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;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.
... (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.
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.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).
... 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.
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.
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).
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