Review of Hal Brands and Peter Feaver's "Lessons from the Iraq War"

PREFACE: Hal Brands is the Henry A. Kissinger Distinguished Professor of Global Affairs at the Johns Hopkins School of Advanced International Studies and a scholar at the American Enterprise Institute. Peter Feaver is a professor of political science and public policy and the director of the Program in American Grand Strategy at Duke University. I reviewed their 20JUN19 National Review article, Lessons from the Iraq War, with a focus on the legal-factual aspect. Their advocacy of clarifying the Iraq issue for the public is crucial and urgent. But their argument defeats itself by upholding otherwise rebuttable key premises of the inimical narrative they purport to solve. My task tip to Professor Brands for "What Democrats Need to Admit about Iraq"and 3 pieces of counsel to Professor Brands and Professor Feaver are additionally included. Professors Brands and Feaver's e-mails in our respective exchanges are omitted.

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from: [Eric LC]
to: [Hal Brands], [Peter Feaver]
cc: [David French]
date: Sep 12, 2019, 6:30 PM
subject: Review of "Lessons from the Iraq War" (National Review) with a focus on the legal-factual aspect

Professor Brands and Professor Feaver,

I share your concern that "the prevailing debate [about the Iraq War] distorts the historical record and harms American foreign policy". I agree "the stakes are too high to let polemical, politicized, or problematic arguments about the Iraq War...contaminate the public debate". I also believe that "getting the Iraq story right is not simply a matter of historical accuracy; it is a matter of national security today and in the future".

To meet that purpose, I marshal the primary source authorities, i.e., the set of controlling law, policy, and precedent and determinative facts that define OIF's justification, at Operation Iraqi Freedom FAQ to clarify the Iraq issue and correct for the prevalent conjecture, distorted context, and misinformation that have obfuscated the Iraq issue. In particular, the eponymous OIF FAQ post synthesizes the primary sources into a coherent narrative form that is purpose-designed to lay a proper foundation and provide a study guide for the Iraq issue. A main theme of the OIF FAQ is the Clinton-to-Bush continuity in the Gulf War ceasefire compliance enforcement, which makes it well-suited for "What Democrats Need to Admit about Iraq".

With that, I am writing you to review your 20JUN19 National Review article, Lessons from the Iraq War, with a focus on the legal-factual aspect. While my review does not focus on the strategic aspect, strategy serves law and policy. Therefore, a correct understanding of the law and policy is necessary to judge whether "the war was a strategic mistake" or whether OIF rightly upheld the law and policy on Iraq.

Having said that, my opening comment is about strategy:

Brands, Feaver:

Understanding the limits of U.S. power and the dangers inherent in major military interventions — something that supporters of the war failed to do — is a prerequisite to keeping America engaged and effective in a world where new dangers abound.
... Vietnam haunted U.S. foreign policy for decades and arguably still casts its shadow to this day.

See the #americanprimacy section of "10 year anniversary of the start of Operation Iraqi Freedom: thoughts".

The wider importance of the Iraq issue boils down to elementary political science: American leadership since World War 2 has been based on deterrence sufficient to effect compliance. Deterrence sufficient to effect compliance is based on the credible threat and use of force.

At the dawn of the post-Cold War era, the US-led enforcement of Iraq's compliance with the UNSCR 660 series in the Gulf War set the baseline for the liberal international order. The subsequent US-led enforcement of Iraq's compliance with the purpose-designed Gulf War ceasefire threat-resolution measures was tantamount to the primary credibility test of post-Cold War American leadership. Thus, the "intransigence and defiance of the Iraqi regime" (Bush, 18MAR03) eroded the credibility of American leadership on the international stage as the HW Bush and Clinton administrations persistently failed to bring Iraq into its mandated compliance.

The prescription for "keeping America engaged and effective in a world where new dangers abound" is found by answering why Saddam chose "material breach" (UNSCR 1441) when he could and should have switched off the US-led enforcement at any time over the intervening decade-plus by simply fulfilling the Gulf War ceasefire conditions that Iraq had accepted in 1991. Instead, Saddam disdained American leadership enough to breach through Iraq's "final opportunity to comply" (UNSCR 1441).

"Understanding the limits of U.S. power" lays out two paths: Either accept limits of U.S. power that fall short of real competitive American leadership of the free world. Or, work to expand those limits until they are sure and strong enough to truly champion pax Americana.

America's choice following the Iraq War is essentially the same choice we faced following the Korean War. As inflection points of modern American leadership, the Korean War is the analogue of the Iraq War.

If America follows the Iraq War in line with the Korean War precedent, then "lessons from the Iraq War" will set the baseline for upgraded American leadership that's fit to champion pax Americana. The alternative is accepting OIF stigma as the upgraded v2.0 heir to the debilitating Vietnam syndrome.


Brands, Feaver:

There are no two ways about it: The Iraq War was a tragic mistake.

There are no two ways about it: On the law and facts, President Bush's determination on Iraq was correct: the case against Saddam is substantiated.

Basic issue-rule, fact pattern analysis shows the OIF decision was substantively correct on the facts, procedurally correct on law and precedent, and justified on the policy.


Brands, Feaver:

For starters, many members of the anti-war camp are wedded to a false narrative about the origins of the war — a simplistic “Bush lied, people died” myth ...

See the OIF FAQ answer to "Did Bush lie his way to war with Iraq". [Excerpt:

[T]he prevalent myth that Operation Iraqi Freedom was based on a lie relies on a false premise that shifted the burden of proof from Iraq proving it had disarmed in compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates.

In fact, the US as the chief enforcer of the UNSCR 660-series resolutions held no burden of proof in the Gulf War ceasefire enforcement. From the outset of the Gulf War ceasefire, Saddam as the probationary party held the entire burden to prove Iraq was compliant with the "governing standard of Iraqi compliance" (UNSCR 1441) that was necessary to satisfy "the need to be assured of Iraq's peaceful intentions [and] ... to secure peace and security in the area" (UNSCR 687). The question of "Where is Iraq's WMD?" was never for the US and UN to answer; it was always a question Saddam was required to answer according to UNSCR 687 (1991) to prove Iraq had disarmed.

Neither demonstration of Iraqi possession nor the intelligence was an element of the Gulf War ceasefire enforcement, which pivoted solely on whether Iraq proved compliance with the UNSC resolutions. The law and policy of the Gulf War ceasefire plainly show its enforcement was compliance-based and "the resolutions of the Council constitute the governing standard of Iraqi compliance" (UNSCR 1441). The pre-war intelligence was not the governing standard of Iraqi compliance and thus, no matter its predictive precision, did not and could not trigger OIF. By procedure, only Iraq’s noncompliance with its ceasefire obligations could trigger enforcement, and only the "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441) could switch off the enforcement.

Casus belli in the UNSCR 660-series enforcement — i.e., "the origins of the war" — was ever Iraq's "continued violations of its obligations" (UNSCR 1441), which are confirmed to have been categorical.]


Brands, Feaver:

... the inherent limits of pre-war intelligence ...

See the #intelnotevidence section of "10 year anniversary of the start of Operation Iraqi Freedom: thoughts".


Brands, Feaver:

Some [of the war’s initial critics] were simply unpersuaded that the use of force was the best available option for combating the Iraqi threat.

See the OIF FAQ answer to "Why did resolution of the Saddam problem require a threat of regime change".


Brands, Feaver:

This [Iraq Liberation Act of 1998] was not an authorization for war ...

P.L. 105-338 did not need to be an authorization for the use of military force. P.L. 102-1 was the standing authorization for "the use of all necessary means" (P.L. 102-190) to "bring Iraq into compliance with its international obligations" (P.L. 105-235).

Excerpt from President Clinton's signing statement on P.L. 105-338:

My Administration has pursued, and will continue to pursue, these objectives through active application of all relevant United Nations Security Council resolutions.

The statutory text, “[n]othing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces” (P.L. 105-338), is not a restriction. The Iraq Liberation Act of 1998 belongs to the law and policy enforcing Iraq's mandated compliance, which means "efforts to remove the regime headed by Saddam Hussein from power in Iraq" (P.L. 105-338) were authorized with "the use of all necessary means" (P.L. 102-190) to "bring Iraq into compliance with its international obligations" (P.L. 105-235).


Brands, Feaver:

But the evidence also showed that the administration was right to believe that Saddam was gaming the system, that he was planning a WMD build-up once he got out from under the sanctions (which were rapidly eroding) ...

Saddam was more than "planning a WMD build-up". Reconstitution of Saddam's WMD program was underway.

Excerpt from the OIF FAQ answer to "Why did Bush leave the ‘containment’ (status quo)":

A prevalent assumption in the politics is the ISG finding, "In addition to preserved capability, we have clear evidence of his intent to resume WMD as soon as sanctions were lifted," means Saddam had not undertaken to resume WMD because the UNSC had not yet officially lifted the UNSCR 660-series sanctions. However, ISG reported Saddam's position on the sanctions was "We have said with certainty that the embargo will not be lifted by a Security Council resolution, but will corrode by itself." ISG findings confirm Saddam’s "end-run strategy" was to lift the sanctions by undermining them for "the de facto elimination of sanctions" rather than to lift the sanctions by UNSC decree through compliance with "the formal and open Security Council process". From Saddam's perspective, he was lifting the sanctions long before the 2002-2003 "final opportunity to comply" (UNSCR 1441):

By 2000-2001, Saddam had managed to mitigate many of the effects of sanctions and undermine their international support. Iraq was within striking distance of a de facto end to the sanctions regime, both in terms of oil exports and the trade embargo, by the end of 1999.
... As UN sanctions eroded there was a concomitant expansion of activities that could support full WMD reactivation. [ISG]

In fact, by the time of President Bush's September 2002 speech to the UN General Assembly, Iraq had undertaken conventional and WMD-related armament activity in violation of UNSCR 687 for years. Reconstitution of Saddam's WMD program was underway. The Regime Finance and Procurement section of the Iraq Survey Group Duelfer report details the Saddam regime's nearly completed defeat of the sanctions and 'containment' that was averted with OIF.

Brands, Feaver:

The war was waged on premises that proved to be faulty or false: that the threat posed by Saddam Hussein’s weapons programs was growing and urgent ...
... In hindsight, we now know that the Iraqi threat was not as urgent as the Bush administration claimed in 2002.

In fact, the premise that "the threat posed by Saddam Hussein’s weapons programs was growing and urgent" is confirmed.

The Iraq Survey Group corroborated the pre-war indications that Saddam Hussein's weapons programs were growing. For example, ISG found "From 1999 until he was deposed in April 2003, Saddam’s conventional weapons and WMD-related procurement programs steadily grew in scale, variety, and efficiency."

Whether you believe the threat posed by Saddam's growing weapons programs was "as urgent as the Bush administration claimed in 2002" depends on whether you "[r]ecogniz[e] 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" (UNSCR 1441).

The politics have obfuscated that the urgency of the distinctive threat posed by "Saddam Hussein's weapons programs", and more so Iraq's unaccounted for armament, was measured according to the Gulf War ceasefire "governing standard of Iraqi compliance" (UNSCR 1441), not a general standard.

The Gulf War ceasefire measures were purpose-designed to resolve the manifold threat that Saddam established with the Gulf War. The de jure and essential threat of Iraq was the noncompliant and unreconstructed Saddam regime, not Iraq's proscribed weapons in and of themselves — albeit the UNSCR 687-mandated disarmament was the principal step of the ceasefire compliance process.

As such, when President Clinton announced Operation Desert Fox, he reminded the international community that the noncompliant Saddam regime's "continuing threat" (P.L. 102-190) was assessed with its own standard.

What did that mean in practice?

[It meant Saddam's distinctive threat was assessed by Iraq's quantifiable noncompliance with the purpose-designed Gulf War ceasefire threat-resolution measures. As Secretary of State Albright recapitulated the basic policy on Iraq, "Our view, which is unshakable, is that Iraq must prove its peaceful intentions. It can only do that by complying with all of the Security Council resolutions to which it is subject. ... And the evidence is overwhelming that Saddam Hussein's intentions will never be peaceful."]

Picture the extraordinary security measures for Hannibal Lecter in The Silence of the Lambs and the distinctive threat of an ordinary pen hidden on his person. In practice, the "governing standard of Iraqi compliance" (UNSCR 1441) meant proscribed items and activities that would be tolerated with other nations held a heightened threat value with noncompliant Iraq. For example, excerpt from the Iraq Survey Group:

The UN deemed Iraq’s accounting of its production and use of BW agent simulants—specifically Bacillus subtilis, Bacillus lichenformis, Bacillus megaterium and Bacillus thuringiensis to be inadequate. ISG remains interested in simulant work because these items may be used not only to simulate the dispersion of BW agents, develop production techniques, and optimize storage conditions, but also the equipment used for their manufacture can also be quickly converted to make BW agent.
...
Iraq also possessed declarable equipment for chemical production, which it had not declared to the UN. ... By cannibalizing production equipment from various civilian chemical facilities, it would have been possible for Iraq to assemble a CW production plant. Alternatively, equipment that was less suitable could have been reconfigured at an existing site and used for short-term limited production. Iraq had improvised and jury-rigged equipment in the past.

Moreover, discussion of Saddam's WMD capability often assumes military battlefield application, yet the more pressing concern was the threat of terrorist application of Saddam's WMD. President Clinton was mindful of Saddam's UNSCR 687 terrorism violations when he warned of "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...who travel the world among us unnoticed." President Bush concurred that "chemical agents, lethal viruses and shadowy terrorist networks are not easily contained ... Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option."

The two US presidents were right to be alarmed. The Iraqi Perspectives Project found "The rise of Islamist fundamentalism in the region gave Saddam the opportunity to make terrorism...not only cost effective but a formal instrument of state power", "evidence shows that Saddam's use of terrorist tactics and his support for terrorist groups remained strong up until the collapse of the regime", and "the [Saddam] regime was willing to co-opt or support organizations it knew to be part of al Qaeda". Along with proscribed dual-use capability, such as the obviously suspect "BW agent simulants" program, the Iraq Survey Group found "the Iraqi Intelligence Service (IIS) maintained throughout 1991 to 2003 a set of undeclared covert laboratories".

The IIS was, of course, the regime arm that managed Saddam's terrorism and chemical and biological weapons programs.

If you choose to overlook the operative threat diagnosis of Saddam's categorical violation of the "governing standard of Iraqi compliance" (UNSCR 1441) and trust in Saddam's sanity and restraint "regardless of the consequences", instead, then you could conceivably believe the threat posed by Saddam's growing weapons programs was less than urgent.

But if you look at the facts in the operative context of the Gulf War ceasefire compliance enforcement, then the reasonable view aligns with Jim Lacey's conclusion, "Given the evidence, it appears that we removed Saddam’s regime not a moment too soon." Professor Lacey's conclusion was informed by his work with the Iraqi Perspectives Project assessing Saddam's terrorism taken together with ISG's findings.

Knowing what we know now about the Saddam regime's "regional and global terrorism, including a variety of revolutionary, liberation, nationalist, and Islamic terrorist organizations" (IPP) taken together with Iraq's categorical ceasefire breach, the Iraqi threat was not "overestimated". It was underestimated.


Brands, Feaver:

They [members of the anti-war camp] use evidence developed after the invasion, when the United States had unimpeded access to Iraqi territory and regime insiders, to pretend that it should have been obvious that pre-war intelligence estimates were overstating the Iraqi threat.

The assumption that the Iraq Survey Group had "unimpeded access to Iraqi territory and regime insiders" represents a prevalent misconception that has critically skewed the discourse on Iraq.

As you alluded, the ISG findings are the basis for the charge that "the pre-war intelligence estimates were overstating the Iraqi threat". Yet in fact, due to the practical limitations of the ex post investigation, 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.

The politics have obfuscated that the Iraq Survey Group's [non-]findings are heavily qualified in the report's Transmittal Message, Scope Note, and various sections. ISG cautions that the Saddam regime was expert at hiding proscribed items and activities with exceptional operational and information security, much evidence was lost prior to, during, and after the invasion, key Saddam regime officials were not forthcoming, statements conflicted, suspect areas were "sanitized", and other practical factors, such as the terrorist insurgency, limited its investigation.

Think back to law school about criminal procedure and rules of evidence: the ISG investigation was not that. Saddam's WMD was established fact upon which the burden was on Iraq to prove it disarmed as mandated. Hence, the 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. Neither were the OIF invasion and occupation designed for that kind of proof. 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).

Consequently, David Kay informed the Senate Armed Services Committee that "at the end of the work of the [Iraq Survey Group] there's still going to be an unresolvable ambiguity about what happened ... [due to] the unparalleled looting and destruction, a lot of which was directly intentional, designed by the security services to cover the tracks of the Iraq WMD program and their other programs as well, a lot of which was what we simply called Ali Baba looting."

What does that mean in practice?

In practice, the "unresolvable ambiguity" (Kay) means that we are compelled to speculate about the proscribed items and activities that were "sanitized" (ISG) by the "unparalleled looting and destruction, a lot of which was directly intentional, designed by the security services to cover the tracks of the Iraq WMD program" (Kay).

It means that what the Iraq Survey Group found — and ISG found many UNSCR 687 violations — comprised a floor only, not a complete account of Saddam's WMD. ISG reported "fragmentary and circumstantial" evidence of greater WMD-related activity, including BW production, that it could not definitely verify. 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. At the close of ISG's investigation, significant questions remained undisposed.

And it means that the prevailing political demand to demonstrate that Saddam's WMD matched the pre-war intelligence estimates was always unrealistic as well as inapposite. If the legitimacy of the Iraq intervention pivoted on proving the pre-war estimates were predictively precise, then of course it likely would be de-legitimated given that Saddam's forces had a long, practically free hand to conceal, alter, and destroy evidence before and during the ex post investigation. Which they did.

My corrective criticism of President Bush's self-recriminatory reaction to ISG's findings in his 2010 memoir, Decision Points suggests President Bush has not read key fact findings on Iraq carefully, covers much the same ground.


Brands, Feaver:

[T]he Bush administration believed the consensus view of our intelligence community (and those of key allies) that Iraq still possessed significant stockpiles of weapons of mass destruction ... The evidence uncovered by the invasion and the subsequent interrogation of Iraqi officials showed that the administration was wrong to believe the more pessimistic estimates about the nature of that arsenal.

The fact that the Iraq Survey Group did not find stockpiles matching "the more pessimistic estimates" does not infer "the administration was wrong to believe the more pessimistic estimates about the nature of that arsenal".

Due to the Iraqi "concealment and deception activities" (ISG), absence of evidence in ISG's findings often indicates an evidentiary gap rather than evidence of absence. After Saddam did not account for "his [his "]stockpiles of weapons of mass destructions" with the UN inspections — 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) — the Iraq Survey Group 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 agents ... There is a very limited chance that continuing investigation may provide evidence to resolve this issue."

For the Iraq Survey Group, the fate of Saddam's WMD stockpile is an "unresolvable ambiguity" (Kay). The CW munitions confiscated in Operation Avarice exemplify ISG's caveat, "ISG cannot discount the possibility that a few large caches of munitions remain to be discovered within Iraq."

In practical terms, there is thin threat margin between the stockpiles that ISG did not find and the proscribed capability that ISG did find. The thin threat margin shrinks further with Saddam's hidden IIS capabilities. Procedurally, there was no distinction of prohibition and enforceability under UNSCR 687. The necessary standard to resolve Saddam's distinctive WMD threat was "full and immediate compliance by Iraq without conditions or restrictions with its obligations ... bringing to full and verified completion the disarmament process established by resolution 687" (UNSCR 1441)[.]

For the "consensus view" of international leaders and intelligence agencies, again, Saddam's WMD was established fact in the UNSCR 687 disarmament process. The "consensus view" on Saddam's WMD was universally grounded on the UN inspections because practically, the intelligence agencies were thwarted by Iraq's "denial and deception operations" (ISG) and the UN inspections were physically nearest to Saddam's WMD, although the UN inspectors were also thwarted by Iraqi counter-intelligence. More significantly, procedurally, international enforcement action on Iraq's "continued violations of its obligations" (UNSCR 1441) on WMD, including OIF, was determined upon the assessments by the UN inspections. [In Iraq's "final opportunity to comply with its disarmament obligations" (UNSCR 1441), UNMOVIC assessed Saddam did not disarm as mandated.]

President Clinton, CNN interview, 03JUL03:

[I]t is incontestable that on the day I left office, there were unaccounted for stocks of biological and chemical weapons.

The law and policy on Iraq were clear on the President's duty. For the Bush administration to disbelieve Saddam's WMD willy nilly and consequently renege on the defining US-led international law enforcement of the post-Cold War would have been radical Executive malfeasance.


Brands, Feaver:

[The war was waged on premises that proved to be faulty or false:] ... and that taking down Saddam’s regime could cause a democratic chain reaction throughout the Middle East.

President Bush did carry forward the hope from his predecessors that a democratically reformed Iraq would set a constructive example for the Middle East. However, Bush's policy statements do not show an expectation that OIF would "cause a democratic chain reaction throughout the Middle East" in short order akin to the 2010-2011 Arab Spring. Nor do they show an expectation that OIF would cause a "democratic chain reaction throughout the Middle East" at all.

At first, I guessed you mixed up President Bush's Freedom Agenda, which was a post-9/11 innovation, with the policy on Iraqi democratic reform per UNSCR 688, which Bush carried forward from Presidents HW Bush and Clinton. However, the Freedom Agenda was also more measured than your characterization.

Perhaps Bush officials independently speculated that Iraqi regime change "could" trigger a "democratic chain reaction throughout the Middle East" akin to the Arab Spring. But that expectation wasn't an element of President Bush's actual policy on Iraq.


Brands, Feaver:

[The war was waged on premises that proved to be faulty or false:] ... that the post-war stabilization and democratization of Iraq could be accomplished quickly and on the cheap ...

See the #postwar and #postwarmil sections of "10 year anniversary of the start of Operation Iraqi Freedom: thoughts" for exposition about the initial post-war plan, insurgency setback, and COIN adjustment.

"Getting the Iraq story right" includes noting that the "democratization of Iraq" was accomplished quickly. Recall that sovereignty was officially restored to post-Saddam Iraq in a little over a year with UNSCR 1546, which "[w]elcom[ed] the beginning of a new phase in Iraq’s transition to a democratically elected government".

Noting post-Saddam Iraq's fast transition to democratic governance helps to explain the initial post-war plan. The basic concept was that security would follow upon political progress, and in fact, post-Saddam Iraq met its early political benchmarks with the Coalition Provisional Authority. The 'light footprint' support role initially assigned to the military for the post-war and the associated cost projections were not due to "hubris" but rather the preliminary belief that a traditional (and yes, costlier) military-centered 'heavy footprint' occupation would be counterproductive for the Iraqi political reform that was the heart of the initial post-war plan.


Brands, Feaver:

And some of the decisions that backfired most severely by alienating the Sunnis — such as disbanding the Iraqi military and pursuing aggressive de-Baathification — were rooted in an understandable need to appease Iraq’s majority Shia population.

Those decisions were also rooted in the humanitarian law and policy on Iraq that had developed over the course of the decade-plus UNSCR 688 enforcement. See the compilation at the #unscr688 section of "10 year anniversary of the start of Operation Iraqi Freedom: thoughts".

I suggest CPA officials Dan Senor and Walter Slocombe's clarification on this issue. Excerpt:

When the American-led coalition "disbanded" the Iraqi Army in May 2003, it was simply recognizing the fact that the army had long since dissolved itself -- in the Pentagon's jargon, "self-demobilized" -- as the mass of (mostly Shiite) conscripts fled the brutality of their (mostly Sunni) officers.

Brands, Feaver:

Defenders of the administration also claimed that Obama was merely fulfilling the terms of the 2008 Status of Forces Agreement (SOFA), which supposedly bound the United States to withdraw its troops at the end of 2011.
The latter justification is unpersuasive, given that Obama himself initially sought to negotiate an extension of the SOFA, the same course of action the Bush administration had always envisioned. The former justification lost some of its persuasiveness when Obama ordered U.S. troops back into Iraq in 2014 under essentially the terms that had been on offer in 2011.

See the sources and expository commentary on this issue at An irresponsible exit from Iraq.

The missing piece that explains both President Obama's negotiation for a follow-on SOFA and the conspicuously simple return of US forces to Iraq is the Strategic Framework Agreement, whose conditions-based guidelines constitute the overarching law-and-policy frame for the US-Iraq relationship. The open-ended SFA was signed concurrently with the 2008-2011 SOFA and provided for the continuation or restoration of US forces in Iraq. The Obama administration's negotiation with Iraq on the status of forces following the 2008-2011 SOFA and the subsequent return of US forces to Iraq accorded with the SFA.


Brands, Feaver:

We still have much to learn about the Iraq War. As historians write and rewrite the history of that conflict in the coming years, some issues that looked black-and-white at the time will come to appear in shades of gray. We do not pretend to have a monopoly on wisdom about the Iraq War ourselves. But we are certain that the prevailing debate distorts the historical record and harms American foreign policy.

The fundamental step towards your objective is re-laying a proper foundation for the public with the controlling law, policy, precedent, and determinative facts that define the Iraq issue. Clarifying the Iraq issue as such would go a long way towards rectifying the "prevailing debate [that] distorts the historical record and harms American foreign policy".

Excerpt from the preface to Critical responses to leaders and pundits:

The basic premise of the OIF FAQ is that hewing to the bedrock law, policy, precedent, and facts that define the Iraq issue is the closest we can reach the truth of the matter and the best way to cut through the prevalent conjecture, distorted context, and misinformation that have obfuscated the Iraq issue.
...
Competing narratives of the why of OIF are simple to sort on the merits. Since the Iraq issue comprises the defining post-Cold War American-led international law enforcement, the actual why of OIF is readily understood simply by referring to the readily accessible, plainly stated law, policy, precedent, fact record of the UNSCR 660-series compliance enforcement. The law and policy, fact basis of the Iraq intervention is extraordinarily well developed due to the long, iterative focus on the Saddam regime's noncompliance that preceded Iraq's "final opportunity to comply" (UNSCR 1441). When the body of discourse and data is filtered through the "governing standard of Iraqi compliance" (UNSCR 1441) and its operative enforcement procedure, the clarified Iraq issue that emerges is eminently straightforward.

I appreciate that "Lessons from the Iraq War" offers a lot of meat on the bone to chew on. I ended up regretfully culling half the comments from my review.

I hope the OIF FAQ and this review help your mission, which I share. If you have questions about my work, please ask.

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from: [Eric LC]
to: [Hal Brands]
date: Jul 11, 2019, 5:28 PM
subject: Re: Solution for "What Democrats Need to Admit about Iraq" per "Lessons from the Iraq War" (Hal Brands, Peter D. Feaver)

Professor Brands,

You're welcome. As Professor Feaver and you explained, this is important.

Task tip: This excerpt is from President Clinton's remarks to Pentagon personnel on February 17, 1998:

Saddam Hussein's Iraq reminds us of what we learned in the 20th century and warns us of what we must know about the 21st. In this century we learned through harsh experience that the only answer to aggression and illegal behavior is firmness, determination, and, when necessary, action.

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. If we fail to respond today, Saddam and all those who would follow in his footsteps will be emboldened tomorrow by the knowledge that they can act with impunity -- even in the face of a clear message from the United Nations Security Council and clear evidence of a weapons of mass destruction program.

President Clinton's premise of a "clear evidence of a weapons of mass destruction program" was an a-ha moment in my study of the Iraq issue because the "clear evidence" cited by Clinton was the UNSCR 687 inspection findings. That piece unlocked the realization that in 2002-2003, the same as in 1998, American and international intelligence agencies relied on the UNSCR 687 inspection findings as the baseline for assessing Saddam's WMD versus Iraq's "denial and deception operations" (Iraq Survey Group), which in and of themselves violated the Gulf War ceasefire disarmament mandates.

Per President Clinton, the UNSCR 687 inspection findings functioned as evidential confirmation of Saddam's WMD, 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).

Besides Iraq's proficient counter-intelligence, the reliance by the intelligence community on the UN inspections made sense because the casus belli was Iraq's "material breach" (UNSCR 1441) of the Gulf War ceasefire. By procedure, the UNMOVIC Clusters document triggered President Bush's determination for Operation Iraqi Freedom in Iraq's "final opportunity to comply" (UNSCR 1441) as the UNSCOM Butler report triggered President Clinton's determination for Operation Desert Fox when "Iraq ... abused its final chance" (Clinton).

The politics have obfuscated that the mandate was for Iraq to account for Saddam's WMD, not for the US and UN to find Saddam's WMD. The fact of Iraq's UNSCR 687-proscribed armament was practically established and procedurally presumed in the Gulf War ceasefire disarmament process until Iraq proved it disarmed as mandated. Thus, the consensus view on Saddam's WMD was grounded on the established fact of Saddam's WMD with the fact that Iraq did not account for and disarm Saddam's WMD as mandated, which was confirmed by UNSCOM and UNMOVIC at President[s] Clinton and Bush's respective decision points for Operations Desert Fox and Iraqi Freedom.

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I e-mailed this advice to Hal Brands and Peter Feaver in response to Professor Feaver's discouraged response to my corrective review of their 20JUN19 National Review article, Lessons from the Iraq War:

from: [Eric LC]
to: [Hal Brands], [Peter Feaver]
cc: [David French]
date: Sep 17, 2019, 3:50 PM
subject: Re: Review of "Lessons from the Iraq War" (National Review) with a focus on the legal-factual aspect

Professor Brands and Professor Feaver,

...
I understand you're discouraged ... As I related to Professor Feaver, I've been in your shoes in the low moment a righteous cause looks lost. Since we share this righteous cause, I'm wearing these shoes with you.

Here are 3 pieces of counsel based on my advocacy experience (referenced in the apt From Defeat to Victory, which I recommend reading):

1. Foremost and fundamentally, your advocacy will be self-defeating as long as you decry "the prevailing debate [that] distorts the historical record" but then also uphold otherwise readily correctable key premises of the prevailing false narrative. The concept of the case sets the frame for everything else. Before you can hope to convince "the people we would need to reach", you need to reconceive your basic argument.

For that purpose, the primary source authorities — i.e., the law, policy, precedent, and facts that define the actual justification of the US-led international law enforcement with Iraq — are exceptionally straightforward, thorough, and plain. If you'd rather work directly from the primary sources rather than jump the learning curve with the OIF FAQ cheat sheet — well, they aren't my intellectual property. Framing your argument with the bedrock law and facts of OIF's justification is persuasive because they're incontrovertible.

For example, this point looks different when OIF's operative context is clarified: Your article blames President Bush's determination on Iraq for "the fact that the Iraq War had caused bitter disputes within NATO, and dramatically depleted American prestige". Yet ethical leadership is usually unpopular with unethical fellows when it disrupts their illicit activities. UN Security Council and NATO founding member France's deep complicity with Saddam's "continued violations of its [Iraq's] obligations" (UNSCR 1441), i.e., casus belli, is particularly appalling. France's malfeasance directly influenced Saddam to choose "material breach" (UNSCR 1441) and thereby trigger the invasion instead of comply as mandated and thereby switch off the credible threat of regime change that capacitated Iraq's "final opportunity to comply" (UNSCR 1441). Excerpt from A problem of definition in the Iraq controversy: Was the issue Saddam's regime or Iraq's demonstrable WMD?:

The Iraq Survey Group found Russia, China, France, and other mission opponents were complicit rearming Saddam in violation of the UNSCR 687 arms embargo.

The Regime Finance and Procurement section of the Iraq Survey Group Duelfer report, Iraq's Suppliers at Iraq Watch, and IIC's Report on the Manipulation of the Oil-for-Food Programme detail the nearly complete extent that Iraq had defeated the sanctions and 'containment' regime with illicit diplomatic and economic means.

2. Reconception of your basic argument is prerequisite, but when political conditions are adverse, the merits of an argument typically aren't enough by themselves to convince "the people we would need to reach" to do the right thing. In practice, that means you need to step back for now from "the people we would need to reach". First identify and recruit like-minded persons and arm them with your upgraded argument. Organize your school into a critical mass that multiplies, competes vigorously against the opposing school across the political arena, and thereby generates the social cues necessary for the conducive political conditions you need to move "the people we would need to reach".

In other words, the "negative reaction" to your urgent appeal shows your mission needs an archetypal grassroots movement — which happens to be the specialty of student-faculty coalitions on university campuses like the ones where you teach. I assume you have access to potentially like-minded students and faculty who are proficient in traditional and social-media advocacy.

3. Failure sucks, but setback-and-adjustment is the normal competitive pattern in the political arena as any other. If your aspirational standard is pax Americana, then you don't have a choice: Upholding the sufficient corrective ethical adaptive resolute American leadership that crystallized in the crucible of Iraq under President Bush is essential for the viability of your preferred course.

We've risen before to the frightening challenges of a new era. American history didn't start (over) with Vietnam. If our forebears could constructively reform "the limits of U.S. power" upon the epic symphony of horrific disasters that was the Korean War under the avid eye of a vigorous ascendant Communism, then we can certainly follow their precedent upon the comparative cakewalk of the Iraq War "in a world where new dangers abound".

But to get us there, you and your school of policy first need to compete for predominance over the opposing school of policy. Thus far in the political contest, you've inexplicably given the opposing school free rein with an otherwise readily correctable, blatantly false narrative of OIF, which they've ruthlessly exploited to rise over and methodically degrade your school. You need to stop that.

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

Clarification of the Iraq issue in Congressional Research Service report "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications"

PREFACE: Jennifer Elsea is a legislative attorney and Matthew Weed is an analyst in foreign policy legislation with the Congressional Research Service. I clarified the Iraq issue in their Congressional Research Service report, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications (18APR14). Ms. Elsea and Mr. Weed didn't respond to my e-mail, so I don't know whether they've read it.

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from: [Eric LC]
to: [Jennifer Elsea], [Matthew Weed]
date: Sep 3, 2019, 3:06 PM
subject: Clarification of the Iraq issue in "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications" (Congressional Research Service)

Ms. Elsea and Mr. Weed,

I use the primary source authorities, i.e., the set of controlling law, policy, and precedent and determinative facts that define OIF's justification, at Operation Iraqi Freedom FAQ to clarify the Iraq issue and correct for the prevalent conjecture, distorted context, and misinformation that have obfuscated the Iraq issue. A main theme of the OIF FAQ is the Clinton-to-Bush continuity in the Gulf War ceasefire compliance enforcement with a focus on Operations Desert Fox and Iraqi Freedom.

With that, I am writing you with critical comments on the historical background for the authorizations for the use of military force related to Iraq in your Congressional Research Service report, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications (18APR14). The comments include clarification that the 1991 AUMF covers the UN resolutions on Iraq adopted subsequent to UNSCR 678 and the Iraq AUMFs include the mandate to "restore international peace and security in the area" (UNSCR 678).

Your overall explication is a valuable resource that improved my understanding of declarations of war, declarations of national emergency, AUMFs, and the rest. I hope to reciprocate the utility with the OIF FAQ and these critical comments, mindful that the CRS "report will be updated as circumstances warrant".

Elsea, Weed:

On January 12, 1991, both houses passed the “Authorization for Use of Military Force Against Iraq Resolution.” Section 2(a) of that joint resolution authorized the President to use U.S. Armed Forces pursuant to U.N. Security Council Resolution 678 to achieve implementation of the earlier Security Council resolutions.

The interpretive question is whether the 1991 AUMF is limited to "implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677" or whether the 1991 AUMF includes, but is not limited to, those UN resolutions, pursuant to UNSCR 678 to "uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area" (UNSCR 678).

Congress answered the question in sections 1095 and 1096 of P.L. 102-190 by interpreting P.L. 102-1 with the non-limited inclusion meaning. Excerpt from P.L. 102-190:

(1) Iraq's noncompliance with United Nations Security Council Resolution 687 constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region;
... (3) the Congress supports the use of all necessary means to achieve the goals of Security Council Resolution 687 as being consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1).
...
(1) Iraq's noncompliance with United Nations Security Council Resolution 688 constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region;
... (3) the Congress supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 688 consistent with all relevant United Nations Security Council Resolutions and the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1).

The P.L. 102-190 clarification of the 1991 AUMF is referenced in the 2002 AUMF. Excerpt from P.L. 107-243:

Whereas in December 1991, Congress expressed its sense that it “supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 687 as being consistent with the Authorization of Use of Military Force Against Iraq Resolution (P.L. 102-1),” that Iraq’s repression of its civilian population violates United Nations Security Council Resolution 688 and “constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region,” and that Congress, “supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 688”;

Elsea, Weed:

President Bush also asserted that S.J.Res. 23 “recognized the authority of the President under the Constitution to take action to deter and prevent acts of terrorism against the United States.”

President Bush's assertion is plainly stated in S.J. Res. 23. Excerpt from P.L. 107-40:

Whereas the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.

Notably, the Antiterrorism and Effective Death Penalty Act of 1996 also presumes the President's counter-terrorism authority, albeit sans P.L. 107-40's plain statement of the President's counter-terrorism "authority under the Constitution". Excerpt from P.L. 104-132:

(2) the President should continue to make efforts to counter international terrorism a national security priority;
... (4) the President should use all necessary means, including covert action and military force, to disrupt, dismantle, and destroy international infrastructure used by international terrorists, including overseas terrorist training facilities and safe havens;
... (6) the President should continue to undertake efforts to increase the international isolation of state sponsors of international terrorism, including efforts to strengthen international sanctions, and should oppose any future initiatives to ease sanctions on Libya or other state sponsors of terrorism.

Consistent with your finding that P.L. 107-40's "authorization of military action against organizations and persons is unprecedented in American history", P.L. 104-132 instructs "the President should use all necessary means, including covert action and military force" yet does not refer to an AUMF. P.L. 107-40 explicitly and P.L. 104-132 implicitly show Congress's recognition that the President's counter-terrorism authority is grounded in the Constitution's Article 2 national security powers rather than its Article 1 war powers.

For Iraq, the P.L. 107-40 authorization "to use all necessary and appropriate force against those nations, organizations, or persons he determines...aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons" applies to the Saddam regime if the 2001 AUMF criteria is interpreted to include aid or harbor for the al Qaeda network not limited to the individuals known to have had a direct hand in the 9/11 attacks.

The Iraqi Perspectives Project confirmed that Saddam supported the al Qaeda network; excerpt:

Captured documents reveal that the regime was willing to co-opt or support organizations it knew to be part of al Qaeda-as long as that organization's near-term goals supported Saddam's long-term vision.
... Some aspects of the indirect cooperation between Saddam's regional terror enterprise and al Qaeda's more global one are somewhat analogous to the Cali and Medellin drug cartels. Both drug cartels (actually loose collections of families and criminal gangs) were serious national security concerns to the United States. Both cartels competed for a share of the illegal drug market. However, neither cartel was reluctant to cooperate with the other when it came to the pursuit of a common objective-expanding and facilitating their illicit trade.
...
Saddam supported groups that either associated directly with al Qaeda (such as the Egyptian Islamic Jihad, led at one time by bin Laden's deputy, Ayman al-Zawahiri) or that generally shared al Qaeda's stated goals and objectives.
...
Saddam's security organizations and bin Laden's terrorist network operated with similar aims, at least for the short term. Considerable operational overlap was inevitable when monitoring, contacting, financing, and training the regional groups involved in terrorism.

In addition to the Constitution and P.L. 107-40, the President's counter-terrorism authority with Iraq is grounded in the 1991 and 2002 AUMFs to enforce the UN resolutions on Iraq since the UN-mandated terms of the Gulf War ceasefire include Iraq's obligation to "condemn unequivocally and renounce all acts, methods and practices of terrorism" (UNSCR 687).

As well, the enforcement of Iraq's compliance with the UNSCR 688 humanitarian and UNSCR 687 terrorism-related mandates overlap since Saddam ruled with "broad-based discrimination and widespread terror” (UN Commission on Human Rights) and "[t]he predominant targets of Iraqi state terror operations were Iraqi citizens, both inside and outside of Iraq" (IPP).


Elsea, Weed:

In the summer of 2002, the Bush Administration made public its views regarding what it deemed a significant threat to U.S. interests and security posed by the prospect that Iraq had or was acquiring weapons of mass destruction.

See the OIF FAQ answer to "Why did Bush leave the ‘containment’ (status quo)" and the OIF FAQ answer to "Did Bush lie his way to war with Iraq".

The fact of Saddam's WMD was established in the Gulf War ceasefire compliance regime before George W. Bush was President. Upon the established fact of Saddam's WMD, Iraq's proscribed armament was presumed until Iraq satisfied its burden to prove it disarmed in accordance with the Gulf War ceasefire "governing standard of Iraqi compliance" (UNSCR 1441).

Tragically, Saddam opted not to disarm as mandated in Iraq's "final opportunity to comply" (UNSCR 1441). By procedure, OIF's casus belli was established when Hans Blix and UNMOVIC confirmed Iraq's "continued violations of its obligations" (UNSCR 1441).

Subsequently, the Iraq Survey Group corroborated UNMOVIC: "ISG judges that Iraq failed to comply with UNSCRs". And, despite the substantial evidentiary gaps in the ex post investigation due to the Iraqi "concealment and deception activities" (ISG), which in and of themselves breached the Gulf War ceasefire, ISG was able to confirm at minimum "clear evidence of his [Saddam's] intent to resume WMD", "preserved capability", "undeclared covert laboratories", and a "large covert procurement program" for "military reconstitution efforts ... [that] covered conventional arms, dual-use goods acquisition, and some WMD-related programs".

The Bush administration view on the Iraqi threat was not novel. 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" (UNSCR 1441) was established with the Gulf War, unresolved through the HW Bush and Clinton administrations, and consistent with the standing UN and US resolutions and US policy on Iraq.

Excerpt from the OIF FAQ answer to "Was Operation Iraqi Freedom legal":

The threat posed by the Saddam regime to "vital United States interests and international peace and security" (P.L. 105-235) was a standing threat that President Bush inherited from his two immediate predecessors. Hence, "the continuing threat posed by Iraq" in Public Law 107-243 was carried forward from "Iraqi actions pose a continuing unusual and extraordinary threat to the national security and foreign policy of the United States" in President Clinton's official notice to Congress on July 28, 2000.

The continuing threat to US national security from Saddam's continued violations of terrorism, disarmament, humanitarian, and other obligations was intrinsic with Iraq's material breach of the Gulf War ceasefire, where “Iraq's noncompliance with United Nations Security Council Resolution 687 [and 688] constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region” (P.L. 102-190), so that "[r]ecognizing 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" (UNSCR 1441), "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).

As such, the mandates to "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq" (P.L. 107-243) were national and international security aspects of the same problem, with the same solution: "Iraq fully comply with all of its obligations under Security Council resolutions" (Clinton) and "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441).

Elsea, Weed:

He emphasized, however, that if Iraq refused to fulfill its obligations to comply with U.N. Security Council resolutions, the United States would see that those resolutions were enforced.

That's a reiteration of the standing policy carried forward from the HW Bush and Clinton administrations.

The mandated solution, i.e., "the President is urged...to bring Iraq into compliance with its international obligations" (P.L. 105-235), for the threat that Iraq's noncompliance posed to international peace and security is thematic over the UN and US resolutions and US policy on Iraq. The Iraq Survey Group confirmed, "the Iraqis never intended to meet the spirit of the UNSC’s resolutions".

Note, by the close of the Clinton administration, "The [Saddam] 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" (ISG). While already discernible during the HW Bush administration, the Security Council rift between the Gulf War ceasefire enforcers (led by the US and UK) and Saddam's accomplices (led by Russia and France and joined by China) only fully crystallized during the Clinton administration. Therefore, while the policy on Iraq was essentially intact from President HW Bush to President Bush, the situation evolved in the interim so that at coda President Bush followed President Clinton's enforcement precedent.


Elsea, Weed:

Subsequently, on September 19, 2002, the White House proposed legislation to authorize the use of military force against Iraq. This draft would have authorized the President to use military force not only against Iraq but “to restore international peace and security in the region.”

There's no practical disparity. Congress effectively authorized the President to use military force to restore international peace and security in the region when it authorized the President to "enforce all relevant United Nations Security Council resolutions regarding Iraq" (P.L. 107-243) since the UN resolutions on Iraq are based on the mandate to "restore international peace and security in the area" (UNSCR 678 etc.).


Elsea, Weed:

P.L. 107-243 clearly confers broad authority on the President to use force. In contrast to P.L. 102-1, the authority granted is not limited to the implementation of previously adopted Security Council resolutions concerning Iraq but includes “all relevant ... resolutions.” Thus, it appears to have incorporated resolutions concerning Iraq that were subsequently adopted by the Security Council at least up to the expiration of the UN mandate on December 31, 2008, as well as those resolutions adopted prior to the enactment of P.L. 107-243. The authority also appears to extend beyond compelling Iraq’s disarmament to implementing the full range of concerns expressed in those resolutions.

See my comment above regarding the P.L. 102-190 clarification of P.L. 102-1.

Prior to the 2002 AUMF, Presidents HW Bush, Clinton, and Bush conducted multiple invasive military actions per the 1991 AUMF to enforce UN resolutions on Iraq that were adopted subsequent to UNSCR 678, such as the no-fly zones per UNSCR 688. Over the same period, Congress produced several resolutions in support of the US-led enforcement of UN resolutions on Iraq subsequent to UNSCR 678. See, for example, House Resolution 322.

Like UNSCR 1441, P.L. 107-243 is an enhanced update that incorporates developments in the Gulf War ceasefire compliance enforcement that accrued over the decade-plus following P.L. 102-1, UNSCR 678, and UNSCR 687. However, President Bush could have capacitated Iraq's "final opportunity to comply" (UNSCR 1441) with sound legal footing without P.L. 107-243. While enhanced, the 2002 AUMF is functionally redundant, not a novel deviation from the 1991 AUMF. P.L. 107-243 essentially repackages existing elements, including P.L. 102-1, that were already operative thanks largely to President Clinton's evident foresight and meticulous care in refining the case against Saddam and reinforcing the enforcement procedure for Iraq.


Elsea, Weed:

Nevertheless, P.L. 107-243 is narrower than P.L. 107-40, as well as President Bush’s originally proposed authorization, in that it limits the authorization for the use of force to Iraq.

That the wording of the UN resolutions on Iraq is not wholly mirrored in P.L. 107-243 does not change that the mandate to restore international peace and security in the area/region is intrinsic in the mandate to "enforce all relevant United Nations Security Council resolutions regarding Iraq" (P.L. 107-243). Beyond the law and policy that enforced the UN resolutions on Iraq, the mandate is a longstanding US national security interest in its own right.

Excerpt from P.L. 107-243:

Whereas it is in the national security interests of the United States to restore international peace and security to the Persian Gulf region: Now, therefore, be it Resolved ...

Elsea, Weed:

Finally, as with P.L. 107-40, the statutory authorization for use of force granted to the President in P.L. 107-243 is not dependent for its exercise upon prior authorization by the U.N. Security Council.

Yes. That being said, according to P.L. 102-1, P.L. 107-243, and Presidents Clinton and Bush's respective determinations to use force with Operations Desert Fox and Iraqi Freedom, UNSCR 678 is the prior authorization by the U.N. Security Council.


Elsea, Weed:

The Bush and Obama Administrations relied on P.L. 107-243’s authorities to maintain the presence of U.S. armed forces and to conduct military operations in Iraq until the withdrawal of U.S. armed forces in December 2011. After initial invasion operations and the removal of the Saddam Hussein regime from power, U.S. military operations in Iraq continued under P.L. 107-243 authority. Both the Bush and Obama Administrations considered Iraq a continuing threat to U.S. national security interests; in addition, U.S. armed forces were enforcing relevant U.N. Security Council resolutions regarding Iraq.

In addition, too, note that section 4 of P.L. 107-243 "expected...those actions described in section 7 of the Iraq Liberation Act of 1998 (P.L. 105-338)". Excerpt from P.L. 105-338:

SEC. 7. ASSISTANCE FOR IRAQ UPON REPLACEMENT OF SADDAM HUSSEIN REGIME.
It is the sense of the Congress that once the Saddam Hussein regime is removed from power in Iraq, the United States should support Iraq's transition to democracy by providing immediate and substantial humanitarian assistance to the Iraqi people, by providing democracy transition assistance to Iraqi parties and movements with democratic goals, and by convening Iraq's foreign creditors to develop a multilateral response to Iraq's foreign debt incurred by Saddam Hussein's regime.

Elsea, Weed:

⁴⁹ See UNSC Resolution 1511 (Oct. 16, 2003), UNSC Resolution 1546 (June 8, 2004), UNSC Resolution 1637 (November 8, 2005), UNSC Resolution 1723 (November 28, 2006), and UNSC Resolution 1790 (December 18, 2007).

Also see UNSCR 1483 (May 22, 2003). UNSCR 1511 "authorize[d] a multinational force under unified command to take all necessary measures" for "the implementation of resolution 1483". UNSCR 1483 merits special attention because it marked the transitional meeting of the Gulf War ceasefire enforcement and post-Saddam peace operations with the core compliance and nation-building elements of both missions.


Elsea, Weed:

Beginning January 1, 2009, U.S. armed forces remained in Iraq pursuant to an agreement between Iraq and the United States that set the date for withdrawal of such forces on December 31, 2011.

Note, the open-ended conditions-based Strategic Framework Agreement, which was signed concurrently with the status of forces agreement, provided for the continuation or restoration of US forces with Iraq. The Obama administration's negotiation with Iraq on the status of forces following the 2008-2011 SOFA and the subsequent return of US forces to Iraq accorded with the SFA.

Excerpt from An irresponsible exit from Iraq:

Alongside the SOFA, the US and Iraq signed the Strategic Framework Agreement (SFA), whose conditions-based guidelines constituted the overarching law-and-policy frame for the long-term US-Iraq relationship.
...
The 2008-2011 SOFA neither barred nor required a particular subsequent arrangement for President Bush's successor. The Arab Spring hadn't happened yet when the SOFA and SFA were signed, so the degeneration of the Arab Spring, especially in neighboring Syria, wasn't then a risk factor. If the trajectory of Iraq's progress had continued on pace, especially in relation to the 2010 elections in Iraq, it was conceivable for the US-led peace operations with Iraq to reduce significantly by 2011. The 2008-2011 SOFA provided a 3-year window for the next President to stay the course and advance Iraq's progress in the critical formative stage, then assess the situation and determine the transition to the next US-Iraq arrangement in accordance with the SFA's guidelines, analogous to Eisenhower's decision on the American global posture when post-WW2 transitioned to the Cold War.

Elsea, Weed:

P.L. 107-243 does not include provision for automatic termination of its use of force authorization, and Congress has not repealed the legislation. Thus P.L. 107-243 remains current U.S. law, although its continued effectiveness is questionable. Arguably, the President could rely on P.L. 107-243 to reintroduce U.S. armed forces into Iraq if he determined that Iraq once again posed a threat to U.S. national security, or in order to enforce relevant U.N. resolutions, as the legislation provides in its authorization language. Nevertheless, any presidential decision to again utilize the authority for use of military force in P.L. 107-243 would likely meet renewed resistance from some Members of Congress, as well as other observers who have argued for repeal of open-ended use of force authorizations such as this.

FYI, contemporary with your 18APR14 report, the #legal section of my 11JUN14 post, "The Fall of Mosul and legal authority for anti-ISIS strikes", unpacks "The issue of the President's legal authority to deploy the military to Iraq under current circumstances, absent a new statutory authority" (Eric LC). My 12FEB15 post, Quick reaction to the proposed AUMF against ISIS, also looks at the issue.

Regarding the controversy over "open-ended use of force authorizations such as this", I looked for an explanation of the legal grounds of the analogous Korea intervention in your report as a reference point for the Iraq intervention. I was dismayed not to find one. The Korea intervention was path-setting for Cold War-era US policy. In its toll, just about any week of the 1950-1953 Korean War, and just about any day at its height, was more intense than the whole 1990-2011 Iraq intervention. Since World War 2, encompassing the Korean War, US military forces have continuously served in Korea with substantial presence in an evolving role. Until President Obama changed course, US military forces seemed to be settling into a similar long-term presence and evolving role with Iraq akin to the longstanding "open-ended" US mission with Korea. Yet the ongoing Korea intervention is not controversial like the Iraq intervention despite that, as suggested by their absence from your report, the legal grounds of the Korea intervention appear to be significantly short of the legal grounds of the Iraq intervention.

I hope the OIF FAQ and these comments are helpful. If you have questions about my work, please ask.

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Related: Criticisms and suggestions for "International Law and the War in Iraq" (John Yoo, 2003), Explaining the grounds for Operation Iraqi Freedom to a law professor (Chibli Mallat), Correcting Mario Loyola: UNSCR 1441 did place the burden of proof on Iraq, For David French, recommendations regarding "In Defense of the Iraq War", Guest post: Defense attorney discusses the legal basis of Operation Iraqi Freedom, and Correction of Philip Bobbitt's "principal motive" for Operation Iraqi Freedom in The Garments of Court and Palace: Machiavelli and the World that He Made (2013).

Maseh Zarif and James Zumwalt: Here's how to begin "a difficult but necessary debate" versus the 'Forever war' slogans

PREFACE: Maseh Zarif is the Director of External Relations at the Institute for the Study of War and James Zumwalt is a former Navy Explosive Ordnance Disposal officer who served in Operation Iraqi Freedom. Mr. Zarif and Lt. Zumwalt's 21AUG19 The Hill article, 'Forever war' slogans short-circuit the scrutiny required of national security choices, asks, "Americans must aim for a difficult but necessary debate rather than adopting a strategy-by-slogan that promises an easy way out. How can we begin that dialogue?". I answered the question. Mr. Zarif and Lt. Zumwalt didn't respond to my e-mail, so I don't know whether they've read it.

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from: [Eric LC]
to: [Institute for the Study of War], [The Hill editorial department]
date: Sep 3, 2019, 3:39 PM
subject: Maseh Zarif and James Zumwalt: Here's how to begin "a difficult but necessary debate" versus the 'Forever war' slogans

Messrs. Zarif and Zumwalt,

I use the primary source authorities, i.e., the set of controlling law, policy, and precedent and determinative facts that define OIF's justification, at Operation Iraqi Freedom FAQ to lay a proper foundation and provide a study guide for the Iraq issue.

Your 21AUG19 The Hill article, 'Forever war' slogans short-circuit the scrutiny required of national security choices, asks, "Americans must aim for a difficult but necessary debate rather than adopting a strategy-by-slogan that promises an easy way out. How can we begin that dialogue?".

That's easy to answer: The prerequisite for "a difficult but necessary debate" is laying the proper foundation for it with clarification of OIF's justification that corrects for the conjecture, distorted context, and misinformation propagandized by the 'Forever war' sloganeers to obfuscate the Iraq issue.

The "dialogue" must begin with clarification of the Iraq issue at the premise level because the 1990-2011 Iraq intervention was paradigmatic for American leadership of the free world. The national security principles you apparently support fully manifested with Iraq, most of all with the enforcement of UNSCR 1441 per Public Law 107-243 and the UNSCR 1483 peace operations per Public Law 105-338. Therefore, opponents and detractors of American leadership of the free world have stigmatized the Iraq intervention in order to discredit those national security principles, toxify policy choices derived from those national security principles, drive your school of policy into a shrinking defensive crouch, and thereby predominate their school of policy.

Simply said, if the consensus is America was wrong on Iraq, then that means the paradigm of American leadership that manifested with Iraq is wrong. Which means the debate is done, your school of policy is obsoleted, and your advocacy is vestigial. On the other hand, if America was actually right on Iraq, then that means you are right to call for a corrective "dialogue" that discredits the 'Forever war' sloganeers and revitalizes the sort of principled resolute American leadership that manifested with Iraq before President Obama changed course.

As yet, the specious stigmatization of the Iraq intervention has been allowed to freely metastasize in the politics and thereby set the path for the inimical policy decisions criticized in your article. However, the false narrative is readily correctable with the incontrovertible set of law, policy, precedent, and facts that define OIF's justification.

As a layman, I can help model the substantive piece needed to clarify the Iraq issue but not compete the political piece. In the political arena, pundits like you are needed to lay the proper foundation for "a difficult but necessary debate".

I hope this recommendation reaches you. If you have questions about my work, please ask.

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Related: Regarding pundits and David Brooks's "Saving the System" and Expanded list of responses to leaders, pundits, and other media.