Criticisms and suggestions for "International Law and the War in Iraq" (John Yoo, 2003)

PREFACE: The John Yoo is a professor at UC Berkeley law school. More significantly, "From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers."

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from: [Eric LC]
to: [John Yoo]
date: Sun, Dec 10, 2017 at 7:03 AM
subject: Edited v1.1: Criticisms and suggestions for "International Law and the War in Iraq" (July 2003) Re: President Bush's decision on Iraq was correct on the law and facts

Professor Yoo,

Due to the White House's recent derisive invocation of the Iraq intervention to put down President Bush's implied criticism of President Trump, followed the next day by Prime Minister Brown's accusation that the Bush administration lied about Saddam's WMD to trick the UK into war with Iraq (see my rebuttal), I'm moved to e-mail you my criticisms and suggestions for your monograph, International Law and the War in Iraq (2003), with the hope that they will encourage and help you to set the record straight on the Iraq issue in the public discourse. Public corrective on the Iraq issue is urgently needed.

First, before I begin the critical exercise, the compliance basis for the decision for Operation Iraqi Freedom was the proper one, and knowing what we know now, it has been well substantiated. The Bush administration should have hewed to the established compliance frame instead of tacking on an "independent" 2nd claim of intelligence-based anticipatory self-defense. More on that below.

Criticism:
Your description of the UNSCR 687 WMD disarmament process misstates the procedure with "destroy its chemical and biological weapons and ballistic missiles and agree to on-site inspections" (Yoo). Your construction implies that Iraq was permitted to unilaterally destroy proscribed items and separately agree to inspections, when in fact, destruction was integrated with disclosure, verification, and supervision. Whereas unverified unsupervised unilateral destruction subverted the mandated accountability.

Following Operation Desert Fox, on January 25, 1999, UNSCOM executive chairman Richard Butler clarified the UNSCR 687 WMD disarmament procedure and summarized Iraq's strategy to undermine it:

3. For the conduct of this work [mandated by "Paragraphs 8 and 9, in section C of resolution 687 (1991)"], the resolutions of the Council established a three-step system: full disclosure by Iraq; verification of those disclosures by the Commission; destruction, removal, or rendering harmless, under international supervision, of all proscribed weapons, materials and facilities.
4. From the inception of the relevant work, in 1991, Iraq's compliance has been limited. Iraq acknowledges that, in that year, it decided to limit its disclosures for the purpose of retaining substantial prohibited weapons and capabilities.
5. Actions by Iraq in three main respects have had a significant negative impact upon the Commission's disarmament work:
Iraq's disclosure statements have never been complete;
contrary to the requirement that destruction be conducted under international supervision, Iraq undertook extensive, unilateral and secret destruction of large quantities of proscribed weapons and items;
it also pursued a practice of concealment of proscribed items, including weapons, and a cover up of its activities in contravention of Council resolutions.

It's important to be a stickler about clarifying the disclosure, verification, and supervision elements of the UNSCR 687 "three-step system" (Butler) because anti-OIF propagandists tout Iraq's unverified unsupervised unilateral destruction of proscribed items as proof of false accusation by President Bush and exoneration of Saddam, when in fact, unverified unsupervised unilateral destruction was a critical ceasefire breach.

Suggestion:
Pair President Bush's "axis of evil" quote from the 2002 State of the Union with matching quote from President Clinton's 17FEB98 remarks at the Pentagon regarding the Iraqi threat. For example:

In the next century, the community of nations may see more and more the very kind of threat Iraq poses now: a rogue state with weapons of mass destruction, ready to use them or provide them to terrorists, drug traffickers, or organized criminals, who travel the world among us unnoticed.

Suggestion:
Update the statement, "At the time of this writing, coalition forces in Iraq continue to search for WMD sites; while no weapons have yet been discovered, it may take months if not years to learn the fate of Iraq’s WMD stockpile" (Yoo).

It should be clarified to the public that the Iraq Survey Group's findings are rife with UNSCR 687-proscribed items and activities. The operative definition of WMD violation per UNSCR 687 included more proscribed items and activities than battlefield-ready stockpile. ISG confirmed Saddam was reconstituting his WMD program via the IIS. The Iraqi Perspectives Project also confirmed Saddam's UNSCRs 687 and 688-violating IIS-run domestic, "regional and global terrorism" was vastly underestimated before OIF.

At the same time, it should be clarified to the public that we don't actually know the fate of Iraq's WMD stockpile. The ISG non-findings, which are prevalently portrayed in the politics as unequivocal evidence of absence, are in fact heavily qualified with evidentiary gaps and other practical limitations to the ISG investigation. The ISG report is properly read as a floor, not a complete account of Saddam's WMD. Although David Kay, Charles Duelfer, et al. did their best, the highly adverse conditions they encountered on the ground in Iraq meant the ISG survey of Saddam's WMD was not a thorough investigation. Duelfer's assessment of the fate of Saddam's missing weapons is really a heavily qualified best guess, not a proven disposition.

For more detail, see my criticism of President Bush's memoir for its misrepresentation of the ISG findings as a "thorough search of Iraq".

Suggestion:
You take much care to rebut the opposing view that the decision for OIF was illegal, eg, "Some have argued, however, that, Resolution 678’s authorization had expired. Representatives from France, Germany, and Russia, for example, seemed to take the position that because the current members of the Security Council would not agree to the use of force in the spring of 2003, the 1991 resolution’s broad authorization was somehow extinguished."

I suggest working in the credibility factor that the UNSC members, including and especially Russia, France, and Germany, that led the international opposition to OIF were implicated in the Oil For Food scandal and complicit with Saddam breaking the UNSCR 687 arms embargo.

For example, ISG found that even as the UNSCR 1441 inspections were ramping up in late 2002, France was selling UNSCR 687-proscribed anti-aircraft technology to Iraq. If OIF hadn't happened in March 2003 and the illegal French sale had gone through, then the US and UK presumably would have continued to enforce the UNSCR 688 humanitarian no-fly zones versus newly purchased UNSCR 687-proscribed French anti-aircraft technology.

Clarifying that the casus bellli [belli] was Iraq's evidential noncompliance, and not the pre-war intelligence estimates, sets the stage to highlight the fault of Saddam's accomplices on the UNSC who increased Saddam's threat, exacerbated his harm, and helped cause OIF by encouraging and enabling Saddam's intransigent choice to breach rather than comply and disarm in his "final opportunity to comply" (UNSCR 1441). More on that below.

Nitpick:
UNSCR 678 was adopted in 1990, not 1991.

Criticism:
The choice of frame that "International law permitted the use of force against Iraq on two independent grounds" was a compounding political error. I agree with Jeanne [Jeane] Kirkpatrick that the Bush administration should have hewed to the well established compliance basis for enforcement with Iraq and should not have tacked on a claim of intelligence-based anticipatory self-defense as an "independent" cause of action.

I appreciated your fine explication of the Caroline test and your well-reasoned argument that it should adjust for modern threats. But the novel character of the intelligence-based anticipatory self-defense argument for OIF, no matter how sensible, should have warned President Bush's legal advisors that it was unwise to claim it as an "independent" basis for OIF's casus belli.

It looks like Bush's legal advisers were getting ahead of themselves in trying to set a modern precedent for intelligence-based anticipatory self-defense. Instead of trying to set a precedent with "independent grounds" for OIF, you should have incorporated the component parts of anticipatory self-defense in the established compliance-based case against Saddam for future reference, while making sure to strictly frame the case against Saddam with the well established operative context of the UNSCR 660-series compliance enforcement.

In fact, the defense and compliance enforcement grounds were already related because Saddam's threat was defined as and measured by the "threat [of] Iraq's non-compliance with Council resolutions" (UNSCR 1441), ie, Iraq's ceasefire breach. Saddam's noncompliance was demonstrably evidential and thus indisputable, and it was plainly stated as the casus belli in the operative US law, policy, and precedent, and UNSCRs. Yet the Bush administration's "independent" 2nd claim of intelligence-based anticipatory self-defense enabled anti-OIF propagandists to obfuscate in the politics that Saddam's evidential ceasefire breach was the casus belli.

Evidence of Bush's legal advisors getting ahead of themselves is exemplified in your statement, "In future cases, the possession of WMD and signs of hostile intent must be taken into account in deciding whether to use force preemptively. That decision will rely, in part, on intelligence about a rogue nation’s WMD programs, their ability to acquire components and technical knowledge, and their ability to assemble a weapon."

Instead of trying to litigate "future cases", you should have stayed focused on the task at hand of properly reiterating the long established case against Saddam, wherein the threat of Saddam's WMD was not primarily defined by and based on the intelligence. Rather, the threat of Saddam's WMD was primarily defined by the UNSCR 687 mandates and based on Iraq's evidential noncompliance in the operative context of Iraq's burden to prove it disarmed upon the UNSCOM/IAEA-established fact of Iraq's proscribed armament. The pre-war intelligence, if raised at all, should have been carefully presented only as supporting indicators of Iraq's noncompliance within the operative context of the "threat [of] Iraq's noncompliance" (UNSCR 1441) and Saddam's burden of proof, not as "evidence" for an "independent" cause of action that obfuscated the well established, operative grounds for enforcement.

The "independent" 2nd claim of intelligence-based anticipatory self-defense opened the door for anti-OIF propagandists to shift the burden of proof and assert the legally inapposite but politically viral claim that the legitimacy of OIF rested on proving the predictive precision of pre-war estimates.

It was a dumbfounding mistake. The Clinton administration spoon-fed its successor a long developed mature compliance-based case for regime change against intransigently noncompliant Saddam. As you explained, President Bush properly carried forward the compliance-based case against Saddam. Yet Bush [officials] also chose to deviate from his predecessor by tacking on an [inapposite] "independent" 2nd claim that relied on misrepresenting speculative pre-war estimates of Saddam's secret holdings as "evidence" of specific armament. That's an obviously improper use of intelligence in general, and worse in the specific instance, the struggle of Western intelligence to assess Saddam's WMD versus rigorous Iraqi counter-intelligence was well known by the time that Bush entered office.

Worse still, the notion of finding WMD in Iraq to match the pre-war estimates was always unrealistic. The UNSCR 687 disarmament process, OIF invasion, and post-war occupation were not designed to seize, guard, and preserve evidence in order to later prove the predictive precision of the pre-war estimates. If the burden of proof was shifted to the US to prove the predictive precision of the pre-war estimates, then of course, OIF would be de-legitimated given that Saddam had a long, practically free hand to conceal, alter, and destroy evidence before and during the ex post ISG investigation.

See my rebuttal to Gordon Brown's new argument against OIF for a proper apposite presentation of the compliance-based case for regime change against Saddam.

Given that intelligence analysis is by nature inexact, then how does the leader of the free world sufficiently enforce against a rogue nation's WMD threat while also guarding against ex post accusations like Brown's conjectural accusation of conspiracy? The answer is rigorously upholding a UNSCR 687-type disarmament process which establishes and presumes the rogue nation's guilt of proscribed armament, and fixes the burden of proof on the rogue nation to comply and disarm in accordance with a comprehensive "governing standard". Clarify that noncompliance, rather than intelligence, establishes threat and triggers enforcement.

Evidential noncompliance with a robust disarmament process, such as the justification for Operation Desert Fox, not only the intelligence, can define (and with Operation Iraqi Freedom should have defined) the WMD threat to establish the justification for anticipatory self-defense.

The takeaway from the 2002-2003 enforcement with Sad[d]am for "future cases" should have been to fix up and strengthen the compliance-based UNSCR 687 model as the gold standard for disarming rogue nations. On the facts, according to the compliance-based operative law, policy, and precedent that actually defined the OIF decision, the case against Saddam was a slam dunk. Saddam's guilt of "material breach" (UNSCR 1441) was decided by UNSC and has been confirmed and corroborated as categorical. In the operative context, the OIF decision was correct.

But the Bush administration's ham-handed attempt to tack on an "independent" 2nd claim in order to set a modern precedent for intelligence-based anticipatory self-defense enabled anti-OIF propagandists to shift the burden of proof in the politics so that the legitimacy of OIF pivoted on proving the predictive precision of inherently inexact intelligence estimates despite that the disarmament process, invasion, and occupation were not designed to seize, guard, and preserve evidence for that kind of proof.

President Clinton, the Yale JD, was savvy enough to strictly hew to the operative compliance basis of the case against Saddam. The members of President Bush's team who convinced the Harvard MBA to tack on the "independent" 2nd claim of intelligence-based anticipatory self-defense — when they should have incorporated the component parts into the well established compliance-based case against Saddam — are responsible [share responsibility] for the political, policy, and real harms that have drastically compounded from that deviant, inapposite, uncalled for, stupid error.

Suggestion:
Regarding the national security priority to prevent rogue nations from committing terrorism with WMD or supplying terrorists with WMD, cite President Clinton's Presidential Decision Directive/NSC-39 (21JUN95) as a background reference.

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Also see Decision Points suggests President Bush has not read key fact findings on Iraq carefully and Rebuke of and advice to Charles Duelfer.

For more exposition on the "independent" 2nd claim of intelligence-based anticipatory self-defense in addition to the John Yoo monograph linked in the e-mail, see The Legality of Using Force Against Iraq by Christopher Greenwood (2002), War, Responsibility, and the Age of Terrorism by John Yoo (2004), Less than Bargained for: The Use of Force and the Declining Relevance of the United Nations by John Yoo and Will Trachman (2005), Preventive War by Gary Becker (2004), and Preventive War by Richard Posner (2004).

Critique of Christopher Hitchens's answer to Jon Stewart

PREFACE: Columbia University and University of Texas law professor Philip Bobbitt thought I'd enjoy journalist Christopher Hitchens's argument for the Iraq intervention on the August 25, 2005 episode of The Daily Show with Jon Stewart. My critique of Hitchens's answer to Stewart is adapted from my response to Professor Bobbitt.

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Christopher Hitchens's answer to Jon Stewart makes for a good teaching example because, one, it's popularly considered a model defense of the Operation Iraqi Freedom (OIF) regime change, yet two, Hitchens's answer was critically flawed. Watch it, then read my critique:

Did I enjoy Hitchens's response? Well, I appreciate that Hitchens put forth the public effort that's needed from like-minded pundits to set the record straight on OIF.

However, I'm critical of the argument he made. If Hitchens were still alive, I'd convey my work to him to shore up his presentation. Hitchens's answer wasn't wrong per se, but his unanchored if scholarly take on the Iraq issue is better suited to an academic discussion in a collegial setting. Whereas the political forum in which Hitchens answered Stewart is more like the adversarial settings in which I've honed my legally based take on the Iraq issue.

The critical flaw in Hitchens's answer is he neglected to establish the contextual frame with the operative thread that's needed to properly evaluate his points and tie them together: namely, that President Bush's decision on Iraq fundamentally upheld the US-led, UN-mandated compliance enforcement of the Gulf War ceasefire terms purpose-designed to resolve Iraq's Gulf War-established manifold threat.

To set the proper frame with the operative context, Hitchens should have opened his answer with 'Saddam breached the Gulf War ceasefire in his final opportunity to comply'. Once the operative context is established, then everything else can be placed in proper order and effectively brought to bear to clarify the Iraq issue.

For example, in the operative context:

Hitchens should have grounded his main argument for the Iraqi regime change by noting that his criterions for loss of sovereignty — i.e., genocide, harboring "gangsters"/terrorists, violation of the Nonproliferation Treaty, and/or aggression — were in fact manifested in the Gulf War ceasefire mandates. UNSCRs 687, 688, and 949 explicitly covered Hitchens's criterions and were featured as such in Public Law 107-243.

If he had established the operative context properly, Hitchens could have proffered the same essential viewpoint but elevated his argument from a personally preferred policy theory referring to general international norms to the actual Iraq-specific enforcement procedure for the "governing standard of Iraqi compliance" (UNSCR 1441) defined by the concrete law, policy, and precedent that President Bush carried forward from Presidents HW Bush and Clinton and faithfully upheld in his Office.

Hitchens should have corrected Stewart's mischaracterization in detail, e.g., contra Stewart, President Bush's decisions with Iraq tracked the US laws and UNSC resolutions that defined the Gulf War ceasefire enforcement.

Hitchens should have explained that the Gulf War ceasefire compliance enforcement assigned Saddam a probationary status and threat evaluation that distinguished Iraq from the other international bad actors that Stewart named. (Note that Stewart's "What about ..." is a typical anti-war rhetorical tactic.) The ceasefire mandates provided for a procedural measurement of Saddam's outstanding threat. Iraqi noncompliance equated to Iraqi threat, and it's confirmed that Saddam's threatening breach of the ceasefire terms was categorical.

Hitchens should have clarified that President HW Bush didn't simply leave Saddam in power in 1991. Rather, the Gulf War was suspended with a comprehensive set of reformative conditions that Iraq was obligated to fulfill in order to make the ceasefire permanent. In fact, by May 1991 at the latest, President HW Bush had an active regime change policy versus the noncompliant Saddam regime. The regime change policy was carried forward and progressed under President Clinton.

Hitchens should have shown that the interval between Desert Storm and Operation Iraqi Freedom was not a flat delay. Rather, it involved a progression that exhausted the lesser compliance enforcement measures against Saddam's intransigence. Operation Desert Fox (ODF) in 1998 was the penultimate military enforcement action in the continuum. The stopgap, last measure before Iraq's "final opportunity to comply" (UNSCR 1441) was the post-ODF ad hoc 'containment', which Saddam and his accomplices had broken by 2000-2001. The ultimate military enforcement action, the OIF regime change that responded to Saddam's failed "final opportunity to comply" (UNSCR 1441) in order to “bring Iraq into compliance with its international obligations” (P.L. 105-235), was the coda of the progression.

Clarifying that OIF was the coda of a progression engages President Clinton's preceding enforcement with Iraq. If Hitchens had made the ceasefire enforcement connection, he could have cited Presidents Clinton and Bush together to correct Stewart's mischaracterization.

As it was, Hitchens should have corrected Stewart by at least clarifying President Bush's compliance-based case against Saddam, which carried forward President Clinton's compliance-based case against Saddam. Bush's case against Saddam was really Clinton's case against Saddam, updated from 9/11, and Bush's enforcement procedure for OIF carried forward Clinton's enforcement procedure for ODF. Clinton's decision for ODF completed the operative set of law, policy, and precedent that set the stage for OIF.

Hitchens should have clarified the OIF regime change was fundamentally a compliance enforcement measure. Public Law 105-338 legislated the regime change solution for the noncompliant-Saddam problem that was already a long active executive policy. The preamble for the Iraq Liberation Act of 1998 was about Saddam's noncompliance with the ceasefire mandates. P.L. 105-338 paired with P.L. 105-235, which mandated the President to bring Iraq into its mandated compliance.

The Gulf War ceasefire mandates included Iraq renouncing terrorism in view of Saddam's terrorist threat in the Gulf War. Citing to paragraph 32 of UNSCR 687 would have provided a stronger frame for Hitchens's description of Saddam's terrorism.

Consider the difference between opinion and correction, then compare the construction of Hitchens's argument to the dialectical structure of the OIF FAQ, and imagine the ways that setting a proper frame with the operative context would have helped Hitchens answer Stewart and clarify the Iraq issue for the public.

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Related: Regarding pundits and David Brooks's "Saving the System".

Rebuttal of Prime Minister Brown's memoir argument against Operation Iraqi Freedom

PREFACE: Gordon Brown served as Prime Minister of the United Kingdom from 2007 to 2010. My rebuttal criticizes Prime Minister Brown's claim of American conspiracy on Saddam's WMD, assertion the Iraq intervention was unjustified, and choice to end British peace operations with Iraq. A comment for liberal advocates regarding PM Brown's argument against OIF follows the rebuttal. Enjoy:

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In his November 5, 2017 The Guardian article, Gordon Brown says Pentagon misled UK over case for Iraq invasion, Michael Savage relates "an explosive new claim from [former UK prime minister] Gordon Brown" that the "US defence department knew that Saddam Hussein did not have weapons of mass destruction but kept Britain in the dark".

The "explosive new claim" that the Pentagon secretly knew Saddam had no WMD and kept that knowledge from the UK is the premise for Prime Minister Brown's new memoir argument that Operation Iraqi Freedom (OIF) was unjustified:

Brown states that had the evidence been shared, history could have been different. ... ["]If I am right that somewhere within the American system the truth about Iraq’s lack of weapons was known, then we were not just misinformed but misled on the critical issue of WMDs.

“Given that Iraq had no usable chemical, biological or nuclear weapons that it could deploy and was not about to attack the coalition, then two tests of a just war were not met: war could not be justified as a last resort and invasion cannot now be seen as a proportionate response.”

However, Brown's premise for his argument, the "US defence department knew that Saddam Hussein did not have weapons of mass destruction" (Savage), is flawed.

First, on its face, the evidence cited by Brown does not support the notion that the Pentagon knew the status of Saddam's WMD. Rather, the The Guardian article describes a Pentagon report that assessed pre-war intelligence estimates as "analysis of imprecise intelligence. These assessments, the report said, relied ‘heavily on analytic assumptions and judgment rather than hard evidence.[']" (Brown).

In other words, as described in the article, the cited Pentagon report made no statement on the status of Saddam's WMD. Rather, it amounted to a 2nd-derivative assessment of pre-war intelligence estimates. Equivalent 2nd-derivative assessments of British pre-war intelligence estimates, such as Dr. Brian Jones's dissent, are discussed in the UK 2004 Review of Intelligence on Weapons of Mass Destruction chaired by Lord Butler. Furthermore, the Butler review shows that British decision-makers relied on British intelligence estimates rather than American intelligence estimates. Brown neglects to explain why an American 2nd-derivative assessment would have swayed UK leaders above the British 2nd-derivative assessments that said practically the same thing.

The Butler review and its American counterpart, the Silberman-Robb Commission, explain that the extreme difficulty of gathering "hard evidence" about Saddam's WMD was familiar to British and American leaders tasked with the duty of enforcing Iraq's Gulf War ceasefire-mandated compliance. The operative role of the intelligence in the UNSCR 687 disarmament process was assisting the UN weapons inspections that tested Iraq's compliance with the UNSCR 687 disarmament mandates. As Iraqi counter-intelligence expertly adapted, intelligence analysts depended on data from the UN weapons inspections, which were also well opposed by Iraqi counter-intelligence. When the UN weapons inspections were cut off in 1998, so was the principal source of data on Saddam's WMD. As such, in the operative context of the decision for OIF, intelligence estimates based on "analysis of imprecise intelligence" were understood to be necessitated by Iraq's effective "denial and deception operations" (Iraq Survey Group), which in and of themselves violated UNSCR 687, not as evidence of Brown's conspiracy.

Second, Brown's premise that "Saddam Hussein did not have weapons of mass destruction" contradicts the operative context of the OIF decision and the fact record.

In the operative context of the OIF decision, Iraq's guilt of proscribed armament was established fact by UNSCOM and IAEA in the UNSCR 687 disarmament process and presumed until Iraq proved it disarmed in accordance with the "governing standard of Iraqi compliance" (UNSCR 1441). The mandated question of Saddam's WMD was never for the US, UK, and UN to answer. Iraq was obligated to answer the question in accordance with UNSCR 687. The intelligence was weighed in the operative context of the established fact of Saddam's WMD with the burden on Iraq to prove the mandated compliance and disarmament.

As such, Brown's premise elides that the determination "Saddam Hussein did not have weapons of mass destruction" was not for the Pentagon to make in the first place. The determination of disarmament could only be made by Iraq proving it had disarmed as mandated. Gauging Iraq's compliance with UNSCR 687 and related resolutions was the necessary measuring stick for Iraq's WMD-related threat due to Saddam's commitment to "concealment and deception activities" (ISG) throughout the Gulf War ceasefire, including the final UNSCR 1441 inspection period. Iraq's proscribed items and activities that could be demonstrated in hand were not the main WMD-related threat because the violations that could be demonstrated could be corrected as mandated. Rather, Iraq's main WMD-related threat was the proscribed items and activities that could not be accounted for due to Saddam's "denial and deception operations" (ISG). Answering the question of Iraq's proscribed items and activities was not guesswork. It was not even intelligence work, where Western intelligence was evidently outmatched by Iraqi counter-intelligence. Gauging Iraq's compliance with the "governing standard of Iraqi compliance" (UNSCR 1441) was the mandated way to answer the question.

For Saddam's "final opportunity to comply" (UNSCR 1441), Hans Blix and UNMOVIC asked Iraq to answer for Saddam's WMD as mandated, and Iraq answered that Saddam did not disarm as mandated, e.g., "With respect to stockpiles of bulk agent stated to have been destroyed, there is evidence to suggest that these was [sic] not destroyed as declared by Iraq." Iraq was obligated to prove "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441) in order to switch off the capacitating threat of regime change, yet in 2003, the UNSCR 1441 UNMOVIC inspections found Iraq made no significant disarmament progress from the UNSCR 1205 UNSCOM inspections that had triggered Operation Desert Fox (ODF) in 1998. UNMOVIC's confirmation of Iraq's "continued violations of its obligations" in Saddam's "final opportunity to comply" (UNSCR 1441) thus triggered OIF. Following the regime change, the Iraq Survey Group (ISG) corroborated Iraq's "material breach" (UNSCR 1441) of the UNSCR 687 mandates.

Brown's assertion "Iraq had no usable chemical, biological or nuclear weapons that it could deploy" elides that Saddam did not account for his WMD stocks with the UNSCR 1441 inspections, and subsequently in his stead, ISG was unable to account for Saddam's WMD stocks as mandated, e.g., "ISG cannot determine the fate of Iraq’s stocks of bulk BW [biological weapon] agents ... There is a very limited chance that continuing investigation may provide evidence to resolve this issue." In fact, in many instances where ISG cited a lack of evidence, it meant the evidence required for a definite determination was missing or lost, not that absence of evidence was evidence of absence.

ISG's non-findings, which are prevalently interpreted in the politics as unequivocal evidence of absence, are in fact predominantly attributed to evidentiary gaps due to rigorous regime operations and information security practice that prevented evidence, "many of these [WMD-related] sites were sanitized by the Regime", and other "concealment and destruction efforts" before and during the ISG investigation. The UNSCR 687 disarmament process placed the burden of proof on Iraq and hence was not like a crime-scene forensic investigation that searched for evidence while guarding carefully against the contamination or loss of physical evidence in a controlled area. Carrying the burden to prove the mandated disarmament upon the established fact of Iraq's proscribed armament, Saddam was in effect allowed by the UN weapons inspections to hide, alter, or destroy evidence of proscribed armament. Iraq's "concealment and deception activities" (ISG) only hindered Iraq from proving it disarmed according to the “governing standard of Iraqi compliance” (UNSCR 1441). Therefore, despite its name, the ISG report should be read as a floor, not a complete survey of Saddam's WMD.

The notion of demonstrating that Saddam's WMD matched pre-war estimates was always unrealistic since, as a practical matter, the UNSCR 687 disarmament process, OIF invasion, and post-war occupation were not designed for that kind of proof. If legitimacy pivoted on ISG proving the pre-war intelligence estimates were predictively precise, rather than the operative context of Iraq proving it complied and disarmed as mandated, then of course the Iraq intervention likely would be de-legitimated given that Saddam's forces had a long, practically free hand to manipulate the evidence before and during the ex post investigation. And in fact, the ISG report is heavily qualified with caveats about significant limitations to its reach and scope, including that much evidence of Iraq's specific armament was missing or lost.

For example, although the chemical weapon (CW) munitions missed by ISG and confiscated under Operation Avarice are often devalued as older stocks, they nonetheless were still dangerous, were proscribed under UNSCR 687 and further corroborated Iraq's "material breach" (UNSCR 1441), and bore out ISG's caveat "ISG cannot discount the possibility that a few large caches of munitions remain to be discovered within Iraq."

Brown's premise that "Saddam Hussein did not have weapons of mass destruction" also contradicts that the ISG findings are rife with violations across the board of the UNSCR 687 mandates. Comparison of the ISG report to the pre-war intelligence and 2nd-derivative assessment described by Brown shows that much of the "analysis of imprecise intelligence" has been substantiated and areas where Saddam's WMD-related activity was underestimated. Despite evidentiary gaps and other practical limitations, ISG was able to confirm Saddam's rearmament intent and Iraq had in fact been undertaking WMD-related activity for years, including a clandestine active program run by the Iraqi intelligence services (IIS) with a "large covert procurement program" and a secret chemical and biological laboratory network that "provided an ideal, compartmented platform from which to continue CW agent R&D or small-scale production efforts" (ISG), chemical and biological "dual-use" capabilities (including an obviously suspect "BW agent simulants" capability) that were readily convertible for larger production, illicit missile and nuclear development, and "fragmentary and circumstantial" evidence of greater WMD-related activity, including indications of BW production.

In short, Brown's argument is premised on evidence, i.e., a 2nd-derivative assessment, that fails on its face to substantiate his conspiracy theory. Further, Brown's notion the Pentagon "knew that Saddam Hussein did not have weapons of mass destruction" contradicts the operative context of the UNSCR 687 disarmament process, the UNSCOM-established fact of Saddam's WMD, the UNMOVIC-established fact that Saddam did not disarm his WMD, other nations' intelligence on Iraq, and the ISG findings of Saddam's WMD intent and capabilities. Brown's assertion "Iraq had no usable chemical, biological or nuclear weapons that it could deploy" also elides that Iraq failed to account for Saddam's WMD with UNMOVIC and ISG's non-findings are heavily qualified.

If for the sake of argument one accepts the unproven notion that Iraq secretly unilaterally eliminated all its "militarily significant WMD stocks" (ISG) outside of the Gulf War ceasefire-mandated disarmament process before the pre-war intelligence estimates were formulated, that still leaves intact the primary threat assessment of noncompliant Saddam's unaccounted for armament and Iraq in breach of the ceasefire. Practically speaking, too, there is thin threat margin between battlefield-ready WMD stockpile and Saddam's confirmed WMD intent and capabilities. Iraq's WMD threat was measured by the UNSCR 687 mandates, which proscribed more items and activities than battlefield-ready WMD stockpile, notwithstanding that Brown's arbitrary standard for Saddam's WMD is considerably more permissive than the "governing standard of Iraqi compliance" (UNSCR 1441).

The thin threat margin shrinks further with the IIS's previously undetected WMD and terrorism capabilities that were found by the Iraq Survey Group and Iraqi Perspectives Project (IPP) investigations. The post-war assessments of Saddam's IIS substantiate President Bush's warning in the 2003 State of the Union, "Before September the 11th, many in the world believed that Saddam Hussein could be contained. But chemical agents, lethal viruses and shadowy terrorist networks are not easily contained." The criteria for "usable chemical, biological or nuclear weapons that it [Iraq] could deploy" (Brown), such as the CW munitions confiscated under Operation Avarice, are different for military and terrorist methods. The IIS's "ideal, compartmentalized platform from which to continue ... small-scale production efforts" (ISG) may not have been scaled for production on the military level, but it was scaled for production on the terrorism level. Counter-terrorism is intrinsically preventive because terrorist threat is not detected and tracked as readily as military threat, yet Brown's judgement "two tests of a just war were not met" ignores Saddam's vastly underestimated IIS-run "regional and global terrorism" (IPP), which included "considerable operational overlap" (IPP) with the al Qaeda network and "the top ten graduates of each Fedayeen Saddam class were specifically chosen for assignment to London, from there to be ready to conduct operations anywhere in Europe" (IPP). Of course, Saddam's "regional and global terrorism" (IPP) and deployment of terrorists to London violated the aggression and terrorism-related terms of the Gulf War ceasefire to add on to the justification for OIF.

Alongside his flawed conception of the WMD aspect of the Iraq issue, Prime Minister Brown also evinces a flawed conception of "just war" and "proportionate response" in the context of the OIF regime change that successfully brought Iraq into its mandated compliance after Saddam declined his "final opportunity to comply" (UNSCR 1441):

“I am convinced that if resolutions of the United Nations are approved unanimously and repeatedly they have to be upheld if we are to have a safe and stable world order,” he writes. “On this basis, Saddam Hussein’s continuing failure to comply with them justified international action against him.

“The question is whether it required war in March 2003. ...

“Given that Iraq had no usable chemical, biological or nuclear weapons that it could deploy and was not about to attack the coalition, then two tests of a just war were not met: war could not be justified as a last resort and invasion cannot now be seen as a proportionate response.”

The basic premise of the manifold ceasefire terms was "the need to be assured of Iraq's peaceful intentions in the light of its unlawful invasion and occupation of Kuwait" (UNSCR 687). Brown elides that the de jure and essential threat was the noncompliant Saddam regime, not the WMD in and of itself. Brown's arbitrary standard for his judgement "two tests of a just war were not met" obfuscates the operative context of the OIF decision wherein UNSCR 1441 "Recogniz[ed] 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". The set condition meant Saddam's threat, including his WMD-related threat, was measured by Iraq's evidential noncompliance with the ceasefire terms purpose-designed to resolve Saddam's Gulf War-established manifold threat, not by Brown's misrepresented 2nd-derivative assessment. The US, UK, and UN were not obligated to predict and demonstrate any of Saddam's WMD to justify enforcement. At the decision point, the WMD-related "threat [of] Iraq's non-compliance" (UNSCR 1441) was confirmed by Hans Blix and UNMOVIC's measurement of "about 100 unresolved disarmament issues".

WMD was not the only "critical issue" (Brown) that weighed on the OIF decision. "Saddam Hussein's continuing failure to comply with them" (Brown) equated to the continuing "threat [of] Iraq's non-compliance with Council resolutions" (UNSCR 1441) related to aggression (UNSCR 949), WMD and conventional armament (UNSCR 687), terrorism (UNSCR 687), and repression (UNSCR 688). Today, with corroboration of Iraq's noncompliance piled high from the UNSCR 1441 inspections and post-war ISG, IPP, IIC, and UNCHR investigations — e.g., "[i]n addition to preserved capability, we have clear evidence of his [Saddam's] intent to resume WMD" (ISG), "the Saddam regime regarded inspiring, sponsoring, directing, and executing acts of terrorism as an element of state power" (IPP), and "[t]he new evidence, particularly that of eyewitnesses, added another dimension to the systematic crimes of the former regime, revealing unparalleled cruelty" (UNCHR) — Iraq's threatening breach of the Gulf War ceasefire can now be seen as categorical.

At the same time, the modern theory of just war is not limited to defensive action. Modern just war theory also encompasses the "use [of] all necessary means" (UNSCR 678) for the international compliance enforcement of the UNSCR 660 series and humanitarian intervention per UNSCRs 688 and 1483 that defined OIF. Brown's judgement "two tests of a just war were not met" is inapposite on its face since his arbitrary standard mismatches the "governing standard of Iraqi compliance" (UNSCR 1441). According to the operative enforcement procedure for the "governing standard of Iraqi compliance" (UNSCR 1441), the OIF decision was triggered by Hans Blix and UNMOVIC's confirmation of Iraq's "continued violations of its obligations" in Saddam's "final opportunity to comply" (UNSCR 1441), which confirmed the UNSC decision "Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687" (UNSCR 1441). Saddam failed his "final" compliance test well short of the mandated "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441). Iraq's UNMOVIC-confirmed UNSC-decided breach of the Gulf War ceasefire was casus belli.

Therefore, in the operative context of the OIF decision, proportionate response to the "threat [of] Iraq's non-compliance with Council resolutions" (UNSCR 1441) was marked by the measures needed to "bring Iraq into compliance with its international obligations" (Public Law 105-235). In that regard, Brown's assertion, according to Savage, that “peaceful options for disarmament” had not been exhausted contradicts that Saddam had exhausted the non-military and lesser military enforcement measures over a decade-plus of intransigent noncompliance with the UNSCR 660 series, conclusively failed his "final opportunity to comply" (UNSCR 1441) with the UNSCR 1441 inspections, and ISG confirmed Saddam "never intended" to comply and disarm as mandated. By 1998, President Clinton and Congress had concluded regime change was the only realistic way to bring Iraq into its mandated compliance. In fact, the UNSCR 1441 "final opportunity to comply" in 2002-2003 marked Saddam's second final chance after Clinton had pronounced "Iraq has abused its final chance" when Saddam triggered ODF in 1998.

Blair officials, unlike Bush officials, were on duty for the 1998 penultimate compliance push with UNSCRs 1154, 1194, and 1205 that ran aground with ODF and the aftermath of Saddam's increased intransigence. As the veteran ceasefire enforcers on Blair's team would (or should) have understood better than the newer Bush team, by the point of ODF in 1998, military threat of regime change was requisite to induce even a deficient degree of Saddam's mandated cooperation because he was already well on his way to breaking the sanctions. After Saddam successfully called the ceasefire enforcers' bluff with ODF and then nullified the ceasefire, including (and especially) UNSCR 687, in Iraqi law, the bar was raised for mustering the credible threat of regime change that was prerequisite for restoring the UN inspections-centered compliance process.

Saddam established from the outset of the UNSCR 660 series that the negotiatory "spiral" model of defusing conflict only encouraged his malfeasance. Drawing out even deficient cooperation from Saddam required leveraging with credible threat according to the "deterrence" model. Yet the ODF bombing campaign used up the penultimate military enforcement measure in 1998 and the non-military threat of sanctions was de facto neutralized by 2000-2001. "As UN sanctions eroded there was a concomitant expansion of activities that could support full WMD reactivation" (ISG) even before UNSCOM failed in 1998 with "military reconstitution efforts starting in 1997" (ISG). The post-ODF ad hoc 'containment' relied chiefly on the constraint of sanctions and thus was collapsed by 2000-2001, if it ever worked at all. Saddam was on the verge of victory and knew it because he had earned it. ISG found "The Regime’s strategy was successful to the point where sitting members of the Security Council were actively violating the resolutions passed by the Security Council." UNSC members that opposed OIF were implicated in the Oil For Food scandal and complicit with Saddam breaking the UNSCR 687 arms embargo.

For British and American leaders confronting the festering "threat [of] Iraq's non-compliance" (UNSCR 1441) in 2002, there were no other expedients left to apply leverage with Saddam except the ultimate measure of unsuspending the Gulf War in response to Iraq's breach of ceasefire. The UNSCR 678 mandate to "use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area" did not obligate the US, UK, and UN to exhaust the lesser enforcement measures over a decade-plus in the face of noncompliant Saddam's escalating intransigence, threat, and harm until the UNSCR 660-series compliance enforcement was on the verge of defeat. But that's what they did. Ultimately, in Iraq's "final opportunity to comply" with "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441), Saddam recycled his "tactics of delay and deception" (Clinton) in concert with his accomplices on the Security Council to undermine the capacitating threat and foreclose reliance on further diplomatic efforts to enforce all relevant UNSC resolutions regarding Iraq.

Given the real alternatives at the decision point, Brown's view that OIF "could not be justified as a last resort and invasion cannot now be seen as a proportionate response" contradicts his simultaneous view that the Gulf War ceasefire "resolutions ... ha[d] to be upheld if we are to have a safe and stable world order". The decision point for Bush and Blair was in effect a binary choice: regime change to bring Iraq into its mandated compliance or else give in to Saddam's intransigent noncompliance. Once the despot responded to Iraq's "final opportunity to comply" (UNSCR 1441) by again calling the ceasefire enforcers' bluff, the effective real alternative to OIF was compromising the "governing standard of Iraqi compliance" (UNSCR 1441) and discrediting the last remaining leverage to let noncompliant and unreconstructed, ambitious and aggressive, practically uncontained and rearming, sectarian terrorist and tyrant Saddam slough off Iraq's international obligations.

The real alternative to OIF at the decision point was not available to President Bush under the operative US law and policy to "ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq" (Public Law 107-243). Accommodation with the "threat [of] Iraq's non-compliance" (UNSCR 1441) was not an option. I assume the same is true in the UK mandate for Prime Minister Blair who had helped President Clinton build the operative enforcement procedure that President Bush faithfully carried forward to enforce Saddam's "final opportunity to comply" (UNSCR 1441).

Finally, Prime Minister Brown should be taken to task for his admission that "the moment he [Brown] took office in 2007, he planned to pull British troops out of Iraq well before the Americans" (Savage). It's striking that Brown concocted his abandonment of the Iraqi people in the same historical moment, i.e., the heart of the counterinsurgency "surge" and Sahwa "awakening", that the coalition's peace operations were the most needed by the Iraqi people and doing the most good versus the vicious illiberal forces attacking post-Saddam Iraq. Brown fingers himself as the British leader responsible for the profoundly inhumane mistake that paved the way for current Middle East crises: the premature withdrawal of the necessary peace operations from Iraq. Incredibly, Brown comes off as self-righteous about his course-setting error:

“At this time I made another decision: not to use our future departure from Iraq as an occasion to draw a contrast with Tony or score points against him either,” he writes.

That being said, it's possible that President Obama was committed regardless of British input to his disastrous radical course deviation of contravening the Strategic Framework Agreement and removing the essential US peace operations from Iraq, and dropping President Bush's Freedom Agenda and reneging Obama's own pledge to the Arab Spring activists. Nonetheless, we can speculate what difference it might have made had Brown strategically positioned the UK where it could have at least tried to stop the US from Obama's deviation.

As it happened, Brown led the way in taking the wrong turn with Iraq. He has the least excuse because Brown, unlike Obama, was on duty for the heart of the counterinsurgency "surge" and Sahwa "awakening", so Brown should have understood what was at stake. Yet Brown still chose to make the profoundly inhumane, course-setting error of prematurely withdrawing UK peace operations from Iraq, which at least encouraged and possibly enabled Obama's subsequent US error with Iraq. Which, along with the defamation of the Iraq intervention, set the path for the feckless Western response to the illiberal actors who hijacked the Arab Spring by avidly exploiting the vacuum created first by Brown and followed by Prime Minister Cameron and President Obama.

Prime Minister Brown should have stayed the course. Instead, his inhumane commitment to abandoning the Iraqi people "well before the Americans" empowered illiberal actors to generate a destructive ripple effect in and outside Iraq. Brown ought to be held to account for his fundamental error of prematurely withdrawing UK peace operations from Iraq to which he has added a fundamental misrepresentation of the Iraq issue to rationalize his mistake.

The OIF decision demonstrably was correct on the law and facts. The actual case against Saddam is validated. Prime Minister Blair and President Bush were right on Iraq; not perfect, which would have been abnormal for leadership in a world-changing contest of war and peace, but they were strategically wise, ethically humane, and competitively resolute. Operation Iraqi Freedom was justified.

By-line: Eric LC is a graduate of Columbia University and Rutgers School of Law, and clarifies and relitigates the Iraq issue at Operation Iraqi Freedom FAQ.

Postscript:

The Guardian's article about Prime Minister Brown's argument against OIF was jarring. On the substance, his argument is readily rebuttable. Which makes it jarring that a UK PM that close to OIF — indeed, the UK PM on duty for the heart of the Surge and Sahwa — would proffer that kind of argument in the 1st place. It shows the problem growing worse. Keeping in mind the OIF stigma is the purposeful strategic heir to the still powerfully influential Vietnam War stigma, it's not going to scab over and heal on its own. The revisionist stigmatization of the Iraq intervention is a progressive cancer that's spreading at the premise level of politics and policy with no immune response fighting it. Brown's argument is bad enough within the Iraq issue, but it also broadly implicates the Pentagon, the US, the US-UK relationship, and the effectual reach of liberal international enforcement.

His premature withdrawal of UK peace operations from Iraq was profoundly inhumane and harmfully course-setting, yet incredibly, Brown appears to be perversely proud of his error. His new memoir position on the Iraq issue ought to be setting off alarm bells for IR liberals everywhere, let alone the US and UK. It ought to function as a call to action for concerted, resolute, sufficient corrective on the Iraq issue in the politics — now.

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Related: Criticism of Prime Minister Blair's response to the Chilcot report and Critical response to John Rentoul's "Chilcot Report: Politicians".

Correcting the Iraq section of Miller Center's "George W. Bush: Foreign Affairs"

PREFACE: Gary Gregg holds the Mitch McConnell Chair in Leadership at the University of Louisville and is director of the McConnell Center. He authored the Miller Center history, "George W. Bush: Foreign Affairs".* Professor Gregg's e-mail in the exchange is omitted except for the relevant excerpt.

* Update: In December 2021, Miller Center revised the "George W. Bush: Foreign Affairs" essay. The original version of the essay, critiqued below, is archived here. Go here for my critique of the December 2021 revised version.

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from: [Eric LC]
to: [Gary Gregg]
date: Fri, Oct 20, 2017 at 10:20 PM
subject: My explanation of Op Iraqi Freedom's law and policy, fact basis

Professor Gregg,

I read https://millercenter.org/president/gwbush/foreign-affairs with particular interest in the Iraq section.

I hope you'll be kind enough to give your feedback on my explanation of Operation Iraqi Freedom's law and policy, fact basis: https://operationiraqifreedomfaq.blogspot.com/. It synthesizes the controlling law, policy, and precedent, and determinative facts that defined President Bush's decision for OIF.

Some highlights:

• A direct confrontation with Saddam actually was consistent with the enforcement position that President Clinton handed off to President Bush. Clinton's pronouncement "Iraq has abused its final chance" with Operation Desert Fox meant the compliance process was past, upon which Clinton policy had positioned the military to respond directly to any indication of Iraqi violation of the ceasefire terms. And there were indications across the board of Iraqi violation of UNSCRs 687 and 688. In other words, Clinton didn't pull the trigger before he left office, but he cocked the trigger for his successor. Bush going back to the UNSC for UNSCR 1441 was a step back from the enforcement position that Clinton had reached with ODF, tantamount to retracing to UNSCR 1205. Speculatively, going back to the UNSC likely made it worse for Saddam. A direct confrontation would have entailed a US-issued, rather than UN-issued "final opportunity to comply" (UNSCR 1441). If Saddam had reversed his post-ODF policy on inspections upon a direct confrontation, then the guiding mandate for inspections more likely would have been the more pliable UNSCR 1284. Whereas the US going back to the UNSC ahead of confronting Saddam resulted in the strict UNSCR 1441. Either way, the Iraq Survey Group (ISG) confirmed what everyone expected after a decade+ of intransigence: Saddam "never intended" to comply as mandated with the terms of ceasefire. However, sans UNSCR 1441, Iraq plausibly could have resorted to more "tactics of delay and deception" (Clinton) if UNSCR 1284 had been the guiding mandate for inspections.
• Preemption policy for the WMD and terrorism combination didn't begin with President Bush. Bush carried it forward from President Clinton's policy. Clinton had been chiefly concerned about Saddam's combined WMD and terrorism threat. That being said, while WMD-and-terrorism preemption was a policy position, the casus belli for OIF was the Saddam regime's "material breach" (UNSCR 1441) of ceasefire.
• The 'containment' was broken by 2000-2001 with "concomitant expansion" (ISG) of Saddam's conventional military and WMD-related proscribed procurement. Therefore, once Saddam failed his "final opportunity to comply" (UNSCR 1441), the real alternative to OIF wasn't 'containment'. The other "choice" was compromising the "governing standard of Iraqi compliance" (UNSCR 1441) to free a Saddam who was in categorical "material breach" (UNSCR 1441) of the ceasefire.
• Saddam's military-level conventional and WMD threats were degraded, although they were reconstituting in violation of UNSCR 687. However, the Iraqi Perspectives Project found that Saddam's terrorist threat, which also violated UNSCR 687, was worse than assessed before OIF, while the ISG findings indicate a ready terrorist-level WMD capability.
• The Iraq Survey Group (ISG) non-findings of WMD, including concerning stockpiles, although portrayed as unequivocal in the politics, are in fact heavily qualified in the ISG report.
• Note that Saddam did not unilaterally destroy his WMD "as requested" (Gregg). UNSCR 687 mandated or "requested" a verified total declaration of Iraq's entire WMD program and elimination of all proscribed items and activities "under international supervision". Recall that unilateral destruction prevented a verified total account which Saddam could exploit to hide proscribed items and activities, such as the IIS program uncovered by ISG. In fact, despite significant evidentiary gaps and other practical factors that limited the ex post investigation, the ISG report is rife with UNSCR 687-proscribed items and activities.

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Excerpt from Professor Gregg's e-mail: "Are there specific factual errors that need to be fixed, beyond the wider interpretive/ contextual picture you are pointing out problems in?"

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from: [Eric LC]
to: [Gary Gregg]
date: Tue, Oct 24, 2017 at 12:32 AM
subject: Re: My explanation of Op Iraqi Freedom's law and policy, fact basis

Professor Gregg,

I look forward to your feedback.

Critical comments on Iraq-related portions of https://millercenter.org/president/gwbush/foreign-affairs:

1. My general criticism is your omission of Clinton's Iraq enforcement is a fundamental oversight. The "crisis between the United States and Iraq" (Clinton) matured under Clinton. President Bush carried forward the case against Saddam and Gulf War ceasefire enforcement procedure from President Clinton.


2. Your phrasing "expanding the war to Iraq" in the Afghanistan section isn't wholly wrong, but it's ambiguous enough to be misleading in the context of the section.

OIF wasn't an expansion of OEF — the Saddam problem preceded the al Qaeda problem. President Bush didn't blame Saddam for 9/11. Iraq's "final opportunity to comply" (UNSCR 1441) with the terms of ceasefire was the coda of the decade-plus UNSCR 660-series compliance enforcement which had come to a head in its own right.

However, while not an expansion, the two interventions were related under the War on Terror rubric insofar OIF's casus belli included Saddam's breach of the UNSCR 687 terrorism mandates with "regional and global terrorism" that included "considerable operational overlap" (Iraqi Perspectives Project) with the al Qaeda network. The "continuing unusual and extraordinary threat" (Clinton) posed by Saddam's WMD, terrorism, and other ceasefire breaches in particular and the threat posed by the WMD-terrorism combination in general had been marked under President Clinton. Their threat value, already pegged as the "highest priority" in US policy under Clinton, was heightened due to 9/11.

I clarify the link between 9/11 and the why of OIF at https://operationiraqifreedomfaq.blogspot.com/2013/03/10-year-anniversary-start-Operation-Iraqi-Freedom-thoughts.html#911.

(Note: If you use Google Chrome version 61 or 62, the # anchor won't jump to the section. It works on other browsers. Or you can scroll down.)


3. "In his State of the Union speech in January 2002, President Bush called out an “Axis of Evil” consisting of North Korea, Iran, and Iraq, and he declared all a threat to American security."

It's worth clarifying that Bush's statement has been oft mischaracterized in the politics. While Bush used the phrase "axis of evil", he warned about north Korea, Iran, and Iraq separately and did not characterize an alliance between the three nations. Substantively, Bush merely restated standing views on their illicit activities. In fact, the "axis" nations were (and in the case of Iran and north Korea are) cooperating in various illicit armament activities to a greater degree than Bush characterized in the 2002 SOTU.

See Iraq Survey Group: Regime Finance and Procurement:
https://www.cia.gov/library/reports/general-reports-1/iraq_wmd_2004/chap2.html
Naval Post-Graduate School: The A. Q. Khan Network: Causes and Implications by Christopher Clary, December 2005:
http://fas.org/irp/eprint/clary.pdf
Congressional Research Service: Iran-North Korea-Syria Ballistic Missile and Nuclear Cooperation, 26FEB16:
https://www.fas.org/sgp/crs/nuke/R43480.pdf


4. "Bush Doctrine, officially traceable to September 2002" is misleading insofar it implies preventive counter-terrorism, right of defense, and liberal international leadership (a.k.a., American leadership of the free world) were novel policy.

Right of defense is as old as nations and counter-terrorism is intrinsically preventive. The "Bush Doctrine" is "traceable" to policy and precedent from the Clinton administration which had engaged the Saddam and al Qaeda problems and undertaken unilateral military action and post-Cold War liberal advocacy. To be fair, Clinton carried forward from his predecessors, too, but the policy evolution represented by the "Bush Doctrine" was mainly iterative update of post-Cold War developments under Clinton.

See The Myth of George W. Bush’s Foreign Policy Revolution by Chin-Kuei Tsui, 02DEC12:
http://www.e-ir.info/2012/12/02/the-myth-of-george-w-bushs-foreign-policy-revolution-reagan-clinton-and-the-continuity-of-the-war-on-terror/. Tsui does a fair job of describing the continuity from Clinton to Bush.


5. "As it turned out, Iraq was a war of choice rather than a war of necessity."

The 'containment' was broken. The alternative was giving up the ceasefire enforcement in the face of noncompliant Saddam, which was not a choice allowed in US policy.


6. "In light of intelligence reports describing an Iraqi plant that could be used to produce weapons of mass destruction (WMDs), the administration considered Saddam Hussein’s regime in Iraq a dangerous threat."

Recall that Saddam's pre-Gulf War WMD program was built with "dual use" items and activities, which informed the UNSCR 687 standard. The Iraq Survey Group, despite significant limitations, was able to confirm intent, procurement, a covert bio and chem lab network, readily convertible bio and chem production capability, nuclear and missile development, and deception.


7. "Bush and neoconservative members of his administration wanted to develop Iraq into a democratic country friendly to U.S. interests in the heart of the Middle East".

"Iraq liberation" was standing US law and policy that had progressed through HW Bush and Clinton's enforcement of the UNSCR 688 human rights mandates. The position was well mature by the time Bush entered office. It was simply part of the Gulf War ceasefire enforcement, not novel policy.


8. "Many members of the Bush administration who had been in office during the Persian Gulf War of the early 1990s considered Iraq unfinished business."

Well yeah — so did members of the Clinton administration during the rest of the 1990s and everyone else in the US and around the world involved in the UNSCR 660-series compliance enforcement. Until either Iraq proved compliance with the UNSCR 660 series or the UN (which meant the US and UK) gave in to noncompliant Saddam, Iraq was "unfinished business".


9. "President Bush had personally decided on the need to go to war, long before congressional or U.N. action."

That's not wholly wrong, but it is essentially misleading. Actually, Bush decided Iraq needed to be brought conclusively into compliance with the terms of ceasefire via Saddam's volitional compliance preferably, or via regime change if Saddam remained noncompliant. A credible threat of regime change — i.e., the "need to go to war" — was requisite for restoring the UN inspections.

Per the standing Iraq policy that Bush inherited from Clinton, the US could have attacked Iraq forthwith. Following Operation Desert Fox, Clinton's 'containment' policy included the contingency for direct military response to any indication of Iraqi violation of the ceasefire terms. And there were clear indications across the board of Iraqi violation. Casus belli was breach of ceasefire, and Iraq's breach of the Gulf War ceasefire was UNSC-established fact. Bush's decision to go back to the UNSC for UNSCR 1441 in effect stepped back from the position Clinton had reached with ODF, tantamount to retracing to UNSCR 1205.

Bush and Blair's approach to Iraq in 2002-2003 iterated Clinton and Blair's approach to Iraq in 1998, when it was established that compelling Saddam to cooperate at all with the UN inspections required the threat of regime change because Saddam was breaking the sanctions. The obstacle that Bush and Blair faced in 2002 was the bar for credible threat of regime change had been raised by Saddam successfully calling Clinton's bluff with ODF. Recall that after ODF until UNSCR 1441, Saddam refused UN inspections even when UNSCR 1284 held out the promise of a more pliable inspections regime.

Setting aside political and practical (military) considerations, there was little material difference between an ultimatum issued from the longstanding UNSCR 678-authorized ceasefire enforcers or from a new redundant UNSCR. Either way, Iraq's "material breach" (UNSCR 1441) was established, compelling Saddam's cooperation required a credible threat of regime change, inserting the UNSCR 687 inspectors into Iraq required UNSC action, and enforcement pivoted on whether Iraq met its burden to prove compliance with the terms of ceasefire.


10. "In an August 2002 speech, Vice President Cheney made the Administration’s case quite clear: “Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt that he is amassing them to use them against our friends, against our allies, and against us.”

I criticize how the pre-war intel was presented at https://operationiraqifreedomfaq.blogspot.com/2013/03/10-year-anniversary-start-Operation-Iraqi-Freedom-thoughts.html#intelnotevidence.

That said, the view of possession was grounded in Iraq's "continued violations of its obligations" (UNSCR 1441), which imputed continued intent and possession, and was bolstered by the growing indicators of WMD-related activity, especially procurement.

ISG confirms at least intent and capability. Per UNSCR 687, there was no difference of enforceability between capability and stocks. There's a thin threat margin between them, and the margin shrinks with the IIS program.


11. "They believed that Iraq did, in fact, have WMDs, but that it did not necessarily have the capabilities to use them that Bush and Cheney believed."

This is a confusing statement. How would Saddam have WMDs but not the capability to use them? If you mean Saddam's WMD-terrorism combination, it does appear that pre-OIF analysis significantly underestimated Saddam's terrorism, though what was known was enough to breach UNSCR 687.


12. "Bush continued to assert that the United States could not trust Saddam Hussein with WMDs and that they could easily be transferred to terrorists."

The 1st part was a tenet of the Gulf War ceasefire. The 2nd part, Saddam's WMD-terrorism combined threat, was the standing US position from Clinton. Both parts were US positions as long as Saddam remained in breach of the UNSCR 687 WMD and terrorism mandates.


13. "A passionate debate ensued that ended with Congress passing a resolution authorizing the President to go to war with Iraq if he found it necessary."

"If he found it necessary" is ambiguous, which obscures that Public Law 107-243 wasn't ambiguous. It was particularly focused on enforcing Iraq's ceasefire-mandated compliance. It essentially reiterated and updated the standing US law and policy on Iraq.


14. "It later was discovered that the regime had actually disposed of its WMD stockpile as requested, but had hid its actions from the world."

If the Saddam regime hid its actions from the world, then ipso facto, it did not dispose of its WMD stockpile as mandated or "requested".

In fact, after Iraq did not account for its WMD stocks with UNMOVIC, ISG also did not account for WMD stocks as mandated in Saddam's stead. ISG gave the best assessment it could, but it's heavily qualified nonetheless. The ISG findings comprise a floor, not a complete account. And of course, the UNSCR 687 WMD standard covered more than stocks.


15. "Critics charged that the Bush administration did not have an adequate plan for Iraq after the initial war was won and Saddam Hussein was ousted from power."

I offer exposition about the initial post-war "humanitarian reconstruction" plan and early difficulties at https://operationiraqifreedomfaq.blogspot.com/2013/03/10-year-anniversary-start-Operation-Iraqi-Freedom-thoughts.html#postwar.

Adequacy wasn't the basic problem. The basic problem was the humanitarian policy-oriented keystone premise that informed the "light footprint" calibration for the initial military role in the post-war peace operations. The same premise informed the UN's initial post-war approach to Iraq which resulted in the death of UN envoy Sergio Vieira.

The 2nd problem was the pre-war underestimation of Saddam's domestic rule by "widespread terror" (UNCHR) and world-leading "regional and global terrorism" (IPP), which converted to the terrorist insurgency that exploited the basic problem.

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from: [Eric LC]
to: [Gary Gregg]
date: Wed, Oct 25, 2017 at 11:02 AM
subject: Re: My explanation of Op Iraqi Freedom's law and policy, fact basis

Professor Gregg,

An additional critical comment on Iraq-related portions of https://millercenter.org/president/gwbush/foreign-affairs:

It's a general criticism that's closely related to 1, so it's labeled 1a rather than 16.

1a. A fundamental oversight in your overview is the omission that Saddam's noncompliance with the Gulf War ceasefire terms established by UNSCRs 687 and 688 constituted ipso facto threat because the ceasefire terms were purpose-designed according to Saddam's established manifold threat. Therefore, measurement of Iraq's "continued violations of its obligations" (UNSCR 1441) functioned as measurement of Saddam's outstanding threat. And Saddam's "material breach" (UNSCR 1441) of the ceasefire regarding WMD and other areas was categorical.

In the operative enforcement procedure, Saddam's noncompliance was de jure threat, i.e., "Recognizing the threat Iraq’s non-compliance with Council resolutions ... poses to international peace and security" (UNSCR 1441), so that "it is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced" (P.L. 107-243).

In the operative context, Iraq was on probation. Saddam's guilt with "the threat [of] Iraq’s non-compliance" (UNSCR 1441) was established and presumed until it was cured by Iraq proving it had rehabilitated with the mandated compliance. The post-Gulf War threat assessments and compliance enforcement decisions regarding Iraq were made in the operative context.

Whereas in the politics reflected in your overview, the operative context of Saddam's established and presumed guilt, which included UNSCR 687-proscribed intent and possession, has been replaced with an inapposite presumption of innocence, and the operative burden on Iraq to prove the mandated compliance has been replaced with an inapposite burden on the US to prove the predictive precision of pre-war estimates. The actual "governing standard of Iraqi compliance" (UNSCR 1441) regarding WMD that was enforced per US law and policy has been largely replaced in the politics by an inapposite narrow focus on whether the US found battlefield-ready WMD stockpiles.

It's also been obscured that in the operative context, the role of the intelligence regarding Iraq's WMD was ancillary: assist the UN inspections assess Iraq's compliance with the UNSCR 687 disarmament mandates. The intelligence was weighed upon the UNSCOM-established fact of Iraq's WMD and the overall outstanding threat of Saddam's noncompliance, which remained uncured due to Iraq's "continued violations of its obligations" (UNSCR 1441). As IIS counter-intelligence adapted expertly to thwart Western intelligence-gathering efforts, pre-war intelligence analysis practically relied on the UNSCR 687 findings, e.g., "With respect to stockpiles of bulk agent stated to have been destroyed, there is evidence to suggest that these was [sic] not destroyed as declared by Iraq" (UNMOVIC, 06MAR03).

Applying the operative context of the decade-plus UNSCR 660-series compliance enforcement, particularly of the purpose-designed ceasefire terms, is necessary to filter all the data and discourse for a correct apposite understanding of the threat assessments and compliance enforcement decisions regarding Iraq. Trying to explain the why of OIF removed from its operative context is like trying to explain the why of World War One removed from the context of European treaties or World War Two removed from the context of autarky.

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from: [Eric LC]
to: [Gary Gregg]
date: Thu, Nov 2, 2017 at 2:54 PM
subject: Re: My explanation of Op Iraqi Freedom's law and policy, fact basis

Professor Gregg,

Pasted below is a longer version of my critical comment on "President Bush had personally decided on the need to go to war, long before congressional or U.N. action" from https://millercenter.org/president/gwbush/foreign-affairs. If the links in the text don't work in the e-mail, the text and embedded links are copied from https://operationiraqifreedomfaq.blogspot.com/2013/03/10-year-anniversary-start-Operation-Iraqi-Freedom-thoughts.html#ultimatumoptions:

[Read it here.]

Of course, I continue looking forward to your feedback on https://operationiraqifreedomfaq.blogspot.com/.

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

from: [Eric LC]
to: [Gary Gregg]
date: Sun, Dec 10, 2017 at 11:44 AM
subject: Detailed correction of "It later was discovered that the regime had actually disposed of its WMD stockpile as requested"

Professor Gregg,

Gordon Brown's calumnious accusation in his memoir that the US tricked the UK into war with Iraq by lying about Saddam's WMD (see my rebuttal) affirms the need to correct ASAP the flaws in your Miller Center account of President Bush's decision for Operation Iraqi Freedom. The Miller Center's on-line resource is the kind of readily accessible, assumed credible source that high school students typically cite with the approval of their social science teachers, college underclassmen often cite with the approval of their instructors, and the public in general relies upon to be accurate.

I'll focus here on a readily correctable flaw that, if left uncorrected, will continue to propagate the prevalent fundamental misconceptions that underlie PM Brown's accusation: "It later was discovered that the regime had actually disposed of its WMD stockpile as requested, but had hid its actions from the world."

A: Iraq's unverified unsupervised hidden unilateral destruction of UNSCR 687-proscribed items was not "as requested", but in fact a critical violation of the UNSCR 687-mandated disarmament procedure and a longstanding tactic to subvert the mandated accountability of proscribed items and activities.

B: The notion that Iraq "actually disposed of its WMD stockpile" is unproven. Iraq did not account for its WMD as mandated with UNSCOM and UNMOVIC, and subsequently, the Iraq Survey Group was unable to account for Saddam's WMD as mandated. The ISG assessment that Iraq secretly unilaterally "disposed of its WMD stockpile" in violation of UNCR 687 is a heavily qualified best guess, not an "actually" proven disposition.

A: See paragraphs 8 to 13 in UNSCR 687 (1991) for the basic mandated — "as requested" — WMD disarmament procedure.

Following Operation Desert Fox, on January 25, 1999, UNSCOM executive chairman Richard Butler clarified the UNSCR 687 WMD disarmament procedure and summarized Iraq's strategy to undermine it:

3. For the conduct of this work [mandated by "Paragraphs 8 and 9, in section C of resolution 687 (1991)"], the resolutions of the Council established a three-step system: full disclosure by Iraq; verification of those disclosures by the Commission; destruction, removal, or rendering harmless, under international supervision, of all proscribed weapons, materials and facilities.
4. From the inception of the relevant work, in 1991, Iraq's compliance has been limited. Iraq acknowledges that, in that year, it decided to limit its disclosures for the purpose of retaining substantial prohibited weapons and capabilities.
5. Actions by Iraq in three main respects have had a significant negative impact upon the Commission's disarmament work:
Iraq's disclosure statements have never been complete;
contrary to the requirement that destruction be conducted under international supervision, Iraq undertook extensive, unilateral and secret destruction of large quantities of proscribed weapons and items;
it also pursued a practice of concealment of proscribed items, including weapons, and a cover up of its activities in contravention of Council resolutions.

On January 27, 2003, UNMOVIC executive chairman Hans Blix clarified the mandate for "substantive cooperation" to the UN Security Council:

The substantive cooperation required relates above all to the obligation of Iraq to declare all programmes of weapons of mass destruction and either to present items and activities for elimination or else to provide evidence supporting the conclusion that nothing proscribed remains.
Paragraph 9 of resolution 1441 (2002) states that this cooperation shall be "active". It is not enough to open doors. Inspection is not a game of "catch as catch can".

UNSCR 687 integrated the destruction mandate with disclosure, verification, and supervision mandates. Unverified unsupervised hidden unilateral destruction of proscribed items violated UNSCR 687, subverted the mandated accountability, and enabled Iraq to hide proscribed items and activities, which Iraq did throughout the Gulf War ceasefire period. In fact, after Saddam chose to breach the ceasefire in his "final opportunity to comply" (UNSCR 1441), ISG was able to confirm Iraq hid many proscribed items and activities that should have been declared in accordance with UNSCRs 687 and 1441.

It's important to be a stickler for clarifying the disclosure, verification, and supervision elements of the UNSCR 687 "three-step system" (Butler) because anti-OIF revisionists tout Iraq's unverified unsupervised hidden unilateral destruction of proscribed items as proof of false accusation by President Bush and exoneration of Saddam, when in fact, the opposite is true: unverified unsupervised hidden unilateral destruction was a critical ceasefire breach and a longstanding Iraqi tactic to hide proscribed items and activities.

B. The Iraq Survey Group's non-findings, which are prevalently interpreted in the politics as unequivocal evidence of absence, are in fact heavily qualified in the ISG report's Transmittal Message, Scope Note, and various sections with cautionary notes that the Saddam regime was expert at hiding proscribed items and activities, much evidence was lost before and during the ISG investigation, key Saddam regime officials were not forthcoming, statements conflicted, there were clear signs that suspect areas were "sanitized", and other practical factors, such as the terrorist insurgency, limited the ex post investigation. In other words, the ISG report is properly read as a floor, not a complete account of Saddam's WMD.

I address the issue in the OIF FAQ answer to "Did Bush lie his way to war with Iraq"; note especially parts 5 to 7 of the answer. This excerpt addresses the popular misconception that Iraq "actually disposed of its WMD stockpile", which is actually unproven:

Six, OIF opponents who accuse Bush of lying his way to war with Iraq cite the ISG finding, "While it appears that Iraq, by the mid-1990s, was essentially free of militarily significant WMD stocks, Saddam’s perceived requirement to bluff about WMD capabilities made it too dangerous to clearly reveal this to the international community, especially Iran."

However, although OIF opponents represent the ISG finding as unequivocal, it is in fact heavily qualified in the Duelfer report:

With the degradation of the Iraqi infrastructure and dispersal of personnel, it is increasingly unlikely that these questions will be resolved. Of those that remain, the following are of particular concern, as they relate to the possibility of a retained BW capability or the ability to initiate a new one.

• ISG cannot determine the fate of Iraq’s stocks of bulk BW agents remaining after Desert Storm and subsequent unilateral destruction. There is a very limited chance that continuing investigation may provide evidence to resolve this issue.
• The fate of the missing bulk agent storage tanks.
• The fate of a portion of Iraq’s BW agent seed-stocks.
• The nature, purpose and who was involved in the secret biological work in the small IIS laboratories discovered by ISG.

...
ISG’s investigation of Iraq’s ammunition supply points—ammunition depots, field ammunition supply points (FASPs), tactical FASPs, and other dispersed weapons caches—has not uncovered any CW munitions. ISG investigation, however, was hampered by several factors beyond our control. The scale and complexity of Iraqi munitions handling, storage, and weapons markings, and extensive looting and destruction at military facilities during OIF significantly limited the number of munitions that ISG was able to thoroughly inspect.

• ISG technical experts fully evaluated less than one quarter of one percent of the over 10,000 weapons caches throughout Iraq, and visited fewer than ten ammunition depots identified prior to OIF as suspect CW sites.
• The enormous number of munitions dispersed throughout the country may include some older, CW-filled munitions, and ISG cannot discount the possibility that a few large caches of munitions remain to be discovered within Iraq.

[The Iraq Survey Group can offer a guess, but with its practical limitations, ISG can't be sure about the fate of all Saddam's secret stores and the extent Iraq's WMD program was retained and reconstituted. In many instances where ISG cited a lack of evidence, it meant the evidence required for a definite determination was missing or lost, not that absence of evidence was evidence of absence. With the burden on Iraq to prove the mandated disarmament and no mandate for the ceasefire enforcers to demonstrate Iraq's proscribed armament, the Iraq Survey Group's post hoc investigation was handicapped by that the UN inspections, OIF invasion, and post-war occupation simply were not designed to scour for, guard, and preserve evidence like a crime-scene forensic investigation. Concurrently, the systematic Iraqi "concealment and deception activities" (ISG), much unfettered, rid evidence of proscribed armament, e.g., "many of these [WMD-related] sites were either sanitized by the [Saddam] Regime or looted prior to OIF", "M23 [Directorate of Military Industries] officers also were involved in NMD [National Monitoring Directorate] document concealment and destruction efforts", and "extensive looting and destruction at military facilities during OIF" (ISG). The resulting evidentiary gaps prevented a complete account of Saddam's WMD by ISG.

OIF opponents also overlook President Clinton's compliance-based Iraq enforcement escalated after the mid-1990s, peaking with Operation Desert Fox in December 1998, and the presumption of guilt for Iraq carried over to the post-ODF 'containment'. To fulfill its disarmament obligations, Iraq was required to prove it had disarmed with the particular steps that Saddam had agreed to abide by at the outset of the Gulf War ceasefire. The standard of compliance was set by UNSCR 687, which mandated Iraq to declare and yield all of its proscribed items and activities to the UN inspectors for "destruction, removal, or rendering harmless, under international supervision" so that all of it would be accounted for sufficiently to verify Saddam had disarmed. As Iraq subverted the UNSCR 687 disarmament process, UNSCR 707 further mandated Iraq to, inter alia, "cease immediately any attempt to conceal, or any movement or destruction of any material or equipment relating to its nuclear, chemical or biological weapons or ballistic missile programmes, or material or equipment relating to its other nuclear activities without notification to and prior consent of the Special Commission". The disclosure and supervisory mandates were key because any undisclosed or unsupervised method, including the self-reported ridding touted by OIF opponents, prevented a verified total account and thus could be exploited by Saddam to retain and hide proscribed armament, such as the IIS program found by ISG. Therefore, any less than the mandated compliance kept Iraq at its default of presumed guilt.]
{...and so on...}

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Add: Entreaty to Miller Center.