WMD.

To wit, preceding Operation Desert Fox on November 5, 1998, President Clinton referred to paragraphs 8 to 13 of UNSCR 687, "After the Gulf War, the international community demanded and Iraq agreed to declare and destroy all of its chemical, biological and nuclear weapons capability and the missiles to deliver them, and to meet other U.N. Security Council resolutions. ... Now, the better part of a decade later, Iraq continues to shirk its clear obligations."

I am curious why the author of the meme chose to refer non-specifically to 1996 given that President Clinton was preoccupied with enforcing the UN mandates for Iraq for his entire presidency from 1993 to 2001. Clinton's enforcement efforts with Iraq peaked with correspondingly ominous statements in 1998.

Similarly, even granting the arbitrary limit of 1996, I am curious why Politifact chose to cite President Clinton's September 7, 1996 statement regarding the Chemical Weapons Convention to represent Clinton's position on Iraqi WMD. Clinton's September 7, 1996 statement on the CWC was not focused on Iraq's compliance with UNSCR 687 and, therefore, was not representative of Clinton's position on Iraqi WMD.

[Note: The 06MAY96 quote from President Clinton was italicized in the e-mail and block-quoted here.]

Meanwhile in 1996, per the periodic reporting mandate of Public Law 102-1 (1991), President Clinton made several statements focused on Iraq's noncompliance with UNSCR 687. For example, see http://clinton6.nara.gov/1996/05/1996-05-06-president-letter-to-congress-on-iraq.html:
The Government of Iraq remains far from compliance with its obligations under applicable Security Council resolutions. The U.N. Special Commission (UNSCOM) Chairman Ekeus remarked recently in Washington that Iraq may be hiding up to 16 SCUD missiles, possibly armed with biological warheads. Iraqi officials blatantly violated Security Council resolutions in March when they repeatedly obstructed UNSCOM officials attempting to search buildings in Baghdad for weapons of mass destruction material. Iraqi officials may have removed or destroyed incriminating material during the delay. In a report released on April 11, UNSCOM expressed its concern that Iraq may still be engaged in weapons activities prohibited under Security Council Resolution 687. Iraq continues to evade its duty to return looted Kuwaiti property and help account for hundreds of civilians who disappeared in Kuwait during the occupation. Iraq still provides refuge for known terrorists.
President Clinton's 1996 reports on Iraq were not as detailed as his later [Public Law 102-1 mandated] reports to Congress on Iraq. Instead, Clinton's 1996 reports referred to UNSCOM's reports, which addressed the range of WMD-related mandates for Iraq, including the nuclear, biological, and chemical-related proscriptions under UNSCR 687. For UNSCOM's reports, see http://fas.org/news/un/iraq/s/index.html.

A better detailed statement of President Clinton's position on Iraqi WMD is found in his March 3, 1999 letter to Congress that explained the justification for Operation Desert Fox: see http://clinton6.nara.gov/1999/03/1999-03-03-text-of-a-letter-to-congress-on-iraq.html.

The March 3, 1999 letter to Congress is just one example of Clinton's position on Iraqi WMD from the last part of his administration before Clinton handed off the festering Saddam problem to his successor. See the primary sources for the "President Clinton Perspective" on Iraq compiled at http://operationiraqifreedomfaq.blogspot.com/2004/10/perspective-on-operation-iraqi-freedom.html#clinton.

Contrary to Politifact's conclusion, Presidents Clinton and Bush shared substantially the same position on Iraqi WMD based on enforcing the "governing standard of Iraqi compliance" for disarmament mandated by UNSCR 687 and related resolutions. In March 2003, the UNMOVIC Cluster[s] Document finding of "about 100 unresolved disarmament issues" confirmed "Iraq [has been and] remains in material breach of its obligations under relevant resolutions, including resolution 687" (UNSCR 1441) and triggered Operation Iraqi Freedom in the same way that the UNSCOM Butler Report confirmed Iraq's material breach and triggered Operation Desert Fox in December 1998.

The differences between the presidents on Iraqi WMD are, one, the 9/11 attacks raised the urgency to make "Iraq fully comply with all of its obligations under Security Council resolutions" (Clinton) in light of Iraq's continued terrorism in breach of UNSCR 687 (see http://fas.org/irp/eprint/iraqi/) and, two, in his latter presentation of the public case against Saddam, President Bush deviated from President Clinton by citing to the intelligence in addition to Iraq's noncompliance, despite that the UNMOVIC confirmation of Iraq's "continued violations" (UNSCR 1441) — not the intelligence — established [confirmed] material breach of the ceasefire for casus belli. While President Clinton was privy to same or similar intelligence for Operation Desert Fox, Clinton's public case against Saddam for Operation Desert Fox had hewed to the law and policy of the Gulf War ceasefire by citing only to Iraq's noncompliance when Clinton judged, "This situation [ie, Iraq's noncompliance with UN mandates] presents a clear and present danger to the stability of the Persian Gulf and the safety of people everywhere."

However, President Bush's error of presentation does not change that in Saddam's "final opportunity to comply" (UNSCR 1441), Iraq was in material breach across the board with the terms of ceasefire, especially the disarmament and terrorism mandates of UNSCR 687 and humanitarian mandates of UNSCR 688, for casus belli.

2. Your conclusion "Clinton did sign a law backing regime change in Iraq, but it was limited to assistance to homegrown opposition groups, not to a ground war aimed at toppling Hussein" is partially correct, but elides the ceasefire enforcement context for Public Law 105-338, ie, bringing Iraq into compliance with UN mandates.

[The common misconception that the scope of the Iraq Liberation Act of 1998 was restricted to aid to Iraqi dissidents is dispelled by scrutinizing the statute's construction. The law plainly established regime change and US-led peace operations with post-Saddam Iraq as the solution to the Saddam problem. And it did spell out measures to aid Iraqi dissidents. However, the statutory text, “[n]othing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces” (P.L. 105-338), is not a restriction. Aside from its enumerated measures, P.L. 105-338 was daisy-chained to the standing laws authorizing the "use of all necessary means" (P.L. 102-190) to "bring Iraq into compliance with its international obligations" (P.L. 105-235).]

While the Iraq Liberation Act of 1998 did not call for (nor bar) regime change by invasion, the statute effectively established that, due to Saddam's intransigence, the solution to the ongoing threat posed by Iraq's noncompliance was regime change, which the Clinton administration actively fostered. In fact, the policy of regime change had begun under President HW Bush who supported the Iraqi National Congress [and "homegrown opposition groups" within Iraq] before President Clinton. The statute also committed the US to assisting post-Saddam Iraq (see section 7 of Public Law 105-338 and section 4 of Public Law 107-243).

In context, President Clinton's policy of 'containment' was not meant to be a substitute for Iraqi compliance with the terms of ceasefire. The 'containment' was fashioned as an ad hoc stopgap until either Saddam fully complied with the terms of ceasefire (unlikely, since Saddam had rejected the UN mandates in Iraqi law) or regime change. Part of the 'containment' policy that Clinton conveyed to Bush was the contingency for military response if Iraq showed any sign of breaking 'containment', which was the situation with Iraq by 2001.

Together with the Iraq Liberation Act of 1998, Operation Desert Fox in December 1998 set the stage for Operation Iraqi Freedom in 2002-2003. President Clinton's December 16, 1998 announcement for ODF laid out the case for regime change, and the bombing campaign cleared the penultimate enforcement step. After ODF, the only enforcement step remaining was the threat of regime change. [The sanctions were de facto neutralized by 2000-2001 and Saddam's attack on Irbil in August 1996 effectively broke the US-backed threat of "homegrown opposition groups".] Hans Blix stated and the Iraq Survey Group confirmed that, by 2002-2003, the only enforcement measure remaining that could compel Saddam to cooperate at all with the UN weapons inspections, even deficiently, was the credible threat of regime change.

In the end, Saddam responded to his "final opportunity to comply" (UNSCR 1441) by calling our bluff with "about 100 unresolved disarmament issues" (UNMOVIC Cluster[s] Document) in breach of UNSCR 687. At that point, the alternative to Operation Iraqi Freedom was compromising "the governing standard of Iraqi compliance" in order to free a noncompliant, unreconstructed Saddam who had, one, evident[ial]ly not disarmed as mandated, and two, was confirmed by the Iraq Survey Group to be rearming in violation of UNSCR 687 with an active program in the Iraqi Intelligence Service.

In summary, the Politifact conclusion that Presidents Clinton and Bush held substantially different positions on Iraqi WMD is incorrect. Both presidents enforced Iraq's compliance with the "governing standard of Iraqi compliance" for disarmament mandated by UNSCR 687 and related resolutions. Your citation of Clinton's September 7, 1996 statement on the Chemical Weapons Convention to represent Clinton's position on Iraqi WMD is a curious choice that overlooks the body of Clinton's statements, including from 1996, that focused on Iraqi WMD.

The Politifact conclusion that Presidents Clinton and Bush held different positions on regime change is partially correct, but overlooks the ceasefire enforcement context for the Iraq Liberation Act of 1998, including the circumstances with Iraq's noncompliance in 2002-2003.

For more, see my explanation of the law and policy, fact basis for Operation Iraqi Freedom:
http://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html[.]

Friday, May 15, 2015

Correcting Mario Loyola: UNSCR 1441 did place the burden of proof on Iraq

PREFACE: I responded to University of Texas School of Law professor and National Review contributing editor Mario Loyola's 13MAY15 article, How Should Jeb Bush Have Answered the Iraq War Question?. Professor Loyola's e-mails in the exchange are omitted.



from: [Eric LC]
to: [Mario Loyola]
date: May 15, 2015, 6:02 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Professor Loyola,

I am writing you about your May 13 essay in National Review, "How Should Jeb Bush Have Answered the Iraq War Question?" (http://www.nationalreview.com/article/418314/how-should-jeb-bush-have-answered-iraq-war-question-mario-loyola?target=author&tid=1863).

The subject matter of your essay is subject matter in which I have invested a good deal of time and thought in order to understand the law and policy, fact basis — the bedrock 'why' — of Operation Iraqi Freedom.

Your take and my take of the law and policy mostly align, but there are some significant discrepancies. I invite you to review my explanation and tell me what you think, particularly towards reconciling the discrepancies.
https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html

I also invite you to review my summary of the historical context, which may help shed some light on the events around OIF.
https://operationiraqifreedomfaq.blogspot.com/2012/05/problem-of-definition-in-iraq.html

I am alarmed and dismayed by the Republican candidates, most of all the President's brother [Jeb Bush], stipulating the harmful and factually wrong position that the Iraq mission was fundamentally a mistake. If the Left's narrative of OIF takes root, it will reshape our culture, politics, and policy for a generation as the purposeful heir to the Left's Vietnam War narrative. It needs to be neutralized ASAP. Obviously, you're in a better position than I to effect any course correction among Republicans, but perhaps my content can assist you.

...



from: [Eric LC]
to: [Mario Loyola]
date: May 17, 2015, 9:28 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mr. [Professor] Loyola,

Below is a copy of a comment that I posted to your article at the National Review website. It responds to your contention that UNSCR 1441 did not place the burden of proof on Iraq. I disagree.

Comment:
Mario Loyola:
It is absolutely vital that that any U.N. Security Council resolution lifting the U.N.’s own sanctions contain a provision to the effect that the burden of proof is on Iran and that if there is a dispute over Iran’s compliance that is not resolved quickly and fully, the sanctions snap back automatically and the breach will be considered a threat to the peace.
I'm following up my earlier comment to focus on the 3 underlined issues raised by Mr. Loyola as related to the legal mechanism in UNSCR 1441. Again, for the record, my explanation (link) of the law and policy, fact basis for Operation Iraqi Freedom.

1. "the breach will be considered a threat to the peace"

We can dispose of this issue quickly.

UNSCR 1441: "Recognizing the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security".

2. "a provision to the effect that the burden of proof is on Iran"

In fact, UNSCR 1441 clearly established "to the effect" that the burden of proof was on Iraq. Instead of 'burden', the terms in the resolution that amounted to the same function as burden were the combination of "obligation", "compliance", and "material breach". To wit, "Determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions and recalling that the resolutions of the Council constitute the governing standard of Iraqi compliance ... Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein ... Determined to secure full compliance with its decisions ... Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991) ... afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council ... demands further that Iraq cooperate immediately, unconditionally, and actively with UNMOVIC and the IAEA".

Of course, familiarity with the disarmament mandates of UNSCR 687 (link) is necessary to understand Iraq's obligations in Saddam's "final opportunity to comply" under UNSCR 1441.

In effect, UNSCR 1441 pre-judged Iraq was guilty of material breach and instructed that "full and immediate compliance by Iraq without conditions or restrictions with its obligations" to the "governing standard of Iraqi compliance" mandated by UNSCR 687 — "immediately, unconditionally, and actively" as mandated by UNSCR 1441 — was required in order to cure Iraq's pre-judged guilt of material breach in Iraq's "final opportunity to comply".

On March 7, 2003, UNMOVIC reported its findings (link) to the Security Council: "about 100 unresolved disarmament issues" in breach of UNSCR 687. Iraq dispositively failed to meet the burden of proof mandated by UNSCR 1441. The Bush administration acted [link] on the UNMOVIC findings.

Saddam's regime was guilty of material breach entering the UNSCR 1441 inspections and UNMOVIC confirmed Saddam's regime remained guilty of material breach. Controversy resolved, right? No.

3. "sanctions snap back automatically"

The controversy is due to the absence of a provision in UNSCR 1441 that defined an automatic consequence if Iraq failed to cure its guilt of material breach. In place of an automatic consequence, UNSCR 1441 carried forward the Gulf War authorization utilized by Presidents HW Bush and Clinton in their military actions to enforce the resolutions for Iraq: "recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area".

UNSCR 1441 also referred ambiguously to "serious consequences" if Iraq failed to comply, which was analogous to the ambiguous "severest consequences" in UNSCR 1154 that preceded Operation Desert Fox in 1998.

UNSCR 1441 also contained a provision that the Security Council would "convene" to discuss follow-up action once UNMOVIC's report was received and, as with prior resolutions, the Security Council was "seized" on the matter.

So, there was no automatic consequence provided by UNSCR 1441. However, UNSCR 1441 carried forward the UNSCR 678 (1990) authorization for "Member States to use all necessary means". Recall that Clinton did not obtain a resolution to specifically authorize Operation Desert Fox, but instead cited to the authorities provided by UNSCRs 678 and 687, both of which were available for Operation Iraqi Freedom as well.

UNSCR 1441 mandated the Security Council convene upon receipt of UNMOVIC's findings, but it's not clear that mandate also required a new specific UNSC authorization for enforcement action. The Security Council convened for 10 days (March 7 to March 17) before President Bush announced his decision for OIF which commenced on March 19, 2003.

In effect, UNSCR 1441 had it both ways. Member states, ie, the US and our allies, were pre-authorized to use all necessary means to enforce Iraq's compliance with the resolutions. But there also was an absence of automatic consequence and the mandate to convene about the next step upon receipt of UNMOVIC's findings, which implied the Security Council, "seized" on the issue, should determine the next step in response to the confirmation of Iraq's material breach.

The US and UK went one way: the confirmation of Iraq's material breach was the trigger for the UNSCR 678 authorization. Russia, France, and China went the other way: only the Security Council could determine the next step in response to the confirmation of Iraq's material breach.

Important note: the same controversy for Operation Iraqi Freedom accompanied Operation Desert Fox with the same split on the Security Council. President Bush at least sought a new UN authorization [resolution] when the Security Council convened. The Security Council did not convene upon receipt of the UNSCOM Butler Report in December 1998. Again, President Clinton cited to the UNSCR 678 authorization to bomb Iraq forthwith in response to the UNSCOM Butler Report findings.

I hope that analysis clarifies (if not settles) the controversy raised by Mr. Loyola regarding UNSCR 1441.



from: [Eric LC]
to: [Mario Loyola]
date: May 17, 2015, 11:28 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

It's good you're re-entering service.

As I said in my first e-mail inviting you to review my explanation of the law and policy, fact basis for OIF, I am alarmed and dismayed that Republican candidates for President are stipulating the view that the decision for OIF was a mistake "knowing what we know now" about the pre-war intelligence.

That view is founded on a false premise that shifted the burden of proof from Iraq proving it was disarmed in compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates. Your NR [National Review] article goes to the heart of the issue.

I had assumed our leaders in the know — especially the presumptive candidate [Jeb Bush] who is the President's brother and the President's son — understood the operative enforcement procedure in the decision for OIF. Yet they have not mentioned at all that Iraq's evident[ial] material breach was casus belli [link], even as mitigation let alone justification.

The condition overlooked in the discourse on OIF is the [pre-war] intelligence [estimates] could be off the mark and Saddam could be guilty of the material breach that triggered enforcement at the same time because the "governing standard of Iraqi compliance" (UNSCR 1441) was set by the UNSC resolutions, not the intelligence. While the UNMOVIC Cluster[s] Document may have been inconclusive that Iraq was armed as indicated [by pre-war intelligence estimates], the UN inspectors weren't mandated to search for arms according to the pre-war intelligence. Rather, the UN inspectors were mandated to verify Iraq had disarmed as mandated by UNSCR 687. In fact, the UNMOVIC Cluster[s] Document [link] is conclusive that Iraq had not disarmed as mandated, which confirmed the UNSCR 1441 judgement that Iraq remained in material breach.

While the Iraq Survey Group findings are a misfit with the pre-war intelligence estimates, they are also rife with disarmament violations of UNSCR 687. According to UNMOVIC, Saddam's regime was in material breach of UNSCR 687, and according to ISG, Saddam's regime was armed and dangerous, just not in the same way indicated by pre-war intelligence estimates.

The falsely premised narrative of OIF is right now being wired in as the guiding principle for the next generation of American foreign policy and domestic politics. The Republican candidates for Presidents are validating it. If my explanation passes muster with you, I hope it will help you set the record straight if it's not too late. I look forward to your feedback.



from: [Eric LC]
to: [Mario Loyola]
date: May 23, 2015, 10:06 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

While I don't believe there's another version, some housekeeping before I respond: I use the UNSCR 1441 copy accessed from http://www.un.org/Docs/journal/asp/ws.asp?m=s/res/1441(2002) [copy].

This is not from UNSCR 1441, but it's probative nonetheless. UNMOVIC Cluster[s] Document:
"UNMOVIC must verify the absence of any new activities or proscribed items, new or retained. The onus is clearly on Iraq to provide the requisite information or devise other ways in which UNMOVIC can gain confidence that Iraq’s declarations are correct and comprehensive."

If it was unclear that UNSCR 678 applied to "all subsequent relevant resolutions", UNSCR 687 made clear that the prior UNSCR 660-series resolutions, including UNSCR 678, were carried forward to UNSCR 687, which was also a Chapter VII [link] resolution. I agree that disposing of the Russian view of UNSCRs 678 and 687 was important. I wonder how much of Saddam's noncompliance from the outset, not just in 2002-2003, was influenced by the Russian view.

I disagree with your reading of "explicitly tied "serious consequences" to "further material breach"["].

The only condition of "further material breach" in UNSCR 1441 did not limit the scope of compliance. In fact, it did not refer to the Iraqi activity indicated by the pre-war intelligence [estimates]. Rather, it was a reinforcement of the burden of proof on Iraq.

Faults in Iraq's declarations and other Iraqi faults that prevented UN verification of Iraqi disarmament as mandated by UNSCR 687 had been a principal conflict for UNSCOM [link]. UNSCR 1441 decided that Iraq falling short of complying with the strict standard of compliance mandated by UNSCR 1441 for the steps mandated by UNSCR 687 constituted a "further material breach", to wit, "4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations".

Meanwhile, the "serious consequences" of UNSCR 1441 were explicitly tied to "continued violations", not limited to a "further material breach", to wit, "13. Recalls, in that context [ie, Iraq's non-stop failure to comply to the mandated standard], that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations".

The "continued violations" in decision 13 matched the basic issue in decision 1 that "Iraq has been and remains in material breach of its obligations", to wit, "1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991)".

Resolution of Iraq's "continued violations" matched the basic issue stated by President Bush in his September 2002 remarks [link] to the UN Generally Assembly and in Public Law 107-243 [link], the prerequisite for UNSCR 1441.

The purpose of UNSCR 1441, stated in decision 2, was "a final opportunity [for Iraq] to comply with its disarmament obligations under relevant resolutions of the Council ... with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council".

If "further material breach" in decision 4 had referred to intelligence-indicated Iraqi activity that followed an unspecified cut-off point (say, Operation Desert Fox), then UNSCR 1441 limiting the "serious consequences" to such a "further material breach" would have failed "to secure full compliance with its decisions" to resolve Iraq's "continued violations" with a "full and verified completion" of the disarmament process mandated by UNSCR 687.

Regarding the UNMOVIC Cluster[s] Document, I repeat, the UNMOVIC findings may have been inconclusive that Iraq was armed as indicated by pre-war intelligence [estimates], but they were conclusive that Iraq had failed to disarm as mandated by UNSCR 687.

To understand the difference, the (UNSCOM and) UNMOVIC findings are properly read according to UNSCR 687, not the pre-war intelligence estimates. Recall that "the resolutions of the Council" — not the intelligence — "constitute[d] the governing standard of Iraqi compliance".

UNSCR 687 and related resolutions mandated Iraq more than to show it was not armed, especially after General Hussein Kamel al-Majid revealed hidden stockpiles in 1995. In fact, Iraq's proscribed items and activities that could be demonstrated in hand were not the main WMD-related threat because the violations that were demonstrated were corrected as mandated. Rather, Saddam's main WMD-related threat was the proscribed items and activities that could not be accounted for due to Iraq's "denial and deception operations" (Duelfer Report).

As President Bush reiterated, the burden of proof was always on Iraq to prove it was disarmed as mandated. There was not ever a burden of proof on the US and UN to demonstrate Iraq was armed as indicated by [pre-war] intelligence [estimates]. Nor, practically, was such a demonstration by UNMOVIC expected according to [mandate and] precedent.

On February 17, 1998, when Clinton warned of "clear evidence of a weapons of mass destruction program", he cited to Iraq's noncompliance, not the intelligence. And preceding President Bush responding to the UNMOVIC Cluster[s] Document with Operation Iraqi Freedom, President Clinton had responded to the UNSCOM Butler Report [link] with Operation Desert Fox. Like its successor in November 2002 — March 2003, UNSCOM did not discover secret Ford factories mass-producing WMD munitions nor hidden armories of battlefield-ready WMD stocks in November-December 1998. Rather, UNSCOM, like UNMOVIC, confirmed Iraq remained noncompliant with the standard for disarmament mandated by UNSCR 687.

Set aside the UNSCR 1441 text for a moment, put on your crimpro cap, and consider the issue common-sensically.

Bush formally introduced the "final opportunity to comply" to the UN General Assembly on September 12, 2002. Over 2 months later, IAEA and UNMOVIC resumed inspections in Iraq on November 27, 2002. The Iraq Survey Group Duelfer Report [link] is qualified with the cautionary notes that much potential evidence was lost during the war and its aftermath, key regime officials were not cooperative, and suspect areas were found "sanitized". In many instances, ISG concluded it could not determine Iraq had disarmed as mandated by UNSCR 687.

If we held the burden like State holds the burden in a criminal trial, then why didn't we secure the 'crime scene' ASAP? The answer is not awesome stupidity and utter lack of lawyerly acumen by Bush officials.

The answer is the UNSCR 1441 inspections with UNMOVIC, like the UNSCR 1154/1194/1205 inspections [link] with UNSCOM, were a compliance-based 'final exam' for Saddam. The burden of proof was on Iraq to prove it was disarmed as mandated by UNSCR 687. UNMOVIC demonstration of Iraqi possession was not an element of the compliance-based 'final exam'.

The belief that the burden was on the US and UN to prove Iraq was armed as indicated [by pre-war intelligence estimates], rather than on Iraq to prove it was disarmed as mandated, requires you to overlook the gaping flaw in the [UNSCR 1441 inspections] sequence that would have allowed, nay invited, Saddam to 'flush' evidence at his leisure, if we held the burden of proof.

Iraq failed its compliance-based 'final exam', administered by Hans Blix's team, with "about 100 unresolved disarmament issues". You're a professor. If your most delinquent student failed all his exams, and then in the dispute over his grade, your TA claims the student's failed exams are not proof he failed your course, and his advocates (aka your adversaries) further claim you hold the burden to prove the student failed, how would you respond?

In fact, while the ISG findings are a misfit with the pre-war statements on the intelligence, the ISG Duelfer Report is rife with disarmament violations of UNSCR 687. But if hypothetically, ISG had found Iraq pristine, that wouldn't have changed that, by law and policy, the casus belli was Iraq's evident[ial] noncompliance in Saddam's "final opportunity to comply" mandated by UNSCR 1441 and enforced by P.L. 107-243.

The actual international legal controversy with UNSCR 1441 is a procedural controversy over decision authority and consequence that's contained in decisions 12-14 of the resolution. It's akin to the international legal controversy over the "illegal but justified" Kosovo intervention.

On the substance, Iraq was guilty of breaching UNSCR 687 — "Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein" (UNSCR 1441).

Regarding "frameworks for diplomacy and political debate" [Loyola], I recommend that you review my contextual frame-setting explanation of the law and policy, fact basis of the mission:
https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html

It shines a light on this issue from various aspects because the foundation of my take is the burden of proof was on Iraq to prove compliance with the "governing standard of Iraqi compliance" mandated in the UNSCR 660-series resolutions, the casus belli was Iraq's material breach across the board with the terms of ceasefire, and the overarching purpose of the Iraq intervention was to "bring Iraq into compliance with its international obligations" (P.L. 105-235).

Setting the record straight matters to me because the cultural legacy of OIF for our Iraq veterans and their families, especially for the children who will only ever know their KIA-OIF father (or mother) through the cultural prism of OIF, now depends nearly exclusively on whether the President's decision for OIF was justified in the first place. President Obama has assured that there will be no Eisenhower course to cultural redemption of the Korean War for OIF.

At the same time, the US-led enforcement of the terms of the Gulf War ceasefire was the defining international enforcement of the post-Cold War for the leader of the free world. It was a paradigm. The cultural conception and political judgement of the Iraq intervention orients our course ahead for every American international design.

For example, regarding Iran, simply stated, if Presidents HW Bush, Clinton, and Bush were right on Iraq, then President Obama has been wrong on Iran. And vice versa.

Right now, we're making generational decisions for American policy and politics based on misconceptions about OIF. We're being tricked. Clear-minded decisions for our national course, even if we eventually come around to like decisions, requires us to set the record straight on the law and policy, fact basis of OIF at the premise level.



from: [Eric LC]
to: [Mario Loyola]
date: May 24, 2015, 11:47 AM
subject: UNSCR 1441 did place the burden of proof on Iraq

Add to my 23MAY05[15] e-mail, regarding the UNMOVIC Cluster[s] Document and Hans Blix's remarks:

The Special Commission of UNSCR 687 (ie, UNSCOM then UNMOVIC) was not mandated by UNSCR 687 to ascertain that Iraq was armed as indicated [by pre-war intelligence estimates]. The Special Commission was mandated by UNSCR 687 to verify that Iraq had disarmed as mandated.

When Blix said he could not conclude that Iraq had disarmed as mandated, that confirmed Iraq remained in material breach of UNSCR 687.

But when Blix said he could not conclude that Iraq was armed as indicated [by pre-war intelligence estimates], that statement was outside the operative enforcement procedure for UNSCR 687.

The UNSCR 687 Special Commission was not designed to ascertain whether Iraq was proscriptively armed because the disarmament process was built on the carrying presumption of Iraq's guilt that was established in the factual baseline of the conditional ceasefire. Iraq's guilt of proscribed armament was presumed until Iraq cured its guilt by proving it had disarmed as mandated by UNSCR 687.

Again, the UNMOVIC Cluster[s] Document finding of "about 100 unresolved disarmament issues" was conclusive that Iraq had not disarmed as mandated by UNSCR 687, which confirmed Iraq remained in material breach for casus belli.



from: [Eric LC]
to: [Mario Loyola]
date: May 27, 2015, 9:35 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Add to my 23MAY15 e-mail, regarding how to read the operative paragraphs of UNSCR 1441:

The 14 decisions of UNSCR 1441 that follow "Determined to secure full compliance with its decisions, Acting under Chapter VII of the Charter of the United Nations" and constitute the resolution's operative paragraphs broke down to 3 groups: decisions 1-2, decisions 3-11, and decisions 12-14.

The first group, decisions 1-2, mandated the basic task and condition — the heart — of UNSCR 1441.

Decision 1, the basic condition, reset Iraq's material breach of the ceasefire, particularly Iraq's noncompliance with the WMD-related disarmament mandates in paragraphs 8 to 13 of UNSCR 687. Decision 2, the basic task, afforded Iraq a "final opportunity to comply" with "full and verified completion" of the disarmament process mandated by UNSCR 687, and for that purpose, mandated an "enhanced inspection regime".

The second group, decisions 3-11, mandated the "enhanced" part of the "enhanced inspection regime" with a heightened "governing standard of Iraqi compliance" for UNSCR 1441.

Decisions 3-11 were formulated to counter the Iraqi denial and deception practices used against the UNSCOM inspections. Again, the only condition of "further material breach" in UNSCR 1441 was in decision 4 and it referred to Iraq failing to meet the mandated standard for the "enhanced inspection regime" in the sense of additional infraction. "Further material breach" did not refer to a restriction of the scope of the disarmament process mandated by UNSCR 687. There was no amnesty in UNSCR 1441. In fact, the UNMOVIC inspections that found “about 100 unresolved disarmament issues” (Cluster[s] Document), the principal trigger for Operation Iraqi Freedom, explicitly took up from the UNSCOM inspections that triggered Operation Desert Fox.

The third group, decisions 12-14, was related to decision authority and consequence if Iraq failed to comply with decisions 1-11, but its mandate was ambiguous.

On the one hand, decision 12 mandated the Security Council to "convene" to "consider the situation" if Iraq failed to comply with the "governing standard of Iraqi compliance" and, like previous resolutions, decision 14 stated the Security Council was "seized of the matter". On the other hand, decision 13 warned of "serious consequences" for Iraqi noncompliance with the "governing standard of Iraqi compliance" and the preamble "recall[ed]" UNSCR 678. When Iraq failed to comply in its "final opportunity to comply", President Bush faced the same deadlock in the Security Council that President Clinton faced for ODF, and Bush's decision for OIF followed Clinton's legal precedent with ODF.



from: [Eric LC]
to: [Mario Loyola]
date: Jun 3, 2015, 5:14 AM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

At your convenience, I would like your thoughts on my response (and addenda) to your reading of UNSCRs 687 and 1441 and UNMOVIC findings in that light.

The gap between our understandings is concerning because the burden of proof in the "governing standard of Iraqi compliance" (UNSCR 1441) goes to the heart of the issue both assessing the basic justification of Operation Iraqi Freedom and, where past is prologue, orienting similar [international law] enforcement procedures moving forward, such as with Iran.



from: [Eric LC]
to: [Mario Loyola]
date: Jun 4, 2015, 3:13 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

I agree the problem was chiefly political, rather than legal, in nature.

I say [link] in my OIF FAQ, "[On the facts, t]he decision for Operation Iraqi Freedom was right on the law and justified on the policy[;] yet [it has been] distorted in the politics". I also describe the political controversy in greater depth here: https://operationiraqifreedomfaq.blogspot.com/2012/05/problem-of-definition-in-iraq.html.

You've identified the nub of the controversy as the working definition of "further material breach" in UNSCR 1441[,] which established the "enhanced inspection regime" for Saddam's "final opportunity to comply" with UNSCR 687 .

That's where your take concerns me.

There is an argument that can be made, centered on decision 14 of UNSCR 1441, that the President's decision for OIF was illegal under international law. However, your view that under UNSCR 1441 "serious consequences" were to be triggered only by a "further material breach" defined as positive confirmation by UNMOVIC of the pre-war intelligence [estimates] is unfounded.

Procedural dispute is primarily assessed legalistically, albeit debated in political (diplomatic) context. Legalistically, there is no dispute over the working definition of "further material breach" in UNSCR 1441. "Further material breach" in the "enhanced inspection regime" mandated by UNSCR 1441 is defined in decision 4.

Politically, it's easy to understand why, for the sake of competing interests, the Russians, Chinese, and French would exploit the ambiguous decision process in decisions 12-14 by importing an arbitrary definition of "further material breach" inapposite of the term defined in decision 4. March 2003 wasn't the first time they deviated from the actual terms of ceasefire established by UNSCR 687. The same parties opposed the US-led enforcement with Iraq on the same grounds during the Clinton administration, particularly as President Clinton's enforcement efforts peaked in 1998.

Therefore, I am puzzled why you of all people share our competitors' plain misinterpretation of "further material breach" (UNSCR 1441) to characterize a "U.S. decision to ignore the process established by the resolution" [Loyola].

Your view that casus belli was not established according to UNSCR 1441 is incorrect.

The "enhanced inspection regime" of UNSCR 1441 confirmed Iraq remained in material breach in its "final opportunity to comply with its disarmament obligations under relevant resolutions of the Council". Setting aside the imported arbitrary definition of "further material breach", decision 13 explicitly tied "serious consequences" to "continued violations" not limited to a "further material breach" — of any kind. UNMOVIC explicitly took up from UNSCOM and confirmed Iraq's "continued violations" of UNSCR 687. Moreover, UNMOVIC as well as the Iraq Survey Group showed that Iraq was guilty of "further material breach" as defined in UNSCR 1441 and the basic terms of UNSCR 687.

As I said, the ISG Duelfer Report is rife with disarmament violations of UNSCR 687. Saddam was in fact guilty on the WMD issue, just not in the same way indicated in the pre-war intelligence [estimates].

You are also incorrect to say we ignored the process established by UNSCR 1441.

Per decisions 1-11, the US supported UNMOVIC as it fulfilled its mandate under UNSCR 1441 with the finding of "about 100 unresolved disarmament issues" in breach of UNSCR 687. In fact, UNMOVIC was mandated to "update" the Security Council on Iraq's compliance by January 26 at the latest. Hans Blix's January 27 'interim' report to the Security Council was sufficient to establish casus belli. Yet President Bush opted to allow the UNSCR 1441 inspections to complete with the late presentation of the Cluster[s] Document on March 7.

Then, per decision 12, the US came together with the Security Council to "convene" to "consider the situation" presented by the UNMOVIC Cluster[s] Document. In contrast, President Clinton had ordered ODF immediately upon receipt of the UNSCOM Butler Report with no further consultation with the UNSC. Finally, 10 days following the presentation of the UNMOVIC Cluster[s] Document to the UNSC, President Bush announced OIF on March 17, 2003 while citing the standing authorization of UNSCRs 678 and 687, which was carried forward in UNSCR 1441.

While there is a dispute whether the US (and UK) or the Security Council held the ultimate authority to determine the reaction to UNMOVIC's confirmation of Iraq's material breach, we did not ignore the process established by UNSCR 1441.

As I say [link] in my OIF FAQ, "The prevalent myth that Operation Iraqi Freedom was based on a lie relies on a false premise that shifted the burden of proof from Iraq proving it had disarmed in compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates."

If, as you've framed the issue, the controversy over the decision for OIF turns on the working definition of "further material breach" in UNSCR 1441, then the US is vindicated because the working definition in UNSCR 1441 supports the President's decision [link] whereas opponents of OIF rely on an imported arbitrary definition inapposite of the term defined in decision 4.

For the actual, weighty legalistic argument against the President's decision for OIF, start with decision 14 rather than an unfounded reading of decisions 4 and 13. Then, with a reading of decision 14 in hand, compare President Bush's decision for OIF with President Clinton's decisions regarding the Balkans and, directly analogous, Iraq.

Off topic. Here's my packet of references in support of your May 29 column [link] in the Wall Street Journal, which I didn't post there because WSJ requires a full name to comment:

1. "Saddam: What We Now Know" by Jim Lacey* draws from the Iraq Survey Group (re WMD) and Iraqi Perspectives Project (re terrorism):
http://www.nationalreview.com/article/277115/saddam-what-we-now-know-jim-lacey
* Dr. Lacey was a researcher and author for the Iraqi Perspectives Project:
http://fas.org/irp/eprint/iraqi/
2. Explanation of the law and policy, fact basis for Operation Iraqi Freedom:
https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html
3. "UN Recognizes 'Major Changes' In Iraq" by VP Joe Biden on behalf of the UN Security Council:
http://www.un.org/press/en/2010/sc10118.doc.htm
4. "Withdrawal Symptoms: The Bungling of the Iraq Exit" by OIF senior advisor Rick Brennan:
https://www.foreignaffairs.com/articles/united-states/withdrawal-symptoms
5. "How Obama Abandoned Democracy in Iraq" by OIF official and senior advisor Emma Sky:
http://www.politico.com/magazine/story/2015/04/obama-iraq-116708_full.html#.VTb5WLt0x0s

Plus, my take on the US exit from Iraq:
https://operationiraqifreedomfaq.blogspot.com/2012/09/an-irresponsible-exit-from-iraq.html

I'm glad you're willing to continue the conversation, Mario. This issue is vital looking back and ahead. I can't make a difference at a level that matters, but you might.



from: [Eric LC]
to: [Mario Loyola]
date: Jun 4, 2015, 8:33 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Add to my e-mail from earlier today, regarding the legalistic objection to OIF under UNSCR 1441:

First of all, like you, I don't favor the "inherent" right of self-defense against attack articulated in Chapter VII as a legal justification for OIF. There are clearer justifications for OIF. That being said, the UNSCRs and US laws did establish that Iraq's noncompliance with the UNSCRs was a threat, so the point can be raised politically, if not legalistically. In fact, the ISG and IPP uncovered that Saddam had maintained, besides proscribed "preserved capability", an active program within the IIS capable of producing weapon for unconventional operations and Saddam's terrorism was actually more robust than had been indicated before OIF.

As I said, the politically-based view that, under UNSCR 1441, "serious consequences" were tied to "further material breach" defined as a positive confirmation by UNMMOVIC [UNMOVIC] of the pre-war intelligence [estimates] is legalistically unfounded.

Proving Iraqi armament as indicated [by pre-war intelligence estimates] simply was not UNMOVIC's mandate, which was to test Iraq's compliance and verify Iraqi disarmament as mandated.

Neither "further material breach" as defined in decision 4 nor "serious consequences" which were explicitly tied to "continued violations" in decision 13 supports the politically-based view. Neither term appears elsewhere in UNSCR 1441 to open the door to an alternative meaning.

When the terms are applied to the UNMOVIC and ISG fact findings, "further material breach" and "serious consequences" according to decisions 4 and 13 support the President's decision for OIF.

So ... if President Bush's decision for OIF was correct according to the preamble and decisions 1-11 and 13 of UNSCR 1441, then where is the legalistic objection to OIF under UNSCR 1441?

By process of elimination, the legalistic objection to OIF is found in decisions 12 and 14 of UNSCR 1441.

To wit, "12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security;"

Note that decision 12 was oriented on Iraqi compliance with UNSCRs, not on UNMOVIC demonstration of Iraqi armament matching the pre-war intelligence [estimates].

The only clear action mandated in decision 12 was for the UNSC to convene upon receipt of an UNMOVIC report of Iraqi noncompliance per "paragraphs 4 or 11" — for example, the UNMOVIC Cluster[s] Document. The US abided by that mandate, so there was no UNSCR 1441 process ignored there.

The controversy is centered on the operative meaning of "consider" in decision 12 (unless 'consider' is understood as a term of art in IL [international law] that I'm unaware of).

"Consider the situation and the need for full compliance" [UNSCR 1441] — decision 12 did not limit decision authority to the UNSC to 'decide' or 'determine' the reaction to evidence of noncompliance in Iraq's "final opportunity to comply" with "full and verified completion" of the disarmament process of UNSCR 687. It did not even mandate the UNSC to 'judge' or 'assess' the "need for full compliance". Merely to "consider" it.

Once the Security Council duly convened per decision 12 and "consider[ed] the situation" presented by the UNMOVIC Cluster[s] Document, the yawning ambiguity of "consider" opened the door both ways.

Russia, China, and France exploited the ambiguity of "consider" to import an arbitrary definition of "further material breach" — which, puzzlingly, you accepted — and attempt to replace the "governing standard of Iraqi compliance" mandated in UNSCR 1441 with an ad hoc standard that would have favored Saddam's "denial and deception operations" (Duelfer Report).

Meanwhile, the ambiguity of "consider" allowed the US and UK to uphold the "governing standard of Iraqi compliance" mandated in UNSCR 1441 and rely on the standing authorization of UNSCRs 678 and 687 for OIF following the precedent set by President Clinton and PM Blair with ODF.

I assume you understand the longstanding disagreement over the operative meaning of "Decides to remain seized of the matter" in decision 14, particularly when there are standing Chapter VII authorizations like UNSCR 678, likely better than I do.

Even at the UN, the ["]politics of diplomacy["] [Loyola] should not be detached from their legalistic underpinning and moored instead in false premise, which has happened with OIF. The political corruption carries into the current controversy over the Iran negotiations. Hence, the importance of setting the record straight on OIF moving forward.

What do you think?



from: [Eric LC]
to: [Mario Loyola]
date: Jun 6, 2015, 11:57 AM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

Your suggestion makes me sympathize (and empathize) already with the hapless 2L assigned to be my spader. [Note: Professor Loyola suggested that I convert the content from this e-mail thread into an article for the Texas Review of Law & Politics.]

Litmus test: Are you convinced by our conversation that has progressed from your May 13 NR [National Review] column?

The importance of your answer is less about your celebrity as a pundit than your type.

Stacked on the Republican candidates' consensus on the [Megyn] Kelly hypothetical [link], your reading of UNSCR 1441 that the resolution explicitly tied "serious consequences" to "further material breach" defined as UNMOVIC confirmation of the pre-war intelligence [estimates], thus effectively placing burden of proof on the US, showed me that the problem is deeper than what I had believed was only propaganda warping the zeitgeist. You've shown me that misconception about the why of OIF has metastasized into the reaches of our policy establishment so that a fundamental false premise has become clothed as truth.

Living there, the impact is greater than judgement looking back but also, as you show with your May 13 NR column, multiplying in policy decisions going forward.

If, one-on-one in e-mail, I can't even convince a Republican foreign-policy legal counsel who is evidently, based on your May 13 NR column, mindful of the heart of the issue (ie, burden of proof and standard of compliance for UNSCR 687 enforced pursuant to UNSCR 1441) that is necessary to properly assess the justification for OIF, then there is little hope I can set the record straight in the zeitgeist.

Related, what difference can be made with an article in http://trolp.org/? I don't ask you that to dissuade myself, but drawing on your experience, what effect can it have downstream?



from: [Eric LC]
to: [Mario Loyola]
date: Jun 12, 2015, 1:24 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

...

Related, check out this interview with President Bush by the newsletter, Israel Hayom:
http://www.israelhayom.com/site/newsletter_article.php?id=26127

I appreciate that the IH interviewers are exceptional in correctly stating the casus belli for OIF as Iraq’s noncompliance with the UNSC resolutions, ie, material breach of the terms of ceasefire. In contrast, most US media assume the false premise that the casus belli for OIF was administration pre-war statements on the intelligence.



from: [Eric LC]
to: [Mario Loyola]
date: Jun 18, 2015, 2:15 AM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

I have no connection to UT Law. Your suggestion was the first I heard of TROLP. But looking over its website, the maverick ethos of TROLP's origin story makes it seem like a fit for an article derivative of my OIF FAQ (https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html).

...

Part of me is self-conscious about explaining something that should be obvious and common knowledge already given that the Saddam problem was frontpage news for over a decade before OIF and the primary sources are straightforward and easily accessed on-line. Then I read something like this that's absurdly off the mark and it tells me that setting the record straight, though it shouldn't be necessary, is a real need: http://www.politifact.com/truth-o-meter/statements/2015/jun/16/facebook-posts/meme-says-bill-clinton-george-w-bush-had-basically/



from: [Eric LC]
to: [Mario Loyola]
date: Jun 18, 2015, 12:05 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

... [G]oing back to the original issue you raised in your May 13 NR [National Review] article — ie, our approach to disarming Iran carried forward from our approach to disarming Iraq — I recommend the perspective of this elite source on the Iraq disarmament process who offers valuable insight for the Iran disarmament process: former UNSCOM chair Charles Duelfer who headed the Iraq Survey Group.

Duelfer has a website with an occasional but active blog where he comments on disarmament issues, including Iran: http://www.charlesduelfer.com/index.php.

I haven't read his book, but I have read several of his articles and blog posts. Duelfer's writings have informed a significant part of my understanding of the UN weapons inspections with Iraq, including — relevant to your May 13 NR article — the effect of the conflicts in the Security Council.

While Duelfer criticizes the intelligence community and our presidents' (ie, not only Bush's) decisions with Iraq, he is clear that Iraq failed to meet its burden of proof for the "governing standard of Iraqi compliance" (UNSCR 1441) for disarmament.

Duelfer's experience with Iraq's noncompliance informs his worry over the Obama administration's negotiations with Iran.



from: [Eric LC]
to: [Mario Loyola]
date: Jun 18, 2015, 1:07 PM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

...

The only thing that separates me from anyone else is I reacted to the inflamed controversy over the President's decision for OIF by wondering, 'How did Clinton use the intel for Operation Desert Fox?'. Then I took advantage of the new-fangled internet to look up primary sources to find out for myself. Which quickly formed the kernel of my realization that the law and policy basis, enforcement procedure, and political rifts for Operation Iraqi Freedom carried forward progressively from Operation Desert Fox. That, in fact, President Clinton, whose entire presidency was preoccupied by the Iraq enforcement, rather than President Bush, who only came on for the coda in the revaluating light of the 9/11 attacks, is the best source for understanding OIF.

... I'll have to continue to hope someone like you, with sufficient name, will be convinced to pick up the thread of my semi-anonymous work at a degree that can make a difference looking back and moving forward.



from: [Eric LC]
to: [Mario Loyola]
date: Jun 19, 2015, 1:12 AM
subject: UNSCR 1441 did place the burden of proof on Iraq

Mario,

My OIF FAQ (https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html) is a ["]public affairs piece["] [Loyola]. It's a narrative reframe that's grounded in primary sources throughout.

UNSCR 1441, as a public affairs piece, supports the President's decision for OIF in the preamble and decisions 1-11 and 13.

Decision 12, after its mandate to "convene" upon report of Iraqi violation, is ambiguous with "consider" to the point of meaningless blank slate.

Decision 14's "seized of the matter" is the basis for the claim by Kofi Annan and others that the President's decision for OIF was illegal, but "seized of the matter" says nothing about the burden of proof and standard of compliance. It's about decision authority only. The same "seized of the matter" is the basis for our opponents' claim that every US-led post-Gulf War military action with Iraq, including the no-fly zones, ODF, and OIF (before UNSCR 1483), was illegal due to lack of specific UNSC authorization. Whereas Presidents Clinton and Bush cited the carrying UN authorization of UNSCRs 678 and 687 for those military actions.

That's a recap to say that in the ["]politics of diplomacy["] [Loyola], whichever silver-tongued foreign diplomat managed to convince you that UNSCR 687 required affirmative demonstration of proscribed Iraqi armament while [and] UNSCR 1441 effectively gave Iraq an amnesty for its standing disarmament violations and placed the burden on the US and UN to prove Iraq was armed as indicated by the pre-war intelligence[ estimates,] lied to you. Nothing in the text of UNSCRs 687 and 1441, the US law and policy that enforced the UN mandates, nor the record of UNSCOM and UNMOVIC (as far as I've read) supports that reading of the burden of proof and standard of compliance for disarming Iraq. That reading was simply pro-Saddam, anti-US propaganda.

Worse, it wasn't even new propaganda in 2002-2003. It was recycled. The same pro-Saddam, anti-US propaganda was used against Clinton's Iraq enforcement in 1998. The difference is in 1998, the Democrats didn't incorporate our opponents' pro-Saddam, anti-US propaganda into US politics for Operation Desert Fox. But in 2002-2003, the Democrats incorporated it for Operation Iraqi Freedom.

In politics, when you're confronted with opposing propaganda that's transparently false and recycled to boot, when the UN-mandated "governing standard of Iraqi compliance", the US law and policy enforcing it, and the determinative fact findings are plainly on your side, you're supposed to use the fact pattern to rebut the opposing propaganda. The Republicans have all they need to set the record straight. Incredibly, the Republican candidates for President have chosen to stipulate the opposing propaganda, instead, and with that alchemy have transformed rebuttable false premises into facts in evidence.

It's late, but not yet too late. With Iraq, Iran, the Middle East, and the War on Terror all live-wire on the table, Republicans can still choose to counter in the politics — domestic and international — by setting the record straight to reframe the political discourse, and thereby re-lay the foundation necessary to correct the course of the leader of the free world.

I appreciate you reading along. As you said in the beginning, it's important. ...



Related: How Republicans should talk about the Iraq issue.

Tuesday, May 5, 2015

Recommendation to Hillary Clinton on how to talk about her Iraq vote

PREFACE: Go here for Hillary Clinton's actual approach to talking about her Senate vote for Public Law 107-243. Go here for criticism of Clinton's 'evolved' position on her Senate vote for the 2002 AUMF.



from: [Eric LC]
to: info@hillaryclinton.com
date: Tue, May 5, 2015 at 12:40 PM
subject: Recommendation: How to talk about your Iraq vote

Mrs. Clinton,

Your critics and competitors for the Democratic nomination for President hold against you, the same as they did in 2008, your Senate vote for the 2002 Authorization for Use of Military Force against Iraq (Public Law 107-243).

However, if the partisan politics are set aside, a focused reading of the primary sources for Operation Iraqi Freedom (OIF) shows that your support of the US-led enforcement of Saddam's "final opportunity to comply" (UNSCR 1441) in order to "bring Iraq into compliance with its international obligations" (Public Law 105-235) was well founded.

My recommendation for how to talk about your Iraq vote is to set the record straight on the grounds for Operation Iraqi Freedom.

To help in that, my explanation of the law and policy, fact basis for Operation Iraqi Freedom:
https://operationiraqifreedomfaq.blogspot.com/

My explanation is drawn from the primary sources of the mission such as the Gulf War ceasefire UN Security Council resolutions that set the "governing standard of Iraqi compliance" (UNSCR 1441), the US law and policy that enforced the UNSCRs, the conditions and precedents that set the stage for OIF, and the determinative fact findings that triggered the decision for OIF.

The law and policy, fact basis of OIF is straightforward. The Security Council resolutions of the Gulf War ceasefire mandated the "governing standard of Iraqi compliance" (UNSCR 1441). Since 1990-1991, starting with UNSCR 660 and then Public Law 102-1, the US president enforced Iraq's compliance with the UNSC resolutions under mandate of US law and policy. From 1990 to 2003, Saddam's intransigent noncompliance with the spectrum of UN mandates, most notably the terrorism mandates of UNSCR 687, disarmament mandates of UNSCR 687, and humanitarian mandates of UNSCR 688, progressed through the HW Bush, Clinton (your husband), and Bush administrations. At the decision point for OIF in Saddam's "final opportunity to comply" (UNSCR 1441) in 2002-2003, the determinative fact findings show Saddam was evident[ial]ly noncompliant across the board with the UN mandates. In other words, Saddam was in fact in material breach of the Gulf War ceasefire.

The law and policy enforcing the Gulf War ceasefire plainly show the casus belli was always Iraq's material breach of the UNSCR 660-series resolutions.

Although the inaccuracy [predictive imprecision] of the pre-war intelligence [estimates] has been heavily criticized, the "governing standard of Iraqi compliance" (UNSCR 1441) for disarmament was mandated by UNSCR 687 and related resolutions, not the intelligence. The main element of President Bush's decision for Operation Iraqi Freedom was the UNMOVIC Cluster[s] Document finding of "about 100 unresolved disarmament issues" that confirmed Saddam's material breach of UNSCR 687, which was analogous to the UNSCOM Butler Report that was the main element of President Clinton's decision for Operation Desert Fox. Then the Iraq Survey Group Duelfer Report found a host of disarmament violations that corroborated Saddam's material breach of UNSCR 687. Of course, Saddam's material breach of the non-armament mandates of the Gulf War ceasefire, including the terrorism mandates of UNSCR 687 and humanitarian mandates of UNSCR 688, is undisputed. They were also enforcement triggers.

President Clinton was right to strictly enforce the Gulf War ceasefire despite the opposition of the Security Council members that advocated for Saddam in 1998 and again in 2002-2003. Your husband was right to impress the gravity of Saddam's "clear and present danger to the stability of the Persian Gulf and the safety of people everywhere" (President Clinton) upon you as a Senator and his successor in the White House. According to the Iraq Survey Group and the Iraqi Perspectives Project that studied captured regime documents, President Clinton's dire warnings about Saddam from 1998-1999 were correct. But for the regime change, Saddam would have rearmed — was in fact already rearming in violation of UNSCR 687 — Saddam was a terrorist and tyrant, and Saddam's peculiar decision-making, ambition, and the nature of his regime were not reconstructed as mandated by the Gulf War ceasefire.

When the the law, policy, and facts underlying Operation Iraqi Freedom are correctly understood, it is clear that your husband and his successor in the White House were right about Saddam. Your critics and competitors for the Democratic nomination for President are wrong now and they were wrong in 2008. You were right to vote for the 2002 AUMF.

The best thing for your candidacy for President, the honor of our Iraq veterans, the good of the nation and the peoples of the world whom rely on stalwart American leadership is to set the record straight on the law and policy, fact basis of Operation Iraqi Freedom.

Friday, April 24, 2015

How Republicans should talk about the Iraq issue

PREFACE: Early in 2015, it became alarmingly evident that the Republican candidates for President, including and especially Jeb Bush, had a fatally flawed, harmful approach to the Iraq issue. Below is an example of the corrective advice I've tried to give the GOP and Republicans.



From: [Eric LC]
to: ecampaign@gop.com [et al.]
date: Fri, Apr 24, 2015 at 10:32 AM [etc.]
subject: How to talk about Operation Iraqi Freedom

GOP[ and Republicans],

In a recent interview [with Hugh Hewitt], a Republican candidate for President [John Kasich] was asked, "Did President Bush make a mistake in invading Iraq?" He responded, "I don’t want to go back and redo that. I mean, it was there, and I don’t want to disparage anybody who served our country. I’m just going to reserve my comment on that." In February, another Republican candidate for President [Jeb Bush] mentioned "mistaken intelligence" when asked a similar question and expressed his wish not to "re-litigate" the Iraq issue.

With few exceptions, prominent Republicans have adopted the tack of demurring to 're-litigate' the Iraq issue. This is a mistake. Their reticence is interpreted as implicit acknowledgement that the decision for Operation Iraqi Freedom (OIF) was wrong, thus invalidating the grounds for the Iraq intervention and dismissing its hard-won successes (such as the Counterinsurgency "Surge"), mitigating or altogether absolving President Obama of his missteps, and validating the guilty characterization of President Bush and the Republican Party with the blame for current events.

Moreover, the view that OIF was wrong is the basic justification for President Obama's policy choices with Iraq, Iran, Syria, Libya, and others.

I can recommend a more constructive strategy for Republicans than the counter-productive demurral to 're-litigate' the Iraq issue: re-litigate it from the ground up to set the record straight.

Do not concede the opposition's misrepresentation of the reasons for Operation Iraqi Freedom. Conceding it sets you up for failure from the word go by boxing you into the frame of a strategically false narrative.

Break that box, instead. Constructive talk about the Iraq intervention requires a reset of the frame with wholesale correction of the popular misconceptions about the grounds — the 'why' — of the mission.

Use this explanation of the law and policy, fact basis for Operation Iraqi Freedom: https://operationiraqifreedomfaq.blogspot.com/.

The main theme is the law and policy plainly show the casus belli was Iraq's evident[ial] noncompliance across the board with the UNSCR 660-series resolutions, i.e., material breach of the Gulf War ceasefire — not pre-war statements based on the intelligence estimates. The explanation is drawn from primary sources such as the Gulf War ceasefire UN Security Council resolutions that set the "governing standard of Iraqi compliance" (UNSCR 1441), the US law and policy that enforced the UNSCRs, the conditions and precedents that set the stage for OIF, and the determinative fact findings that triggered the decision for OIF.

Once you have corrected the popular misconceptions about OIF, then — and only then — will you be able to talk about the Iraq issue in a constructive way that realigns the leadership course of our nation and properly honors our men and women and our partners who have served selflessly in Iraq for the right reasons.

At the same time, setting the record straight in the zeitgeist and resetting the frame of the national discussion on the Iraq intervention can focus an inquisitorial spotlight on those parties that have corrupted American leadership by misrepresenting the Iraq intervention. They have caused the harmful consequences of American leadership failure and dishonored our Iraq veterans by denigrating their mission with a false narrative.

In short, stop weakly shying away from the controversy. Vigorously re-litigate the Iraq issue with the basic truth of the matter. Flip the Iraq issue in the zeitgeist. Let the American people know that at the decision point in March 2003, President Bush made the right — the harder right — leadership decision and the Iraq intervention was an honorable, justified mission that was succeeding when President Bush left office in January 2009.



Related: Recommendation to Hillary Clinton on how to talk about her Iraq vote, Comments critical of presidential candidates Trump, Clinton, and McMullin's positions on OIF, Critique of Matt Latimer's "The Don Rumsfeld the Obituaries Won’t Write About", Reaction to Douglas Feith's Wikipedia profile regarding Iraq, Rebuke of Jordan Chandler Hirsch's "Freedom from Iraq: How the GOP Can End the War over the War", Correcting Mario Loyola: UNSCR 1441 did place the burden of proof on Iraq, Regarding Secretary of State Powell's speech at the UN Security Council on February 5, 2003, and Decision Points suggests President Bush has not read key fact findings on Iraq carefully.