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).