Neither Professor Epstein nor Professor Yoo responded to my e-mail, so I don't know whether they've read it.
from: [Eric LC]
to: [Richard Epstein], [John Yoo], [Civitas Outlook]
date: May 18, 2026, 7:29 AM
subject: The apt UN-based international law solution for Iran is the Gulf War ceasefire formula of the Saddam precedent
To Richard Epstein, John Yoo, and the Civitas Institute,
I clarify and relitigate the Iraq issue at Operation Iraqi Freedom FAQ using the law and facts that define the Iraq issue.
I am writing to you in response to Professor Epstein's 29APR26 Civitas Outlook article, Why America, Not Iran, Has the Stronger Legal Position in the Current War, and Professor Yoo's 03APR26 Civitas Outlook article, Another Reason for Regime Change: Iran’s Flagrant Assault on the Rules of War.
Both Civitas Outlook monographs push back against the assertion by international law experts that the American and Israeli military action versus Iran violates United Nations-based international law and fails to meet the 'imminent' standard for anticipatory self-defense. I have little to add to Professor Epstein and Professor Yoo's content beyond reiterating my criticism of Professor Yoo's longstanding attempt to revise the 'imminent' standard for anticipatory self-defense "to take account of weapons of mass destruction, missile technology, and rogue nations" (Yoo).
Rather, I am spotlighting an essential point that Professor Epstein, Professor Yoo, and other international law experts have overlooked in the Iran debate: There is in fact a well-established United Nations-based international law formula to solve rogue actors that break the rules and pose a national security threat other than war, i.e., the Gulf War ceasefire formula of the Saddam precedent, which is apt for the manifold threat of Iran.
I strongly recommend that Professor Epstein, Professor Yoo, and the Civitas Institute make this point to the public.
Any international law-based criticism of the American and Israeli military action versus Iran that does not provide an effective international law-based alternative to solve the manifold threat of Iran is a suspect criticism. That kind of criticism implicitly delegitimizes the international rules-based order and supports President Trump's unilateral action by implying that international law does not solve the threat of rogue actors breaking the rules but protects that threat instead. As national security analyst Brian Dunn argues, "Some say the America-Israel campaign against Iran violates international law. But international law under the UN is supposed to stop threats to peace and order. See Russia. It does not. So we have to do it for ourselves."
Contrary to Mr. Dunn, "international law under the UN" does have an effective formula "to stop threats to peace and order" by rogue actors that break the rules and pose a national security threat other than war, i.e., the Gulf War ceasefire formula of the Saddam precedent.
In the end days of the Cold War, the HW Bush administration prioritized the threat of rogue actors as evidenced by the American invasion of Panama in 1989 that arrested Manuel Noriega. Shortly after that in 1990-1991, at the dawn of the post-Cold War era, President HW Bush explicitly approached the Saddam problem as the baseline precedent for solving the threat of rogue actors in the new international rules-based order. For the conditional suspension of the Gulf War, the comprehensive Gulf War ceasefire mandates and their enforcement under UNSCR 678 were set up in a purposeful way to uphold the international rules-based order by solving the manifold threat of the rules-breaking by Saddam's Iraq, including but not limited to conventional invasion, terrorism, and weapons of mass destruction.
In 1991, the Gulf War ceasefire formula, with its definitional "governing standard of Iraqi compliance" (UNSCR 1441) and enforcement procedure, effectively created a distinct class status and solution in the international law baseline of the post-Cold War international rules-based order for rogue actors like "Saddam and all those who would follow in his footsteps" (President Clinton, 17FEB98) that break the rules and pose a national security threat other than war.
In 1998 and 2003, the United States and United Kingdom conscientiously upheld the international rules-based order by strictly enforcing the Gulf War ceasefire mandates with Operation Desert Fox and Operation Iraqi Freedom pursuant to UNSCR 678. (See the OIF FAQ answer to "Was Operation Iraqi Freedom legal" from an American perspective and Carl Gardner's The invasion of Iraq was lawful from a British perspective.) By procedure, casus belli was Iraq's evidential noncompliance with the Gulf War ceasefire mandates. The "threat [of] Iraq's non-compliance with Council resolutions" (UNSCR 1441) related to aggression (UNSCR 949), weapons of mass destruction and conventional armament (UNSCR 687), terrorism (UNSCR 687), and repression (UNSCR 688), which is analogous to the manifold threat posed by Iran.
The Saddam regime could have switched off the credible threat of regime change that capacitated the international law on Iraq by simply proving the mandated "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441). Instead, "the Iraqis never intended to meet the spirit of the UNSC’s resolutions" (Iraq Survey Group). At Iraq's "final opportunity to comply" (UNSCR 1441), Saddam chose to keep breaking the rules of the Gulf War ceasefire and keep the proscribed threat of Iraq's "continued violations of its obligations" (UNSCR 1441), which caused Operation Iraqi Freedom and the Iraqi regime change pursuant to UNSCR 678.
President Bush and Prime Minister Blair's decision for Operation Iraqi Freedom demonstrably was correct on law and fact. Thus upheld, the United Nations-based international law of the Gulf War ceasefire formula and Saddam precedent should have applied to the Iran problem. Iran poses a manifold threat that is analogous to the threat of the categorically noncompliant Saddam regime, and Iran is similarly intransigent and belligerent.
Today however, the Iraq Syndrome, e.g., the self-neutering "forever war" talking point that now predominates among both Republicans and Democrats, has stigmatized the Gulf War ceasefire formula and Saddam precedent with a prevailing yet demonstrably false narrative propagated by Saddam's accomplices in France, Russia, and China, which has effectively stripped the international rules-based order of the apt international law solution for the Iran problem. Disabling the Gulf War ceasefire formula has devolved that area to the pre-Gulf War Noriega precedent, which effectively restores the Noriega precedent as the principal way to deal with rogue actors that break the rules and pose a national security threat other than war. Consequently, President Trump has applied the Noriega precedent to the Venezuela and Iran problems.
A significant flaw of the older Noriega precedent is that it does not adequately address the international law issue of classification, unlike the Gulf War ceasefire formula and Saddam precedent which purposefully addressed the classification issue. Missing the Gulf War ceasefire formula's classification for rogue actors, the American and Israeli claim versus Iran is not distinguished clearly enough from the Russian claim versus Ukraine or Chinese claim versus Taiwan from an international law perspective. Displacing the Gulf War ceasefire definition, standard, and procedure that distinguished the class status of Saddam's Iraq under international law has enabled Russia and China to characterize the rogue actors that they patronize like Iran, America's actions versus rogue actors, and Russia and China's adverse actions with an inimical reformulation of international law that does not solve the threat of rogue actors but protects that threat instead.
The bottom-line need to restore the Gulf War ceasefire formula and Saddam precedent to solve rogue actors that break the rules and pose a national security threat other than war remains true. Therefore, the constructive response to anyone who criticizes the international law character of the the American and Israeli military action versus Iran is that if they are sincere in their concern, then it is incumbent on them to eradicate the Iraq Syndrome, uphold the Saddam precedent by clarifying the actual justification of Operation Iraqi Freedom, which in fact solved the festering Saddam problem pursuant to UNSCR 678 as purpose-designed, and restore the Gulf War ceasefire formula as the operative United Nations-based international law solution for threats other than war posed by rules-breaking rogue actors.
Anything short of making the public understand that President Bush and Prime Minister Blair properly upheld United Nations-based international law on behalf of the international rules-based order by enforcing the Gulf War ceasefire "governing standard of Iraqi compliance" (UNSCR 1441) with Operation Iraqi Freedom pursuant to UNSCR 678 is tantamount to an implied admission that President Trump is justified—indeed, compelled—to apply the pre-Gulf War Noriega precedent to the Iran problem.
Professor Epstein, Professor Yoo, and the Civitas Institute should vigorously clarify the Iraq issue and relitigate the Iraq Syndrome's false narrative to the public now to replace the degenerative Iraq Syndrome that is corrupting our politics and policy at the premise level with the constructive lessons of Iraq. To help clarify the Iraq issue, I recommend the Operation Iraqi Freedom FAQ base post, which synthesizes the primary law and fact sources into a coherent narrative form. To help relitigate the Iraq Syndrome's false narrative, I recommend my Criticism of Hal Brands's commentary on Iraq in Hand-Off: "Reassessing Bush's Legacy: What the Transition Memoranda Do (and Don't) Reveal", which corrects Professor Brands's specious validation of the Iraq Syndrome.
This task is essential and urgent. It needs your public expert authority to work.
I invite your critical feedback. If you have questions about my work, please ask.
---------------
from: [Eric LC]
to: [Richard Epstein], [John Yoo], [Civitas Outlook]
date: May 18, 2026, 8:51 AM
subject: Add regarding Iran, Congress, and the President Re: The apt UN-based international law solution for Iran is the Gulf War ceasefire formula of the Saddam precedent
To Richard Epstein, John Yoo, and the Civitas Institute,
Add this point about Iran, Congress, and the President to my May 18, 2026 at 7:29 AM e-mail below. It responds to Professor Epstein's [argument] that "no declaration of war is needed to intervene in the midst of hostilities, ... the 1973 War Powers Act is both an unwise and unconstitutional restraint on Presidential Power, even on the blinkered domestic view that this began on February 28, 2026".
True to form, President Bush did not accept that the 1973 War Powers Act was a Constitutional requirement to invade Iraq (or Afghanistan for that matter). Nonetheless, President Bush conscientiously engaged Congress as a wartime president. The practical benefit, perhaps even necessity, of President Bush's choice with Congress on Iraq, and now President Trump's choice with Iran, is about more than upholding Constitutional checks and balances. Excerpt from The Constitutional rule of law for war was skirted by President Clinton, reinforced by President Bush, and degraded by President Obama with highlight added:
As with other of Bush’s hard-won gains as Commander-in-Chief, Obama has undone Bush’s reintegration of the legislative-executive process and, instead, returned to Clinton’s ad hoc approach.
The practical advantage of Clinton’s ad hoc approach is more flexibility to act free of legislative interference. The practical disadvantage of Clinton’s ad hoc approach is less ability to order an effective action should the needs of the mission exceed the resources available to the vested authority of the US President. Indeed, Clinton acted freely but often ineffectively as Commander-in-Chief, whereas Congress often interfered with Bush’s foreign affairs to detrimental effect, but also provided the resources when the needs of the mission exceeded the resources available to the US President. Obama has followed Clinton’s lead by acting more freely but also more ineffectively compared to Bush.
. . .
I'm not talking about episodic partisan climate as far as Bush's legislative-executive approach as Commander-in-Chief after 9/11. He set a baseline for how to do the CinC job in the 9/11 era. Although Clinton's pre-9/11 ad hoc approach would have been easier, quicker, and - I argue - more sensible for a President at war, Bush understood that reintegrating the legislative-executive process as CinC was a healthier approach for a legal-rational system for the long difficult challenge we entered on 9/11.
The practical advantage of Clinton’s ad hoc approach is more flexibility to act free of legislative interference. The practical disadvantage of Clinton’s ad hoc approach is less ability to order an effective action should the needs of the mission exceed the resources available to the vested authority of the US President. Indeed, Clinton acted freely but often ineffectively as Commander-in-Chief, whereas Congress often interfered with Bush’s foreign affairs to detrimental effect, but also provided the resources when the needs of the mission exceeded the resources available to the US President. Obama has followed Clinton’s lead by acting more freely but also more ineffectively compared to Bush.
. . .
I'm not talking about episodic partisan climate as far as Bush's legislative-executive approach as Commander-in-Chief after 9/11. He set a baseline for how to do the CinC job in the 9/11 era. Although Clinton's pre-9/11 ad hoc approach would have been easier, quicker, and - I argue - more sensible for a President at war, Bush understood that reintegrating the legislative-executive process as CinC was a healthier approach for a legal-rational system for the long difficult challenge we entered on 9/11.
But for President Trump to constructively engage with Congress on Iran to the legislative-executive gold standard set by Presidents HW Bush, Clinton, and Bush and Congress with Iraq requires the President to clarify the Iraq issue and relitigate the Iraq Syndrome's false narrative, including and especially the self-neutering 'forever war' or 'endless war' talking point, at the premise level. Excerpt from https://www.murkowski.senate.gov/press/release/murkowski-addresses-iran-conflict-on-senate-floor with highlight added:
We now find our nation at war with Iran, and I'm not here to relitigate how we got into this conflict. The fact of the matter is we're in it. But we owe it to our service members and the Americans who are feeling the economic impacts of this war, we owe them a clear, a thoughtful, a rational plan for what comes next.
Some two months later, the regime retains the ability to strike across the region. They continue to disrupt shipping through the Straits of Hormuz. And while the administration may point to ongoing negotiations, events on the ground and the rhetoric coming out of Tehran tell a different story.
But if the US steps back abruptly and prematurely, we almost certainly leave their critical capabilities intact. We risk a new set of leaders who are even more radicalized against us. And we all but invite retaliation against American military forces, our allies, and the American people.
And those are not risks that I'm willing to take. But the answer is not a blank check for another endless war. Nor is it open ended authority for the administration with no guardrails, no oversight from Congress and no clearly defined mission.
The answer, I believe, relies on careful, deliberate use of congressional power. And this is where I think we're falling short. Because we are approaching the 60-day mark under the War Powers Act.
So, what comes next? The Constitution is clear on this point, Congress holds the power to declare war and authorize the use of military force. And yes, the President must have flexibility to respond to emergencies and imminent threats, and he does.
But those are not ongoing military campaigns like we find ourselves currently mired in. In such conflicts, the President and the administration must explicitly state their goals, their plans, and the metrics for success.
And if we don't press them to define those parameters, we may risk repeating history. One of the clearest lessons from the War on Terror is that the failure to think beyond the initial phase of military operations can lock us into a conflict that becomes more lengthy, more deadly, more costly and more difficult to unwind.
Some two months later, the regime retains the ability to strike across the region. They continue to disrupt shipping through the Straits of Hormuz. And while the administration may point to ongoing negotiations, events on the ground and the rhetoric coming out of Tehran tell a different story.
But if the US steps back abruptly and prematurely, we almost certainly leave their critical capabilities intact. We risk a new set of leaders who are even more radicalized against us. And we all but invite retaliation against American military forces, our allies, and the American people.
And those are not risks that I'm willing to take. But the answer is not a blank check for another endless war. Nor is it open ended authority for the administration with no guardrails, no oversight from Congress and no clearly defined mission.
The answer, I believe, relies on careful, deliberate use of congressional power. And this is where I think we're falling short. Because we are approaching the 60-day mark under the War Powers Act.
So, what comes next? The Constitution is clear on this point, Congress holds the power to declare war and authorize the use of military force. And yes, the President must have flexibility to respond to emergencies and imminent threats, and he does.
But those are not ongoing military campaigns like we find ourselves currently mired in. In such conflicts, the President and the administration must explicitly state their goals, their plans, and the metrics for success.
And if we don't press them to define those parameters, we may risk repeating history. One of the clearest lessons from the War on Terror is that the failure to think beyond the initial phase of military operations can lock us into a conflict that becomes more lengthy, more deadly, more costly and more difficult to unwind.
Contrary to Senator Murkowski's misconception, the US did plan conscientiously for the post-war stage with Iraq. The problem is that pre-war analysts severely underestimated the Saddam regime's terrorism, which preconfigured the Saddamist terrorist insurgency that caught the occupation by surprise and blew up the initial post-war plan. Yet setback and adjustment is a normal victory pattern in any kind of real competition, let alone maximal contests of war and peace. Like they did in other historical contests in places where American soldiers continue to serve many decades later, the American soldiers in Iraq adjusted to setbacks inflicted by the enemy in order to win. In order for Congress to work with the President constructively on Iran, Senator Murkowski and her fellow legislators need to understand that the very aspect of "the initial phase of military operations" in Iraq that Senator Murkowski cautions against was a vital corrective for America's real competitive capability that needs to be embraced.
It was in fact the anti-competitive radical deviation made by President Obama in service to the Iraq Syndrome that was the pivotal blunder that set off the compounding problems involving Iran that made the contest "more lengthy, more deadly, more costly and more difficult to unwind". See the OIF FAQ epilogue answer to "Was Operation Iraqi Freedom a strategic blunder or a strategic victory".
In other words, Senator Murkowski and her fellow legislators need to learn that her Iraq Syndrome-based concept of the Iraq issue is falsely based and the opposite of what it needs to be for America to deal as effectively with Iran as we dealt with Saddam's Iraq in the analogous crisis. It is incumbent on President Trump to clarify the Iraq issue and relitigate the Iraq Syndrome to Congress and the American people. Excerpt from The Forward Party should reconceive the Iran issue with the premise that we were right on Iraq, which is the truth with highlight added:
I am writing to you in response to the Forward Party's 05MAR26 e-mail, "War, the Constitution, and Why Congress Must Do Its Job", and 03MAR26 Official Statement on Operation Epic Fury.
The "partisan battles" over Iran reinforce that the pervasive Iraq Syndrome, such as the misguiding "forever war" talking point, has become the operative political and policy context for today's Republicans and Democrats. As such, it is essential for the Forward Party's mission and your challenge to "the two major parties" that you establish the operative context that Operation Iraqi Freedom was justified and a war of necessity according to Richard Haass's taxonomy. Which is the demonstrable truth. In contrast, the Iraq Syndrome is based on a demonstrably false narrative.
The Iraq Syndrome is degenerative and toxic for the Forward Party's advocacy of "America can maintain a strong national defense and be a force for good in the world while honoring constitutional balance. A presidency that respects the law, matched with a Congress willing to act as a co-equal branch of government, strengthens our country, protects our troops, and upholds the rule of law that defines us as a nation." Whereas the 1990 to 2011 Iraq intervention, including OIF, embodies the elements of the Forward Party's platform.
At the dawn of the post-Cold War era, the American-led enforcement of UNSCR 678 was purposely designed as the baseline paradigm for the rules-based post-Cold War liberal international order, particularly to resolve rogue actors like Iran and Saddam's Iraq by upholding the aspirational rules of the reorganized international community. Iraq's mandated compliance with the comprehensive Gulf War ceasefire mandates was the primary test case for "pax Americana". With that essential evaluation of the Iraq intervention in mind, the HW Bush, Clinton, and Bush administrations and Congress conscientiously worked together to enforce UNSCR 678 and related UN resolutions per Public Law 102-190 and related US law. The Iraq intervention set the gold standard for "a president who leads, a Congress that does its job, and a political system that rewards courage instead of silence" and "decisions about war would be debated openly and decided collectively by the representatives of the American people".
However, as the degenerative Iraq Syndrome has pervaded our politics and policy, among its harmful effects, "Presidents of both parties have increasingly used military force without clear authorization from Congress. Meanwhile, Congress has too often avoided the responsibility the Constitution assigns to it." President Trump's Constitutionally messy use of force with Iran follows the precedent of President Obama's Constitutionally messy use of force with Libya. Both messy actions follow the Iraq Syndrome. In order to correct course, to apply a computer analogy, the American 'system' needs to 'revert' to a 'previous restore point' from a healthy 'state' prior to the Iraq Syndrome: On the Iran issue, the Forward Party should hold the President and Congress accountable to the gold standard of Iraq.
The "partisan battles" over Iran reinforce that the pervasive Iraq Syndrome, such as the misguiding "forever war" talking point, has become the operative political and policy context for today's Republicans and Democrats. As such, it is essential for the Forward Party's mission and your challenge to "the two major parties" that you establish the operative context that Operation Iraqi Freedom was justified and a war of necessity according to Richard Haass's taxonomy. Which is the demonstrable truth. In contrast, the Iraq Syndrome is based on a demonstrably false narrative.
The Iraq Syndrome is degenerative and toxic for the Forward Party's advocacy of "America can maintain a strong national defense and be a force for good in the world while honoring constitutional balance. A presidency that respects the law, matched with a Congress willing to act as a co-equal branch of government, strengthens our country, protects our troops, and upholds the rule of law that defines us as a nation." Whereas the 1990 to 2011 Iraq intervention, including OIF, embodies the elements of the Forward Party's platform.
At the dawn of the post-Cold War era, the American-led enforcement of UNSCR 678 was purposely designed as the baseline paradigm for the rules-based post-Cold War liberal international order, particularly to resolve rogue actors like Iran and Saddam's Iraq by upholding the aspirational rules of the reorganized international community. Iraq's mandated compliance with the comprehensive Gulf War ceasefire mandates was the primary test case for "pax Americana". With that essential evaluation of the Iraq intervention in mind, the HW Bush, Clinton, and Bush administrations and Congress conscientiously worked together to enforce UNSCR 678 and related UN resolutions per Public Law 102-190 and related US law. The Iraq intervention set the gold standard for "a president who leads, a Congress that does its job, and a political system that rewards courage instead of silence" and "decisions about war would be debated openly and decided collectively by the representatives of the American people".
However, as the degenerative Iraq Syndrome has pervaded our politics and policy, among its harmful effects, "Presidents of both parties have increasingly used military force without clear authorization from Congress. Meanwhile, Congress has too often avoided the responsibility the Constitution assigns to it." President Trump's Constitutionally messy use of force with Iran follows the precedent of President Obama's Constitutionally messy use of force with Libya. Both messy actions follow the Iraq Syndrome. In order to correct course, to apply a computer analogy, the American 'system' needs to 'revert' to a 'previous restore point' from a healthy 'state' prior to the Iraq Syndrome: On the Iran issue, the Forward Party should hold the President and Congress accountable to the gold standard of Iraq.
Again, I invite your critical feedback. If you have questions about my work, please ask.
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