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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: [me]
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: [me]
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: [me]
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.



Critical responses to pundits:
Explaining the grounds for Operation Iraqi Freedom to a law professor (Chibli Mallat);
Correcting Politifact's fundamental distortion of the Gulf War ceasefire enforcement;
Comments on Stephen Knott's "When Everyone Agreed About Iraq";
Augmenting William Inboden's critique of J.E. Smith's Bush biography regarding Iraq;
Objection to Paul Miller's characterization of OIF as an "outlier" in American Power and Liberal Order;
Critique of the Iraq portion of chapter one of Anne Pierce's A Perilous Path;
Critical response to John Rentoul's "Chilcot Report: Politicians".

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