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Sunday, December 10, 2017

Criticisms and suggestions for International Law and the War in Iraq (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."



from: [me]
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 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 also chose to deviate from his predecessor by tacking on an "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.



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).

Friday, October 20, 2017

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

PREFACE: Dr. Gary L. Gregg, II, 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.



from: [me]
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.

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

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?"

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

from: [me]
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.

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

from: [me]
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 over-all 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.

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

from: [me]
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: [me]
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.
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.

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. 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...]



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;
Correcting the Iraq section of Miller Center's "George W. Bush: Foreign Affairs" (Gary Gregg);
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".

Thursday, March 9, 2017

Decision Points suggests President Bush has not read key fact findings on Iraq carefully

I finally read the Iraq-related sections of President Bush's memoir, Decision Points (2010). That's not an oversight. While Bush's post-presidency reflections are interesting and worth reviewing for their corroborative and background value, they're not essential for a fact pattern-type analysis of the Iraq issue which refers to primary source material from his presidency.

Most of what President Bush wrote about Iraq in Decision Points aligned as expected with my research.

However, I was surprised by several statements that suggest President Bush has not read key fact findings on Iraq's "material breach" (UNSCR 1441) - namely, the UNMOVIC, Iraq Survey Group (ISG), and Iraqi Perspectives Project (IPP) reports - carefully. I guess he's read summaries of the WMD-related fact findings rather than the reports directly. Based on Bush's characterization of Saddam's terrorism, I believe he hasn't read the IPP report at all.

I block-quote President Bush's suspect statements and respond to them. I may have overlooked suspect statements on the Iraq issue, but these should provide a representative sample.

Bush:
Later, many of the assertions in Colin's speech would prove inaccurate.
President Bush is incorrect. In fact, nearly all the main points of Secretary of State Powell's 05FEB03 case presentation to the UN Security Council are substantiated.

Many of Powell's points on Iraq's WMD weren't "assertions" (Bush) at all but rather reiteration of the operative enforcement procedure and the fact record established by UNSCOM/UNMOVIC and IAEA in the decade-plus course of the UNSCR 687 disarmament process.

When I say "substantiated", I don't necessarily mean the intelligence-estimated details Powell presented were proven to be predictively precise, but rather that the substantive element in Powell's point was validated.

For example, the Iraq Survey Group did not find “mobile production facilities used to make biological agents” (Powell). However, ISG confirmed "secret biological work in the small IIS [Iraqi intelligence service] laboratories discovered by ISG" and “The UN deemed Iraq’s accounting of its production and use of BW [biological weapon] agent simulants—specifically Bacillus subtilis, Bacillus lichenformis, Bacillus megaterium and Bacillus thuringiensis to be inadequate … the equipment used for their manufacture can also be quickly converted to make BW agent.”

Moreover, ISG did not conclusively determine the extent of Saddam's BW program. Rather, ISG was unable to account for the fate of much of Iraq’s BW agents, stocks, and equipment due to Iraq’s “denial and deception operations” and “concealment and destruction efforts” in breach of UNSCRs 687 and 1441. ISG also noted "fragmentary and circumstantial" evidence of greater WMD-related activity, including BW production.

The only part of Powell’s speech that falls down in hindsight, knowing what we know now, is the extent to which the Saddam regime sought fissile material for the ISG-confirmed Iraqi Atomic Energy Commission (IAEC) modernization program.

Bush:
Kay conducted a thorough search of Iraq and found irrefutable evidence that Saddam had lied to the world and violated Resolution 1441.
The second part of Bush's statement is correct. By procedure, Iraq's violation of UNSCRs 687 and 1441 established casus belli.

However, the first part of the statement was the first thing in Decision Points that made me suspect President Bush has not read the ISG report firsthand.

In fact, the Iraq Survey Group was not able to conduct a "thorough search of Iraq" (Bush). ISG was able to corroborate UNMOVIC's confirmation of Iraq's WMD-related "material breach" (UNSCR 1441) of the Gulf War ceasefire. But as a "thorough" account of Saddam's WMD, the ISG report falls short. The Iraq Survey Group's findings are heavily qualified with caveats about significant limitations to the reach and scope of the post hoc investigation, including that the Saddam regime was expert at hiding proscribed items and activities, much evidence was lost prior to, during, and after the war, key regime officials were not forthcoming, statements conflicted, suspect areas were found "sanitized", and other practical factors, such as the terrorist insurgency, impaired the ISG investigation. As such, ISG's findings comprised a floor, not a "thorough" account of Saddam's WMD.

Even if ISG had been able to conduct a thorough post-war search of Iraq, it still would not have been a reliable account of Saddam's WMD because the pre-war UNSCR 687 disarmament process 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 of proof, Saddam was in effect allowed by the UN weapons inspections to hide, alter, or destroy evidence of proscribed armament - which ISG confirmed happened - since Iraq's known denial and deception only hindered Iraq from meeting its burden to prove it disarmed according to the “governing standard of Iraqi compliance” (UNSCR 1441). For that matter, the OIF invasion and post-war occupation also were not designed to scour for, guard, and preserve evidence.

Bush:
But there was one thing Kay did not find: the WMD stockpiles everyone expected.
...
I had a sickening feeling every time I thought about it.
That expectation, however widespread, was incongruous with the operative enforcement procedure and practical circumstances. Again, the UNSCR 687 disarmament procedure was designed upon Iraq's burden of proof to provide a total verified account of its proscribed armament with no obligation on the US and UN to demonstrate it. Therefore, the UN weapons inspections that preceded the ISG investigation were not designed to guard carefully against the contamination or loss of physical evidence. Neither were the OIF invasion and post-war occupation designed to scour for, guard, and preserve evidence.

Case in point. Although the ISG account of Iraq's WMD stocks is usually represented as unequivocal, it is in fact heavily qualified in the ISG 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 [chemical weapon] 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.
I appreciate that Bush "had a sickening feeling" over the Iraq Survey Group not finding battlefield-ready WMD stockpiles. And I could understand if he made a strategic choice to deemphasize the shortcomings of the ISG investigation while President. But not acknowledging the qualified nature of the ISG account in his memoir, despite the potential political impact, strikes me as an oversight rather than a purposeful choice.

Bush:
While the world was undoubtedly safer with Saddam gone, the reality was that I had sent American troops into combat based in large part on intelligence that proved false.
I agree with the first part of Bush's statement. On the second part, yes and no.

I address this 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.

President Bush is correct that the pre-war intelligence estimates were predictively imprecise. The intelligence community is fairly criticized in that regard.

At the same time, Bush is not correct to say the "intelligence ... proved false". ISG's heavily qualified non-findings do not make for a proven disposition and the pre-war intelligence correctly indicated Saddam was illicitly reconstituting Iraq's conventional armament and WMD capabilities in violation of UNSCR 687. Much of the underlying data of Iraq's "material breach" (UNSCR 1441) was sound: the fact record established by UNSCOM and IAEA, the ISG-confirmed data of Iraq's illicit procurement and activities, and the UNSCR 1441 inspections.

Bush:
That was a massive blow to our credibility - my credibility - that would shake the confidence of the American people. No one was more shocked or angry than I was when we didn't find the weapons.
The President should not have been shocked. The notion of demonstrating that Saddam's WMD matched the pre-war intelligence estimates was always unrealistic since the UNSCR 687 disarmament process, OIF invasion, and post-war occupation were not designed for that kind of proof. If the Iraq intervention's legitimacy pivoted on proving the pre-war estimates were predictively precise, then of course it likely would be de-legitimated given that Saddam had a long, practically free hand to conceal, alter, and destroy evidence before and during the ISG investigation.

Nonetheless, the UNMOVIC and ISG findings are rife with UNSCR 687 violations. With the burden of proof on Iraq to cure the "continued violations of its obligations" (UNSCR 1441), the pre-war intelligence estimates should not have been positioned politically to overshadow Saddam's evidential categorical breach of the "governing standard of Iraqi compliance" - including the UNSCR 687 WMD mandates - in Iraq's "final opportunity to comply" (UNSCR 1441).

Bush blames the "intelligence failure on Iraq's WMD" for the political controversy, but President Bush should blame himself for enabling the political controversy by deviating from the standing precedent of President Clinton's presentation of the case against Saddam. In accordance with the operative enforcement procedure, Clinton cited to Iraq's noncompliance as "clear evidence of a weapons of mass destruction program". Clinton didn't cite to the intelligence at all when justifying his Gulf War ceasefire enforcement. Yet inapposite of the compliance-based enforcement that Bush faithfully carried forward from Clinton, Bush officials improperly characterized speculative estimates as "evidence" of Saddam's secret inventory. The intelligence, if cited at all, should have been properly characterized as indicators of Iraq's "material breach" (UNSCR 1441). In some cases, such as records of Iraq's illicit procurement, the intelligence did qualify as evidence in hand of the Saddam regime violating UNSCR 687.

In Decision Points, President Bush compounds the "massive blow to our credibility" enabled by his presentation error by fixating on "Kay did not find: the WMD stockpiles everyone expected" at variance with the actual case against Saddam, overlooking the qualified nature of the ISG account, and barely crediting the raft of UNSCR 687 violations reported by UNMOVIC and ISG that confirmed Iraq's "material breach" (UNSCR 1441) of the Gulf War ceasefire.

Bush:
If Saddam didn't have WMD, why wouldn't he just prove it to the inspectors?
...
Saddam still had the infrastructure and know-how to make WMD.
Bush answers his question by referring to Saddam's policy of bluffing Iran and Saddam wrongly evaluating the US-led threat of regime change. Which is correct, but incomplete.

A more complete answer is Saddam wouldn't prove he didn't have WMD to the UNSCR 1441 inspections because he couldn't - Iraq was in fact heavily violating the UNSCR 687 WMD mandates.

The notion, "Saddam didn't have WMD", assumes a narrow definition of WMD proscription inapposite to the US-enforced "governing standard of Iraqi compliance" (UNSCR 1441) that Saddam violated to trigger Operations Desert Fox and Iraqi Freedom. Yet on September 12, 2002, President Bush reiterated the (paraphrased) UNSCR 687 standard to the UN General Assembly, "If the Iraqi regime wishes peace, it will immediately and unconditionally forswear, disclose, and remove or destroy all weapons of mass destruction, long-range missiles, and all related material."

UNMOVIC verified Iraq's "continued violations of its obligations" (UNSCR 1441) to establish casus belli, and then the Iraq Survey Group, notwithstanding its practical limitations, was able to confirm Saddam was guilty of many UNSCR 687 violations, including "Saddam still had the infrastructure and know-how to make WMD" (Bush).

Bush's phrasing, "still had", connotes a holdover quality. But ISG found more than retained Gulf War-vintage infrastructure and know-how, although that would have been sufficient by itself to violate UNSCR 687 and corroborate Iraq's "material breach" (UNSCR 1441). The chiefly sanctions-based 'containment' was de facto neutralized by 2000-2001, and "[a]s 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). ISG confirmed Saddam was applying the funds from the Oil For Food scandal to illicitly reconstitute a broad array of conventional arms, military infrastructure, and nuclear, biological, chemical, and missile research, development, and production capabilities with a "large covert procurement program" under cover of "denial and deception operations".

Saddam was bluffing, which by itself violated UNSCRs 687 and 1441 for casus belli. But Saddam wasn't only bluffing, and it's not clear how much he was bluffing. Iraq was hiding many UNSCR 687-proscribed items and activities, including IIS and production capabilities. When viewed with the operative lens of the "governing standard of Iraqi compliance" (UNSCR 1441), the facts show Saddam was rearming. Due to the ISG investigation's practical limitations and evidentiary gaps that Bush doesn't acknowledge in Decision Points, the Iraq Survey Group can offer a guess, but ISG can't be sure about the fate of all Saddam's secret stores and the extent Iraq's WMD program was reconstituted following Operation Desert Fox. For example, the CW munitions missed by ISG and confiscated under Operation Avarice bore out ISG's caveat "ISG cannot discount the possibility that a few large caches of munitions remain to be discovered within Iraq."

Regarding the casus belli for OIF, the Iraq Survey Group is sure that "the Iraqis never intended to meet the spirit of the UNSC’s resolutions" and "ISG judges that Iraq failed to comply with UNSCRs".

Bush:
Saddam could have turned to Sunni terrorist groups like al Qaeda - a marriage of convenience, not ideology - as surrogates in an attempt to match Iran's use of Shia terrorist groups like Hezbollah.
President Bush appears not to have read the IPP report. His statements on Saddam's terrorism in Decision Points seem to be grounded in the pre-war assessment of Saddam's terrorism, which to be fair, was already sufficient to satisfy the counter-terrorism element of OIF's casus belli.

However, the post-war analyses by the Iraqi Perspectives Project and UN Commission on Human Rights (UNCHR) show pre-war assessments underestimated Saddam's "regional and global terrorism" (IPP) in breach of UNSCR 687 and "widespread terror" (UNCHR) ruling Iraq in breach of UNSCR 688.

Bush is correct to say that "Saddam could have turned to Sunni terrorist groups like al Qaeda" because there is ample evidence that Saddam was already deeply engaged with Sunni terrorist groups including al Qaeda. Jim Lacey, who authored the IPP report, concluded based on the IPP and ISG findings, "Given the evidence, it appears that we removed Saddam’s regime not a moment too soon."



President Bush's suspect statements in Decision Points look like the popular yet misleading summaries that conceal that the UNMOVIC and ISG reports are rife with disarmament violations, and the often-cited ISG conclusion, "it appears that Iraq, by the mid-1990s, was essentially free of militarily significant WMD stocks", is more equivocal than it's usually portrayed.

It's possible that Bush was simply trying to be unsparing in his memoir. But his harsh self-recrimination can only misinform the public by obscuring that the burden of proof was on Saddam, which Bush does reiterate in Decision Points, the UNSCR 1441 inspections verified Iraq did not disarm as mandated, and while the Iraq Survey Group found many UNSCR 687 and 1441 violations, the UNSCR 660 series' enforcers were not obligated to find anything to justify enforcement: by procedure, casus belli was established with UNMOVIC's confirmation of Iraq's "material breach" (UNSCR 1441) of the Gulf War ceasefire.

The political fallout enabled by his presentation error with the pre-war intelligence estimates doesn't negate that President Bush's decision on Iraq was substantively correct on the facts, procedurally correct on law and precedent, and justified on the policy. As Saddam was in violation of the spectrum of essential international norms that defined the Gulf War ceasefire, President Bush's decision on Iraq was also essentially correct for the sake of liberal international order.



PREFACE: On October 19, 2017, President Bush announced the George W. Bush Institute Human Freedom Initiative's The Spirit of Liberty: At Home, In the World, a new project advocating "freedom, free markets, and security". I e-mailed the following recommendation to Ken Hersh, the George W. Bush Presidential Center President and Chief Executive Officer, Holly Kuzmich, the George W. Bush Institute Executive Director and Senior Vice President, and the Human Freedom Initiative's general contact. Reference.

from: [me]
to: [Ken Hersh], [Holly Kuzmich], humanfreedom@bushcenter.org
date: Thu, Oct 19, 2017 at 5:45 PM
subject: You must clarify the Iraq issue to effectually advocate the spirit of liberty at home, in the world

Mr. Hersh, Ms. Kuzmich, and the George W. Bush Institute Human Freedom Initiative,

I support your campaign to champion the revival of American leadership of the free world that President Bush heralded today in New York City.

However, your political effort will be constantly undermined by the prevalent conjecture, distorted context, and misinformation that have obfuscated the Iraq issue and stigmatized Operation Iraqi Freedom (OIF). The prevailing OIF stigma, in addition to shading President Bush and his namesake organization, is purposefully applied as keystone premise in the politics to degrade the essential international norms and neutralize the vital enforcement principles that embodied with the paradigmatic US-led compliance enforcement of the UNSCR 660 series with Iraq. The "Spirit of Liberty" campaign advocates the same fundamental set of norms and principles that are purposefully degraded and neutralized by the OIF stigma.

For your political effort to be effectual, your team must publicly clarify - relitigate - the pivotal Iraq issue in order to re-lay the foundation of the politics at the premise level. The People at home and in the world must be made to understand that President Bush's decision for OIF was correct on the law, justified on the policy, and right on essential principle. That the US and our allies demonstrably were right on Iraq. And OIF opponents demonstrably have been revisionist and wrong.

To equip you for that contest, here is my explanation of Operation Iraqi Freedom's law and policy, fact basis: https://operationiraqifreedomfaq.blogspot.com/.

The OIF FAQ post synthesizes the controlling law, policy, and precedent and determinative facts that define the OIF decision. Its FAQ-style framework is oriented on the usual main talking points of the revisionist anti-OIF narrative. Hewing to the bedrock of the primary source authorities is the most effective way to correct the prevalent conjecture, distorted context, and misinformation that have obfuscated the Iraq issue.

In other words, the OIF FAQ is essentially the relitigation of the Iraq issue that Governor (Jeb) Bush should have undertaken when he was confronted with the Iraq issue during the 2015-2016 presidential campaign. "Knowing what we know now", President Bush's decision on Iraq demonstrably was correct on the law and facts.

You're trying to do the right thing, and it's needed. But to make headway, you must re-lay the foundation of the politics by clarifying the Iraq issue to the public. If you have questions about my work, please ask.



Also see Criticisms and suggestions for International Law and the War in Iraq (Yoo, 2003) and Rebuke of and advice to Charles Duelfer.