Regime Change in Iraq from Clinton to Bush

PREFACE: Below is my National Security Law seminar term paper, which was my final assignment in law school. The footnotes from my term paper are incorporated as endnotes. My paper addresses the legality of Operation Iraqi Freedom under American law only, specifically the case and precedent established by President Clinton and carried forward by President Bush. My paper does not address the international legal controversy (which I discuss here at A2) — i.e., the episodic view that demanded specific UN authorization for each US military action and erased (for some critics) Iraq's presumption of guilt, versus the American progressive view that a priori and de facto authority for the US-led military enforcement of the UNSC resolutions carried over the legal authority of the original Gulf War authorization to the enforcement of the Gulf War ceasefire UNSC resolutions.

Go here for the companion piece to this post, my explanation of the public controversy over Operation Iraqi Freedom. Go here for a table of sources, including this academic paper summarizing the continuity of counter-terrorism policy from Clinton to Bush. Go here for my retrospective on the 10th anniversary of Operation Iraqi Freedom. Go here for my FAQ-style explanation of the law and policy, fact basis of Operation Iraqi Freedom.

Enjoy:

From: [Eric LC]
To: [my National Security Law professor]
Re: Regime Change in Iraq from Clinton to Bush
Date: May 11, 2012

“We will never lower our heads as long as we live, even if we have to destroy everybody."
-- Saddam Husayn [sic], January 1991 ¹

PROLOGUE:
President Bush erred by deviating from President Clinton’s carefully hewn strategy on Iraq. Substantively, Bush’s Iraq policy was grounded in the same legal bases for military action that had been developed and utilized by Clinton. Indeed, the circumstances within Iraq that had compelled President Clinton to green-light Operation Desert Fox in December 1998 were not substantially different than the circumstances that compelled President Bush to green-light Operation Iraqi Freedom in March 2003. Iraq defied the ultimatums of both American presidents in the same manner, thus twice failing its “final chance” to comply with multiple United Nations Security Council (UNSC) resolutions with verification by UNSCOM inspectors in 1998 and UNMOVIC inspectors in 2002-03.

The Duelfer report findings of 2004, largely ignored within a toxic political discourse, corroborated President Clinton's contentions that Saddam Hussein intended to rebuild his proscribed weapons programs once the sanctions had been defeated, retained his long-term interest in a nuclear program in order to make Iraq a great regional power and to protect Iraq’s interests from foreign interference, and had continued to develop long-range delivery systems. ²

However, President Bush, while relying on the same legal framework for military action used by President Clinton, presented to the public a different case for military action against Iraq than President Clinton had used in 1998. President Clinton, notwithstanding his failure to resolve the Iraq problem, deserves credit for resting his public case for military action on Iraq’s failure to meet its burden of proof, irrespective of Iraq’s store of weaponry, thus ensuring his Iraq policy matched the legal framework of the UNSC resolutions and the matching Congressional acts. Under President Clinton, the burden of proof stayed with the intended and proper party: Iraq.

The foundational premises of the UNSC resolutions were Iraq’s unconditional cooperation and the burden of proof belonged solely to Iraq — not to the United Nations, nor to the United States and her allies. Iraq’s regular failure to cooperate unconditionally was, by itself, an ongoing material breach of the UNSC resolutions. President Bush, however, shifted the burden of proof in the political discourse to the United States with his warnings about existing stockpiles and active programs in Iraq when he should have followed President Clinton’s lead and rested his case for military action on Iraq’s demonstrated noncompliance with the UNSC resolutions. ³

President Bush may have believed the argument was politically necessary to rally the international community (for example, since the late 1990s, UNSC permanent members France, Russia, and China, possibly influenced by the Oil-for-Food scandal, had protested the U.S.-led enforcement of the UNSC resolutions) ⁴, and he may have sincerely believed Iraq had used the unsupervised years in between inspections to rebuild its proscribed weapons programs, but Bush’s decision was legally imprudent.

In the political discourse, President Bush’s claim of affirmative knowledge of stockpiles and active programs allowed critics to relieve Iraq’s burden to prove compliance and shifted the burden onto the United States to prove the existence of those stockpiles and active programs in Iraq.

If President Bush had simply followed President Clinton's case for military action and added the weight of the broad mandate provided by the Authorization of the Use of Military Forces of September 25, 2001 (Public Law 107-40), Bush could have achieved the same result without losing the essential thread of the legal case for military action. ⁵ President Bush’s historic error in judgment notwithstanding, the legal tripwire to start Operation Iraqi Freedom remained unchanged from the trigger for President Clinton to order Operation Desert Fox: Iraq’s material breach of the UNSC resolutions on multiple fronts.

CLINTON:
Excerpts from the Statement by the President from the Oval Office, December 16, 1998:

I concluded then that the right thing to do was to use restraint and give Saddam one last chance to prove his willingness to cooperate. I made it very clear at that time what "unconditional cooperation" meant, based on existing U.N. resolutions and Iraq's own commitments.
. . .
Now, over the past three weeks, the U.N. weapons inspectors have carried out their plan for testing Iraq's cooperation. The testing period ended this weekend, and last night, UNSCOM's Chairman, Richard Butler, reported the results to U.N. Secretary General Annan. The conclusions are stark, sobering and profoundly disturbing. In four out of the five categories set forth, Iraq has failed to cooperate.
. . .
So Iraq has abused its final chance.
. . .
[T]he inspectors are saying that, even if they could stay in Iraq, their work would be a sham. Saddam's deception has defeated their effectiveness.
. . .
This situation presents a clear and present danger to the stability of the Persian Gulf and the safety of people everywhere. The international community gave Saddam one last chance to resume cooperation with the weapons inspectors. Saddam has failed to seize the chance.
. . .
We acted today because, in the judgment of my military advisors, a swift response would provide the most surprise and the least opportunity for Saddam to prepare. If we had delayed for even a matter of days from Chairman Butler's report, we would have given Saddam more time to disperse forces and protect his weapons.
. . .
[W]e must be prepared to use force again if Saddam takes threatening actions, such as trying to reconstitute his weapons of mass destruction or their delivery systems, threatening his neighbors, challenging allied aircraft over Iraq, or moving against his own Kurdish citizens. The credible threat to use force and, when necessary, the actual use of force, is the surest way to contain Saddam's weapons of mass destruction program, curtail his aggression and prevent another Gulf War.
. . .
The hard fact is that so long as Saddam remains in power, he threatens the well-being of his people, the peace of his region, the security of the world. The best way to end that threat once and for all is with the new Iraqi government, a government ready to live in peace with its neighbors, a government that respects the rights of its people.
. . .
Heavy as they are, the costs of action must be weighed against the price of inaction. If Saddam defies the world and we fail to respond, we will face a far greater threat in the future. Saddam will strike again at his neighbors; he will make war on his own people. And mark my words, he will develop weapons of mass destruction. He will deploy them, and he will use them.
. . .
In the century we're leaving, America has often made the difference between chaos and community; fear and hope. Now, in a new century, we'll have a remarkable opportunity to shape a future more peaceful than the past -- but only if we stand strong against the enemies of peace. Tonight, the United States is doing just that. ⁶

President Clinton established that the failure of Iraq to cooperate with the weapons inspectors and meet its burden of proof, irrespective of Iraq’s actual possession of proscribed weapons, compelled military action due to “a clear and present danger to the stability of the Persian Gulf and the safety of people everywhere.” Moreover, President Clinton defined the continued existence of Saddam Hussein’s regime, irrespective of its compliance with the UNSC resolutions or actual possession of proscribed weapons, as a humanitarian crisis and collective security threat.

President Clinton’s announcement of Operation Desert Fox from the Oval Office is the best statement of authority for the deployment of the nation’s strongest military option against Iraq in December 1998, short of introducing ground forces or deploying a nuclear weapon, because Clinton did not seek additional authorization from Congress or the UNSC. His view was that the legal authority to conduct military action against Iraq was fully vested in his office.

In a comprehensive letter informing Congress of the situation in Iraq on November 5, 1998, President Clinton clarified both his legal authority and the limit of his duty to Congress with the first sentence following the salutation: “Consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) and as part of my effort to keep the Congress fully informed, I am reporting on the status of efforts to obtain Iraq's compliance with the resolutions adopted by the United Nations Security Council (UNSC).” ⁷

P.L. 102-1, passed on January 12, 1991, stated, “The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678.” ⁸

UNSC Resolution 678, adopted on November 29, 1990, stated, “[a]cting under Chapter VII of the Charter . . . [a]uthorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.” ⁹

Finally, Article 42 of Chapter VII of the United Nations Charter states, “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” ¹⁰

In other words, President Clinton recognized that the legal authority to deploy the United States military to enforce the UNSC resolutions on Iraq had been bestowed on his office by statute before he had been elected the President of the United States.

President Clinton’s November 5 letter and, indeed, his December 16 speech from the Oval Office seemed deliberately calculated to convey in wording and imagery that the authority for enforcing the UNSC resolutions and confronting Iraq belonged entirely to the office of the President. The letter to Congress merely fulfilled the reporting requirement in P.L. 102-1. No additional permission was requested or needed by the President to order Operation Desert Fox’s extensive bombing of Iraq.

Unfortunately, Operation Desert Fox’s exclusive reliance on airpower, the penultimate enforcement measure before deploying ground forces, utterly failed to convince Saddam Hussein to acquiesce to the UNSC resolutions or cause permanent damage to Iraq’s military infrastructure. ¹¹

According to a New York Times report from August 13, 1999, “the Iraqis have proved more resilient than expected. They have quickly repaired damage done to air-defense weapons, forcing the Americans to bomb some targets over and over. They have even rebuilt some of the factories, barracks and other sites destroyed in December's raids, including buildings at the Al Taji missile complex, one of the critical targets, according to Defense officials.” ¹²

Perhaps sensing the limit of American resolve, Saddam Hussein’s belligerence increased after Operation Desert Fox. According to a Congressional issue brief on October 16, 2002, “[o]fficial Iraqi media reported on January 3, 1999 that President Saddam Hussein condemned the no-fly zones and said his people would resist them with “bravery and courage.” The Iraqi President followed up by offering a $14,000 bounty to any unit that shot down an allied plane and an additional $2,800 reward for capturing an allied pilot.” ¹³

Since the no-fly zones had been established in 1991 to enforce UNSC resolution 688, which demanded an immediate end to the repression of the Iraqi civilian population, Iraq had not stopped firing on the allied aircraft patrolling the no-fly zones. However, as the threat to allied aircraft increased after Operation Desert Fox, including radar locks and surface-to-air missiles, the allied counter-fire also increased against Iraqi anti-aircraft defenses. In response, the allied rules of engagement were relaxed to include all Iraqi anti-aircraft defenses, not only the specific unit that had fired at an allied plane. Saddam Hussein took advantage of the heightened allied self-defense measures by co-locating his anti-aircraft systems with civilian populations in order to produce casualties for international propaganda use. ¹⁴

President Clinton continued bombing in Iraq after Operation Desert Fox in order to enforce the no-fly zone. The airpower operation in Iraq carried over into the Bush administration. ¹⁵ In the waning months of the Clinton administration, it seemed that the United States had played its trump card, failed, and the endgame favored Saddam Hussein’s brinkmanship.

The New York Times report of August 13, 1999 captured the Clinton administration’s frustration over the drifting and ineffective, yet also destructive, costly in funding and military commitment, and vilified enforcement mission in Iraq, and its concern over the greater danger that would result from failing to contain Saddam Hussein:

Of greater concern is Iraq's ability to rebuild its nuclear, chemical and biological weapons, programs that Saddam pledged to halt as part of the cease-fire that ended the Persian Gulf war in 1991. In their letter, the lawmakers said there was "considerable evidence" that Iraq continued to pursue those weapons, though neither they nor their aides elaborated. The administration and Pentagon officials maintain there is no evidence of that, but without international inspections, some acknowledged, there is little to stop Saddam's government from doing so.
. . .
"I've very concerned," Energy Secretary Bill Richardson, who served as the chief American representative at the United Nations during last year's confrontation, told reporters on Wednesday. "My experience with the Iraqis is if you give them an inch, they take a mile."
With the increase in tempo, the fighting over the zones is costing upwards of $1 billion a year, though Pentagon officials say it is difficult to fix an exact cost. More than 200 aircraft, 19 warships and 22,000 American troops are devoted to the effort.
The officials acknowledge that the strikes alone will not topple Saddam, even though the White House has openly called for the overthrow of his government and promised nominal support to opposition figures. That has led to frustration.
"He has been kept in check," one Defense official said. "But the question is: Have you met any of your long-term goals? I don't think so."
A senior administration official said that until a change in government occurs, containment was the only viable policy at this time, politically and diplomatically.
"Neither this administration, nor this Congress, nor any other country is prepared to take the measures that would be truly necessary to ensure there was a change of regime," the official said. "If you want to go beyond containment, you have to put your money where your mouth is. And that means ground troops." ¹⁶

The Clinton White House had more than “openly called for the overthrow of [Saddam Hussein’s] government.” Under President Clinton, the objective of regime change in Iraq had become American law.

On October 31, 1998, President Clinton signed Public Law 105-338, known as the Iraq Liberation Act. The purpose of the Iraq Liberation Act was to “establish a program to support a transition to democracy in Iraq.” The law also stated that the “sense of the Congress regarding United States policy toward Iraq” is “[i]t should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.” ¹⁷

On the same day President Clinton signed the Iraq Liberation Act into law, he issued a statement expanding upon the new legal mandate for regime change in Iraq:

Let me be clear on what the U.S. objectives are:
The United States wants Iraq to rejoin the family of nations as a freedom-loving and lawabiding member. This is in our interest and that of our allies within the region.
The United States favors an Iraq that offers its people freedom at home. I categorically reject arguments that this is unattainable due to Iraq's history or its ethnic or sectarian makeup. Iraqis deserve and desire freedom like everyone else.
The United States looks forward to a democratically supported regime that would permit us to enter into a dialogue leading to the reintegration of Iraq into normal international life.
My Administration has pursued, and will continue to pursue, these objectives through active application of all relevant United Nations Security Council resolutions. The evidence is overwhelming that such changes will not happen under the current Iraq leadership. ¹⁸

Furthermore, although the Iraq Liberation Act stated, “[n]othing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces,” also embedded in the law was the finding that “[o]n August 14, 1998, President Clinton signed Public Law 105-235, which declared that `the Government of Iraq is in material and unacceptable breach of its international obligations' and urged the President `to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations.'.” ¹⁹

P.L. 105-235, called Iraqi Breach of International Obligations, detailed the long history of Iraq’s resistance to the UNSC resolutions and reinforced the Congressional mandate for the President to bring Iraq into compliance. ²⁰ Where the UNSC had stopped formally declaring Iraq in material breach in 1993 despite continued provocations by Iraq, Congress set the judgment condition necessary for the President to deploy the military against Iraq. ²¹ While the law did not explicitly define “appropriate action” as military action, “relevant laws” included P.L. 102-1, which authorized use of the military to bring about Iraq’s compliance with international obligations.

President Bush relied on the Iraq Liberation Act to form his Iraq policy.

BUSH:
President Bush took office in January 2001 and inherited from President Clinton an unresolved Iraq problem in which Saddam Hussein’s noncompliance presented a clear and present danger, sanctions were failing, and the United States was bombing Iraq. The choice President Clinton passed onto President Bush was bearing indefinitely the onerous burden of a provocative sanctions and containment regimen that was viewed as eroding, or ending the costly mission and risking the greater danger of a triumphant Saddam Hussein. President Bush also inherited his predecessor’s unwillingness to move beyond bombing and containment in order to press Iraq with the only remaining option to escalate enforcement: the deployment of ground troops in Iraq. ²²

Meanwhile, Al Qaeda was using the American mission in Iraq as a founding reason and rallying cry. ²³

The attacks of 9/11 caused a seismic shift in American foreign policy in the Middle East and forced President Bush to assess America’s most threatening engagement in the region, Iraq.

While Saddam Hussein was not linked to the 9/11 attacks, it had been established during the Clinton administration that Saddam Hussein’s regime constituted a clear and present danger, U.S. and Iraqi military forces were engaged in hostile military action, Iraq had relations with terrorist groups if not Al Qaeda, an assassination attempt on former President Bush in 1993 had demonstrated Iraq’s willingness to use its own capability to unconventionally attack the U.S., and the material breach of the UNSC resolutions amounted to Iraq’s implied intent to use nuclear, biological, or chemical weapons. ²⁴

At the point of Operation Desert Fox in December 1998, President Clinton had established the legal conditions, reasons, and precedent to use military action in Iraq, and made into law the objective of regime change in Iraq. The attacks of 9/11 only supplied the political will for President Bush to finally resolve America’s intractable Iraq problem. President Bush’s foreign-policy outlook after 9/11 can be summarized as follows:

Among the momentous effects of Al-Qaeda's violent strikes against the United States on September 11, 2001, was a re-orientation of American policy toward the Middle East. The new paradigm adopted in Washington viewed much of the world as being divided into opponents versus supporters of terrorism. Furthermore, the roots of terrorism were ascribed to Mideast regimes that caused social and economic failures while pursuing the interests of small groups of ruling elites. ²⁵

At the Air Force Academy commencement in 2004, President Bush described the liberal underpinnings of the War on Terror:

For decades, free nations tolerated oppression in the Middle East for the sake of stability. In practice, this approach brought little stability, and much oppression. So I have changed this policy. In the short-term, we will work with every government in the Middle East dedicated to destroying the terrorist networks. In the longer-term, we will expect a higher standard of reform and democracy from our friends in the region. Democracy and reform will make those nations stronger and more stable, and make the world more secure by undermining terrorism at it source. Democratic institutions in the Middle East will not grow overnight; in America, they grew over generations. Yet the nations of the Middle East will find, as we have found, the only path to true progress is the path of freedom and justice and democracy. ²⁶

President Bush chose to seek new authorizations on Iraq from Congress and the UNSC rather than rely on the UNSC resolutions and American laws used by President Clinton. UNSC resolution 1441 and Public Law 107-243 summarized and restated the existing resolutions and policies on Iraq with firmer language and provided Iraq with a (second) final chance to correct its material breach of multiple UNSC resolutions. ²⁷

UNSC resolution 1441 and P.L. 107-243 established Iraq’s guilt of material breach and, as with previous resolutions and statutes, placed the burden on Iraq to prove its rehabilitation. Iraq’s rehabilitation depended on unconditionally, completely, and immediately cooperating with the weapons inspectors and fulfilling all the obligations imposed by the UNSC resolutions, including humanitarian conditions. Once again, the legal burden was not placed on the United Nations nor the United States to prove Iraq possessed stockpiles or active programs.

In December 1998, President Clinton had given Iraq three weeks to forestall Operation Desert Fox in its first “final chance.” President Bush’s second final chance for Iraq stretched to four months before he ordered Operation Iraqi Freedom. From November 22, 2002 until March 18, 2003, UNMOVIC provided ample opportunity for Iraq to rehabilitate itself under the UNSC resolutions and Iraq failed again to comply. ²⁸ The reasons President Clinton gave for Operation Desert Fox in 1998 applied equally well to Operation Iraqi Freedom in 2003. ²⁹

In a July 22, 2003 interview on CNN, President Clinton cited his presidential experience with Iraq to justify President Bush’s decisions on Iraq:

Let me tell you what I know. When I left office, there was a substantial amount of biological and chemical material unaccounted for. That is, at the end of the first Gulf War, we knew what he had. We knew what was destroyed in all the inspection processes and that was a lot. And then we bombed with the British for four days in 1998. We might have gotten it all; we might have gotten half of it; we might have gotten none of it. But we didn't know. So I thought it was prudent for the president to go to the U.N. and for the U.N. to say you got to let these inspectors in, and this time if you don't cooperate the penalty could be regime change, not just continued sanctions. I mean, we're all more sensitive to any possible stocks of chemical and biological weapons.
. . .
I think the main thing I want to say to you is, people can quarrel with whether we should have more troops in Afghanistan or internationalize Iraq or whatever, but it is incontestable that on the day I left office, there were unaccounted for stocks of biological and chemical weapons. We might have destroyed them in '98. We tried to, but we sure as heck didn't know it because we never got to go back in there. And what I think -- again, I would say the most important thing is we should focus on what's the best way to build Iraq as a democracy? How is the president going to do that and deal with continuing problems in Afghanistan and North Korea? We should be pulling for America on this. We should be pulling for the people of Iraq. ³⁰

CARTER DOCTRINE and REAGAN COROLLARY:
By taking military action in Iraq, President Clinton and President Bush moved to honor not only international obligations but also defend a longstanding principal national security interest. Before the Clinton and Bush administrations deployed the military in Iraq, the need to maintain security and stability in the vital oil-producing region had compelled Presidents Carter, Reagan, and Bush (the father) to take an active role in Middle Eastern affairs. As President Carter stated in his 1980 State of the Union Address, “Let our position be absolutely clear: An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.” ³¹

President Reagan expanded President Carter’s security guarantee from repelling outside forces to also include internal regional stability when Reagan extended a security guarantee to Saudi Arabia due to concern over the Iran-Iraq war. The Reagan corollary to the Carter doctrine paved the way for President Bush to intervene when Iraq occupied Kuwait and threatened Saudi Arabia in 1990. ³²

Some Constitutional scholars, such as Professor Frank Askin of Rutgers School of Law-Newark, have argued that P.L. 107-243 did not rise to a declaration of war by Congress or that Congress improperly delegated the power to declare war to President Bush. ³³

Unless the Executive's foreign powers and obligations are rolled back to the 19th century and the need and form of a legislative declaration of war are far more narrowly defined, any attempt to have Operation Iraqi Freedom declared unconstitutional has little hope of succeeding. Under President Clinton, Congress had made clear the President was authorized to use military action to bring Iraq into compliance with the UNSC resolutions. Operation Iraqi Freedom was well grounded in the national interest, multiple statutes, as well as modern foreign-policy precedent. For example, P.L. 107-243 and UNSC resolution 1441 included strong humanitarian grounds. In 1999, while still bombing Iraq in the wake of Operation Desert Fox, President Clinton used humanitarian grounds to bypass Congress and the UNSC altogether when he deployed airpower and ground forces against Serbia. ³⁴

CLOSING THOUGHTS:
When the cease-fire ended the 1991 Gulf War, the United Nations mission in Iraq was designed to be a strictly enforced and quickly achieved disarmament mission. ³⁵ It was not intended to be an indefinitely prolonged sanctions and containment regimen that cast the U.N. and U.S. as villains, severely undermined American credibility around the world and in a region with a vital national security interest, and made the U.S. complicit with Saddam Hussein’s oppression of the Iraqi people. ³⁶

The attacks of 9/11 forced the United States to evaluate its relationships with the Muslim world, with the Iraq problem at the top of the list. President Bush faced the same three options on Iraq faced by President Clinton:

A. Head-line and maintain indefinitely the provocative, harmful, and failing sanctions and containment regimen.
B. End the mission and release Saddam from constraint, in power and triumphant.
C. Offer Saddam Hussein a final chance to comply with the UNSC resolutions, and if Iraq triggered the ultimate enforcement measure, then move ahead with regime change.

President Bush started his presidency where President Clinton had ended his presidency: following Option-A. However, President Clinton had set the stage for Option-C by deploying the military in Iraq (and the Balkans) without applying for additional authorization, making the objective of regime change a legal mandate, and moving the United States to the brink of the ultimate enforcement measure in Iraq.

In 2002-03, with the political will to resolve the Iraq problem thrust upon him by the 9/11 attacks, President Bush followed President Clinton by offering Iraq its final chance to comply with the UNSC resolutions, thus placing the United States on the path to finally conclude the long, damaging American mission in Iraq.

“In the century we're leaving, America has often made the difference between chaos and community; fear and hope. Now, in a new century, we'll have a remarkable opportunity to shape a future more peaceful than the past -- but only if we stand strong against the enemies of peace. Tonight, the United States is doing just that.”
-- President William J. Clinton announcing Operation Desert Fox, December 16, 1998 ³⁷

ENDNOTES:
1 Regime Strategic Intent, https://www.cia.gov/library/reports/general-reports-1/iraq_wmd_2004/chap1.html (last visited May 8, 2012).
2 Id.
3 President Bush Outlines Iraqi Threat, http://georgewbush-whitehouse.archives.gov/news/releases/2002/10/20021007-8.html (last visited May 8, 2012). (In other respects, the speech echoes President Clinton’s positions on Iraq.)
4 Iraq Oil for Food Scandal, http://www.cfr.org/un/iraq-oil-food-scandal/p7631 (last visited May 11, 2012).
5 Public Law 107-40, Authorization of Use of United States Armed Forces, http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf; also see John Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, http://www.justice.gov/olc/warpowers925.htm (both websites last visited May 8, 2012).
6 President Clinton’s Statement on Air Strike Against Iraq, http://clinton4.nara.gov/WH/New/html/19981216-3611.html (last visited May 8. 2012).
7 Clinton Statement on Iraqi Compliance, http://www.mtholyoke.edu/acad/intrel/iraqcomp.htm (last visited May 8, 2012).
8 Public Law 102-1, Authorization of Use of Military Force Against Iraq Resolution, http://thomas.loc.gov/cgi-bin/query/D?c102:4:./temp/~c102QSSBKi:: (last visited May 8, 2012).
9 Resolution 678, http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/28/IMG/NR057528.pdf?OpenElement (last visited May 8, 2012).
10 CHAPTER VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, http://www.un.org/en/documents/charter/chapter7.shtml (last visited May 8, 2012).
11 Recall military historian T.R. Fehrenbach’s famous quote, “You may fly over a land forever; you may bomb it, atomize it, pulverize it and wipe it clean of life—but if you desire to defend it, protect it and keep it for civilization, you must do this on the ground, the way the Roman legions did, by putting your young men in the mud.”
12 Steven Lee Myers, With Little Notice, U.S. Planes Have Been Striking Iraq All Year, New York Times on the web, August 13, 1999, http://www.nytimes.com/library/world/mideast/081399iraq-conflict.html (last visited May 8, 2012).
13 Issue Brief for Congress: Iraq: Former and Recent Military Confrontations with the United States, http://fpc.state.gov/documents/organization/14836.pdf (last visited May 8, 2012).
14 Id; and see supra at 12 (re radar lock and surface to air missiles).
15 Id.
16 Supra at 12.
17 Iraq Liberation Act of 1998, http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.4655.ENR: (last visited May 8, 2012).
18 William J. Clinton: Statement on Signing the Iraq Liberation Act of 1998, http://www.presidency.ucsb.edu/ws/index.php?pid=55205#axzz1uK8VhmVA (last visited May 8, 2012).
19 Supra at 17.
20 Public Law 105-235, Iraqi Breach of Obligations, http://www.gpo.gov/fdsys/pkg/PLAW-105publ235/pdf/PLAW-105publ235.pdf (last visited May 8, 2012).
21 Supra at 13.
22 I do not believe the nuclear option was ever seriously considered.
23 Jihad Against Jews and Crusaders World Islamic Front Statement, http://www.fas.org/irp/world/para/docs/980223-fatwa.htm (last visited May 8, 2012).
24 Public Law 107-243, Authorization for Use of Military Force Against Iraq Resolution of 2002, http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/html/PLAW-107publ243.htm (last visited May 8, 2012).
25 From the author’s personal writings as an undergraduate student in 2003; original source unknown.
26 President Bush Speaks at Air Force Academy Graduation, http://georgewbush-whitehouse.archives.gov/news/releases/2004/06/20040602.html (last visited May 8, 2012). (This is worth the read as an inspiring speech that recalls President Kennedy.)
27 Supra at 24 and Resolution 1441, http://www.un.org/News/Press/docs/2002/SC7564.doc.htm (last visited May 8. 2012).
28 Selected Security Council Briefings, http://www.un.org/Depts/unmovic/new/pages/security_council_briefings.asp (last visited May 8, 2012).
29 Supra at 6.
30 Transcript of Larry King Live with President Clinton and Senator Dole, aired July 22, 2003, http://transcripts.cnn.com/TRANSCRIPTS/0307/22/lkl.00.html (last visited May 8, 2012).
31 Jimmy Carter State of the Union 1980, http://www.jimmycarterlibrary.gov/documents/speeches/su80jec.phtml (last visited May 8, 2012).
32 Remarks at the Welcoming Ceremony for King Fahd bin `Abd al-`Aziz Al Sa`ud of Saudi Arabia, http://www.reagan.utexas.edu/archives/speeches/1985/21185a.htm (last visited May 8, 2012).
33 New Jersey Peace Action, Paula Rogovin, Anna Berlinrut and Joseph Wheeler, Plaintiffs/Appellants, v. The President of the United States of America, Defendant/Respondent., http://law.newark.rutgers.edu/files/u/Appbrieffinalfinaltext.pdf (last visited May 8, 2012).
34 Over a decade later, President Obama cited humanitarian grounds, specifically Responsibility to Protect, to deploy airpower in Libya without Congressional authorization.
35 Compendium Observations and Lessons Learned, page 1058, http://www.un.org/Depts/unmovic/new/documents/compendium/Chapter_VIII.pdf (last visited May 8, 2012).
36 For example, see Sheldon Richman’s Iraqi Sanctions: Were They Worth It?, The Future of Freedom Foundation, http://www.fff.org/freedom/fd0401b.asp (last visited May 8, 2012). (It begins with Secretary of State Albright’s infamous response to a question about 500,000 Iraqi children dead due to the sanctions.)
37 Supra at 6.

Army Captain Travis Patriquin "remember the name"

CBS News's David Martin gives an American soldier his due: "The first glimmerings of the awakening can be traced to one American soldier. Army Capt. Travis Patriquin. Remember the name."



I read about CPT Patriquin and his famous Powerpoint presentation on the mil-blogs when he was killed. CPT Patriquin's friend (now) MAJ Chad Pillai wrote a tribute at Small Wars Journal. Another tribute by (now) LT David Pyle. I should check out this book about him.

Thoughts on the 10 year anniversary of 9/11

I visited Columbia for the 10th anniversary commemoration of 9/11. Organized by the Chaplain's office, the morning memorial was a solemn but also modest and low-key affair on Low plaza. My sense is that this year's 9/11 commemorations will be the last at Columbia. With Osama bin Laden killed, years of vitriolic partisan clash and conspiracy-mongering sapping our collective will to fight (see Mao's guidance on psy-ops in guerrilla warfare), and our imperiled economy the proximate concern, most Americans believe a decade on is the appropriate time to relegate 9/11 to history. By now, most 9/11 remembrances are sanitized of determined resolve to fight the enemy and more akin to recalling a unique disaster (like a plane accident or hurricane) than an ongoing contest. Republican and Democrat politicians both want to move on from the war. The problem is that the mission that our nation undertook after 9/11, what we knew then would be a Long War, is not finished. The enemy continues to vigorously compete. I'm glad YAF put out its "Never Forget" memorial on College Walk . . .

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<aside> Ron Lewenberg was right — Students United for Victory should have stayed focused on non-partisan support for the war effort instead of widening its focus to become Students United for America. When I made the decision to alter our course, SU4V was struggling and our founding purpose seemed too narrow to sustain a long-term life for the group. I believed redesigning SU4V to SU4A was a needed boost. I was also ambitious, aggressive, cognizant of the short window for student activists, and unwilling to take a step back. SU4A's mission of unifying Americans and solutions for the nation's challenges, including the War on Terror, reflected my deeper concern for America and was important, too; the SU4A concept is vindicated by the partisan gridlock, acrimony, and compounding problems our nation is afflicted with today. But the practical, unintended consequence of widening the focus from SU4V to SU4A is that SU4V's founding purpose was diluted and distracted from until eventually, SU4A lost the mission of supporting the war effort altogether. I designed the SU4A mission to be plastic around a set of core values in order to adapt to the needs of the nation, but that plasticity led the group to devolve into meaninglessness. In hindsight, SU4V's original tasks of countering misinformation, encouraging sober discourse, and maintaining non-partisan support for the War on Terror outweighed the broader SU4A mission. Since 9/11, our highest elections and national policy decisions have been influenced by popular opinion on the War on Terror. SU4V's mission and character were unique at Columbia and its founding purpose, while narrow in scope, should have been preserved. That said, weighing the alternatives in 2002 wasn't simple. I'm not discounting my contemporary analysis that SU4V would be short-lived without the SU4A redesign. That Ron was right doesn't necessarily mean I was wrong; SU4V was struggling and, in the short term, SU4A did work as intended. But the fact is SU4A failed to survive in the long term, and SU4V died with it. Knowing what I know now, I would have tried harder to preserve SU4V in its founding form, even if its survival would have required contracting the group to marginal production and a modest size. I could have innovated other ways, as we did with ICRA and the ROTC movement, to pursue the goals I conflated in SU4A. My call and my mistake. </aside>

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. . . The War on Terror is like fighting cancer and quitting the treatment halfway guarantees a weakened body left to the mercy of an evolutionarily toughened disease. Certainly, the economic cost of the war is a key consideration. Economic power is a prerequisite of military power and America's economic standing is shaky right now. Assuming we don't abandon the struggle, the question is how we adapt to keep up the fight at a sustainable — and a winnable — level. It could be that we actually will compete more agilely against the terrorists when we're forced to adapt and innovate with less funding and resources. Coupled with a defter footprint, less media attention could mean more creative room for our operators, too.

I agree with Richard Landes. Too many leaders, political and cultural, responded to 9/11 with nearsighted partisanship rather than patriotism, and retrenched in their preferred beliefs rather than a sober assessment of what we need to do to solve very complex problems and defeat a focused, aggressive enemy whose competitive advantage is powered with those same problems. A few celebrities at home have even sought to actively undermine our war effort as barbaric, a monstrous conspiracy, and a purposeful distraction from social priorities. Before 9/11, global critics — not only competitors, but some beneficiaries of Pax Americana — maligned American world leadership as a dangerous "hyperpower" that must be reined in and controlled. Since 9/11, many others have accused America of being the root cause of the world's problems, even as we're struggling against truly toxic entities and championing liberal reform. Their narrow perspective implicitly excuses anyone opposing us — even terrorists — as righteously standing up to American hegemony while also, tragically, implicitly dismissing anyone who cooperates with America — even courageous liberal reformers — as illegitimate, a lackey at best or traitor at worst. The commitment to blame America is so extreme for some, they've even blamed the body count from the terrorists' assassinations, mass murders, and other depravities on the US. Early in the 9/11 debates, I described this enabling outlook as 'terrorist-as-proxy', meaning people opposed America in the War on Terror not because they necessarily shared the terrorists' cause, but because they ascribed their various grievances against America to the terrorists' struggle. The terrorists have learned to use this self-destructive Western mindset by tailoring their propaganda to the blame-America-first narrative.

Our choices in the War on Terror on 9/11 were to try harder with our limited pre-9/11 strategy, full isolationist withdrawal, a killing war, or armed intervention with fundamental liberal reform (as opposed to simple democracy). We chose to fight for a liberal peace and reform of a dysfunctionally crippled, conspiracy-addled part of the world. Radical political Islam seems to be a zealous religious version of Communism that promises a similarly centralized systemic antidote for the evils of class, individualism, and capitalism, and shares Communism's killing hatred of liberalism. In the 3-way contest between Islamists, old-school dictators (and would-be dictators), and liberal reformers, the liberal reformers don't have a chance without our intervention. In that part of the world, liberal reformers are by far the weakest group and opposed by killers. If we abandon the liberal reformers, they're dead.

The enemy is 4GW, resilient, adaptable, thinking, and manipulative. He thinks pragmatically in the big picture and long view, while partisans in the West often seem deliberately obtuse. The enemy is totally committed to the revolution for a new world order. For the 9/11 attacks, the terrorists didn't need prodigious resources, merely the will to win by any means necessary and masterful use of our vulnerabilities, preferences, and beliefs against us. Meanwhile, the enemy protects himself by embedding in the black-market areas (eg, narcotics, smuggling, failed states) outside of the normal authority of our world order. The dictators of nation-states are within our conventional reach; the Islamists are not.

Our goal of liberal reform in the War on Terror is bottom-up and must begin with change at the granular personal level. The changes we need to happen have a much better chance of taking root in Iraq than in Afghanistan, but New York Times article Many Iraqis Have Second Thoughts as U.S. Exit Nears by Michael S. Schmidt hints at the psychological obstacles to liberal reform there. With great sacrifice battling vicious illiberal forces on Iraq's behalf and enormous investment into the new Iraq, America has given Iraq the opportunity for liberal reform, but if Iraqis are unable to overcome their modes of thinking, we can't make them do so. The article shows Iraqis sensing the opportunity for a better future slipping away, but their handicapped thinking is sabotaging their ability to seize the opportunity. (It's only human of them; as Richard Landes explained above, Westerners are equally suspectible to trapping themselves with handicapped thinking.) The situation reminds me of the subjects on the A&E show Intervention: with the reality of the American military's departure facing them, now may be the moment where Iraqis are finally ready to change with the proper assistance from us. The competitive illiberal forces inside and surrounding Iraq have not been neutralized. We should continue to play an active role assisting Iraq, though our future guidance may not be predominantly military in character. America's Iraq mission should adapt, not end.

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Related: Protecting Our Earned Freedom: Remembering 9/11 on the 20 year anniversary.

Also see 10 year anniversary of the start of Operation Iraqi Freedom: thoughts.

Documentary: Combat Support Hospital in Iraq 2003 and our post-war doctrinal flaws

Watch the moving 2004 NOVA documentary Life and Death in the War Zone about the 21st Combat Support Hospital, CSH or "cash", in OIF I:



The documentary is a snapshot of the Army's dedicated medical units in Iraq in 2003. Windows into the 2003 military that invaded Iraq, like this documentary, hit close to home. The Army that invaded Iraq in 2003 was still the same Army I left in 2001, down to the woodland BDUs, soft skinned HMMWV's, and sprinkling of old-style gray PTs.

The CSH and its personnel, as an operational unit, are as impressive as the military's post-war doctrinal flaws are glaring. Most poignant for me are the revealed flaws in the documentary of the military's post-war planning because I anticipated those flaws from my pre-9/11 service in Korea.

The poor bridge from the war to post-war in Iraq that was exploited so bloodily by insurgents and terrorists is usually blamed on poor planning by the Bush administration. In fact, the post-war flaws were a fundamental feature of 'Powell Doctrine'-era military planning. In the traumatized wake of the Vietnam War, the military viewed its mission as winning wars in terms of "major combat" only. The post-war phase was cast aside as someone else's responsibility. Essentially, the military doctrinally refused to do occupation and, as I learned in Korea, purposely planned for itself a very limited civil affairs role in the post major combat phase.

The war-focused mindset was ingrained in soldiers. When I was exposed to post-war plans in Korea, my initial reaction to "civil affairs" and "Phase IV" was typical of a GI: I saw myself as a combat support troop trained for war; the post-war was out of my lane. The concept of civil affairs was just strange. At the time, I even scoffed at the Civil Affairs branch as somehow unsoldierly — ironic given my present enthusiasm for civil affairs. As an MI troop, though, I was troubled by the lack of planning for the post-war and the fuzzy assumption that at the close of major combat, we would end-ex (end exercise), hand off occupation duties to an unknown transition force in an unknown manner, and go home. My Korea-born concerns about our post-war planning became realized in Iraq.

Add: For an outline of the initial post-war plan, see the White House Briefing on humanitarian reconstruction issues, 24FEB03: "provision for humanitarian support in Iraq in the event of any military action".

In fact, at that time, rather than a fully empowered and dedicated capacity, the Army civil affairs role was effectively limited to post-war assessment and transition coordination with other entities. As shown in the documentary, the limited role for civil affairs proved to be insufficient. The reality after major combat ended in Iraq was that, after regime change, US military forces proved to be the only effective system on the ground for the entire spectrum of societal functional needs, not just combat operations and national defense. Local Iraqi infrastructure, IOs, NGOs and other GOs proved to be woefully inadequate to provide for those needs in the immediate post-war. But the US military, as shown in the documentary, was stuck firmly in the 'Powell Doctrine' mindset that swore off occupation as anathema and deprioritized 'operations other than war'. In other words, in the 'golden hour' of the immediate post-war period where Iraq desperately needed an effective occupation, the only force in Iraq positioned and equipped to be an effective occupier — the US military — could not bring itself nor was it tasked to do what was needed to secure and build the peace. (That being said, to be fair, it's probable the nation-building infrastructure for the initial civilian-centered post-war plan would have caught up to the needs of the mission given more time with sufficient security. But the US-led coalition failed to "secure access" versus the terrorist insurgency, which precluded the adjustment period that the initial post-war plan needed to find its footing.)

The price of our immediate post-war failures has been high and we've learned the hard way that all soldiers are responsible for civil affairs in the post-war. The close of the documentary mentions that assisting local medical capacity eventually became a priority for the CSH. Since 2003, at great pain and cost, including lost opportunities, the US military has learned to leave behind the fundamentally flawed and destructive 'Powell Doctrine' and build an effective post-war occupation doctrine . . . I hope. I also hope it's not too late.

Green Zone – upsetting movie

Stylistically, the Green Zone movie is a lot like the Bourne movies. Okay as far as that goes. But I agree with Kyle Smith's NY Post review and Russ Douthat's NY Times commentary. I was angered by the movie's conspiratorial fill-in-the-blank fictions and contrarian views about the Iraq intervention. I'm frustrated that no matter how inaccurate or debateable, those fictions and views are asserted as settled truth by OIF opponents. Early on, I could still explain the justification for Operation Iraqi Freedom with people willing to listen and consider, but by now due to prolonged and heavy repetition, people refuse to even reconsider what for them has become axiomatic.

The core premise of Green Zone is the prevalent myth religiously asserted by OIF opponents that Saddam was falsely accused of WMD. In fact, Saddam's "material breach" (UNSCR 1441) of the Gulf War ceasefire WMD mandates was established by UNSCOM, decided by the UN Security Council, confirmed by UNMOVIC to trigger the decision for OIF, and corroborated post hoc by the Iraq Survey Group.

Iraq's guilt of proscribed armament was established and presumed in the UNSCR 687 disarmament process. The burden was on Saddam's Iraq to prove it was disarmed and rehabilitated according to the standard set by the Gulf War ceasefire. The US-led UN burden under the Gulf War ceasefire was not to discover and prove; instead, it was to enforce and verify the mandated performance by the guilty party. Iraq should have satisfied its burden in 1991-1992, but Saddam's repeated noncompliance and added abuses meant the proof requirement was more stringently enforced. It's true the intelligence was uncertain by 2002-2003, but that was not due to a conspiracy like Green Zone contends. Rather, the quality of the intel was a consequence of the deteriorated disarmament-turned-containment and Iraq's "denial and deception operations" (Iraq Survey Group) in violation of UNSCR 687. Because Saddam's guilt of proscribed armament was established, any intel was rightly and necessarily viewed in an unfavorable light for Iraq.

In fact, the pre-war intelligence estimates were not an element of the "governing standard of Iraqi compliance" (UNSCR 1441). Contrary to Green Zone's core premise that the US went to war with Iraq based on unverified intel, the UNSCR 1441 inspections provided the verification of Iraq's "continued violations of its obligations" (UNSCR 1441) that established casus belli. The intel didn't — and by procedure couldn't — trigger the invasion in Iraq's "final opportunity to comply" (UNSCR 1441). The principal enforcement trigger for the Operation Iraqi Freedom ground campaign in 2003 was the same enforcement trigger for the Operation Desert Fox bombing campaign in 1998: the confirmation by the UN weapons inspectors that Iraq failed to prove "full and immediate compliance by Iraq without conditions or restrictions with its obligations" (UNSCR 1441).

In other words, Green Zone's core premise is wrong — Saddam's "material breach" (UNSCR 1441) of the Gulf War ceasefire in Iraq's "final opportunity to comply" (UNSCR 1441) is confirmed. According to the operative law, policy, and precedent, and determinative facts, President Bush's decision for OIF was correct.

Even more than the movie's fundamental mischaracterization of the casus belli for OIF, I was disappointed by Green Zone's displayed preference for tyranny over liberalism. For example, the movie contends that contra the humanitarian mandates of UNSCR 688 (1991) and Public Law 105-338 (1998) reiterated in Public Law 107-243 (2002) and the compliance and nation-building processes mandated by UNSCR 1483 (2003), we should have immediately turned Iraq over to the same actors who carried out the brutality of Saddam's regime and the terrorist insurgency. I wonder how badly the critical discussion about liberalization on the Arab street has been corrupted by the revisionist anti-OIF narrative and rejection of liberal strategy demonstrated by Green Zone. When I visited Egypt earlier this year, local newspapers parroted the most caustic Western anti-war rhetoric. I believe anti-OIF Westerners have caused great harm to the progressive liberal cause around the world. Green Zone will only cause more damage at a time when the emerging democratic Iraq should be an inspiration. The Iraq intervention should be upheld by the world's liberals, not discredited as a lie and conspiracy.

My comment at a movie review:

"... war as the first, best solution to the real but immensely complex problem of Iraq"

Not first at all. We invaded Iraq only after 12 years, across 3 US presidencies, of intensively attempted but failed alternate solutions to the worsening problem of Iraq — hardly war as a first resort. Regime change for Iraq became US policy under Clinton [correction: Iraqi regime change became US law under Clinton but became US policy under HW Bush], and became the next-up solution in 1998 after Clinton declared Saddam's Iraq had failed "its final chance" and bombed Iraq in Operation Desert Fox — without going to the UN for permission. Contrary to the movie's emphasis on the intel, intel wasn't even a requirement for Operation Iraqi Freedom because Saddam's Iraq's guilt was established and had only deepened with every act of noncompliance and abuse. So, the Green Zone got its premise fundamentally wrong: the intel — whatever its quality — did not trigger any invasion. Through much of 2002, President Bush even gave Saddam ample warning and he tried the UN process, ignoring Clinton's precedent of bypassing the UN. Despite the generous opportunity to finally comply and resolve the problem peacefully, Saddam instead opted to repeat his pattern of noncompliance. Therefore, the trigger for the invasion was not the intel, but the same trigger for Clinton's order to bomb Saddam's Iraq in Dec 98: Saddam's Iraq's failure to meet the standard of proof required to establish its innocence.

Blackwater contractors helped fight terrorists in Iraq

EXCERPT: "One former Blackwater guard recalled a meeting in Baghdad in 2004 in which Erik Prince addressed a group of Blackwater guards working with the C.I.A. At the meeting in an air hangar used by Blackwater, the guard said, Mr. Prince encouraged the Blackwater personnel “to do whatever it takes” to help the C.I.A. with the intensifying insurgency, the former guard recalled."

Blackwater contractors helped fight terrorists in Iraq. Good thing, right? To my dismay, this story is being reported as a scandal.

The situation in 2004-2006 Iraq was critical and worsening. The terrorists were escalating their campaign and trying their hardest to collapse the fragile, post-Saddam Iraq with massive death and destruction. Iraqi society was tearing apart and people were dying in the streets by the hundreds. With the insurgency in Iraq reaching its height, the highest imperative for our side was to do everything we could do in order to protect Iraq and the Iraqi people from the terrorists. The Blackwater contractors, already hired and on the ground, were at least as well prepared as their overwhelmed counterparts in the CIA and US military. As the NY Times article describes the Blackwater contractors, "many of them [were] former members of units of the Navy Seals or Army Delta Force".

Despite the exigent circumstances of 2004-2006 Iraq, Representative Rush D. Holt believes the use of Blackwater contractors was "a scandal" and "very troubling to a lot of people.”

I disagree with Representative Holt. Not using the best people who were available on the ground at that time under those circumstances in Iraq would have qualified as 'very troubling' and a 'scandal'. Those Blackwater contractors should be commended, instead of treated as criminals. They weren't hired to fight terrorists in Iraq, but in an emergency situation, the Blackwater contractors understood the importance of the mission and the dangers faced by their short-handed government comrades. They responded like soldiers and placed their lives in more danger by volunteering their abilities to help their comrades and serve the greater good for their nation and Iraq.

Blackwater helping to fight terrorists in 2004-2006 Iraq: right. Rep Holt: wrong.

Closer reading of Nobel speech: Obama redefined "just war" and justified Iraq intervention

Many columns and blog posts about President Obama's Nobel speech have mistaken this statement as his operating definition of "just war":

The concept of a "just war" emerged, suggesting that war is justified only when certain conditions were met: if it is waged as a last resort or in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence.

In fact, the President considers that definition obsolete and used it as a jumping-off reference point to redefine "just war" for the 9/11 generation to include American-led liberal military interventions:

And it will require us to think in new ways about the notions of just war and the imperatives of a just peace. . . . So yes, the instruments of war do have a role to play in preserving the peace.

Some pundits have also tried to find a rebuke of the Iraq intervention in the speech. However, in defining “just war” for the 9/11 generation, Obama actually raised all the justifications for the Iraq intervention, though conspicuously without citing Operation Iraqi Freedom.

The President’s message was plain: when non-military means fail to achieve the “imperatives of a just peace” — which is what happened for Saddam’s Iraq — then the “instruments of war do have a role to play in preserving the peace”. Compare the justifications for military intervention against Saddam's Iraq in President Clinton's 16DEC98 speech and President Bush's 07OCT02 speech, Public Law 107-243 (the 2002 AUMF), and UN Security Council Resolution 1441 (2002) to President Obama's following criteria for "just" military intervention excerpted from his Nobel speech:

To begin with, I believe that all nations -- strong and weak alike -- must adhere to standards that govern the use of force. I -- like any head of state -- reserve the right to act unilaterally if necessary to defend my nation.
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Likewise, the world recognized the need to confront Saddam Hussein when he invaded Kuwait -- a consensus that sent a clear message to all about the cost of aggression.
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And this becomes particularly important when the purpose of military action extends beyond self-defense or the defense of one nation against an aggressor. More and more, we all confront difficult questions about how to prevent the slaughter of civilians by their own government, or to stop a civil war whose violence and suffering can engulf an entire region.
I believe that force can be justified on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war. Inaction tears at our conscience and can lead to more costly intervention later. That's why all responsible nations must embrace the role that militaries with a clear mandate can play to keep the peace.
America's commitment to global security will never waver.
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First, in dealing with those nations that break rules and laws, I believe that we must develop alternatives to violence that are tough enough to actually change behavior -- for if we want a lasting peace, then the words of the international community must mean something. Those regimes that break the rules must be held accountable. Sanctions must exact a real price. Intransigence must be met with increased pressure -- and such pressure exists only when the world stands together as one.
One urgent example is the effort to prevent the spread of nuclear weapons ...
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But it is also incumbent upon all of us to insist that nations like Iran and North Korea do not game the system. Those who claim to respect international law cannot avert their eyes when those laws are flouted. Those who care for their own security cannot ignore the danger of an arms race in the Middle East or East Asia. Those who seek peace cannot stand idly by as nations arm themselves for nuclear war.
The same principle applies to those who violate international laws by brutalizing their own people. When there is genocide in Darfur, systematic rape in Congo, repression in Burma -- there must be consequences. Yes, there will be engagement; yes, there will be diplomacy -- but there must be consequences when those things fail. And the closer we stand together, the less likely we will be faced with the choice between armed intervention and complicity in oppression.
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For peace is not merely the absence of visible conflict.
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It is undoubtedly true that development rarely takes root without security; it is also true that security does not exist where human beings do not have access to enough food, or clean water, or the medicine and shelter they need to survive. It does not exist where children can't aspire to a decent education or a job that supports a family. The absence of hope can rot a society from within.

"[S]top a civil war whose violence and suffering can engulf an entire region" and the last excerpted paragraph about "development rarely takes root without security" match our post-war efforts, most notably the COIN "Surge", to build the peace in Iraq after regime change — the jus post bellum of "just war" as distinct from jus ad bellum. I posted comments about Obama's speech and OIF on The Strategist blog (archived), which belongs to an anti-OIF poli sci guy from New Zealand.

Add: Compare President Obama's redefinition of "just war" with the law and policy, fact basis of Operation Iraqi Freedom, which I explain here.

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Also see Gripe: "expedience sake" and Comments on Obama inaugural address.

The Power of Diversity (2001)

PREFACE: I wrote this column for my school paper less than 2 months after the attacks of 9/11.

The Power of Diversity
by [Eric LC]
November 9, 2001, 12:00am

In our war against terrorism, diversity should be the greatest strength of the American people. Our country is not defined by any ethnicity or religion. We share a concept of country that embraces every person, no matter where he traces his family’s roots. Every language, every culture, every religion, every ethnicity, and every race of the world can be found in our American mosaic. To fight this war, our country should be able to draw upon an abundance of diverse human resources.

We have been raised, however, to think of our differences as a source of conflict. Politically correct culture has tried to downplay our differences when we should cherish our diversity and recognize that it makes us stronger people. Now that peacetime discourse has been replaced by wartime necessity, we have the opportunity to transform American diversity from a source of domestic conflict into a powerful weapon. The nation demands the unity of the American people in confronting our common enemy, but the diversity of the American people is the key to American victory.

Osama bin Laden, on his side, views our diversity as a weakness. Where President Bush has continually affirmed that the war on terrorism is not against Muslims, Osama bin Laden has defined the war along unmistakable ethnic and religious lines. His voice is louder than America’s voice in the Muslim world, and he has succeeded in winning the sympathy of many Muslims.

The United States has taken the lead in the war against Osama bin Laden’s terrorism, and we have the capability to defeat him. When isolated, the terrorists amount to no more than a radical fringe of particularly sophisticated bandits. But we cannot defeat terrorism if Osama bin Laden succeeds in polarizing Muslims against America. The war against terrorism is, in large part, a psychological war; therefore, winning the hearts and minds of the world’s Muslims is essential to the American war effort. Fortunately, within our diversity, we find a powerful weapon in the psychological fight: millions of Americans who are gifted with the right language, culture, and religion to appeal to the world’s Muslims on America’s behalf.

In building his terrorist organization, Osama bin Laden has proven to be an astute student of history and a master of propaganda. He appreciates the power of hate and has chosen the United States to be the scapegoat of his hate-driven campaign, much like the way Adolph Hitler once chose Europe’s Jews to focus his efforts. Terrorism represents a virulent form of destructive hate that is every bit as effective as Nazism in 1930s Germany. Like Hitler, Osama bin Laden has presented himself as an avenger of past wrongs, thus masking his murderous actions with pretences of a false victimization. Even as he defiles Islam, kills thousands of innocents, and foments a war that causes massive destruction among those he claims to represent, Osama bin Laden, by manipulating legitimate grievances, has successfully won the sympathy of many Muslims who would otherwise be in the best position to stop him. The unfortunate people who have chosen to support Osama bin Laden, such as the Taliban, are also victims of terrorism. In the unavoidable human cost of America’s battle against terrorism, the supporters of Osama bin Laden will pay the same penalty as the Nazi supporters in World War II.

Muslim Americans are in a unique position to aid the American war effort, both at home and abroad, while diminishing the overall casualties of the war. At home, many non-Muslim Americans lack an understanding of Islam and Islamic culture, which has allowed the fear generated by the terrorist attacks to have a deep impact on our country, particularly Muslim Americans. By engaging in the American war effort and educating non-Muslim Americans about their religion and culture, Muslim Americans can unify and strengthen the American people, while also negating the caustic fear that serves the terrorist enemy. As the face and voice of America abroad, Muslim Americans can effectively combat Osama bin Laden’s propaganda campaign in the Muslim world. By convincing the world’s Muslims to support America and not the terrorists, Muslim Americans can save many lives: those who do not support Osama bin Laden, after all, will not die on his behalf.

In our American diversity, we find our greatest advantage over the terrorists and our nation’s key to winning this war. All Americans share the same duty of service to our country. Muslim Americans, however, have a special opportunity to serve their country with a unique set of skills and abilities. With this war, Muslim Americans hold the power to change the course of American history, and in doing so, to join the annals of the greatest American heroes. Muslim Americans, in essence, have been given a rare chance to create a permanent niche in the hearts and minds of America.

Comments on Obama inaugural address

A post by Professor Nacos on her blog last month, Lebanon Election Outcome and Obama’s Public Diplomacy, reminded me of my responses to Professor Nacos' January post about President Obama's inauguration, The Promise of America's and Obama's Patchwork Heritage.

My comments sandwich a response by Professor Nacos:

The issue at stake is perception, not reality. Obama expressed the same message as Bush. If anything, Obama's expressions of Christianity, American primacy, and leadership with American ideals in his inaugural address were *more* aggressive than Bush, in effect out-Bushing Bush. There was quite a bit of 'either with us or against us' sentiment in it, just not as plainly spoken as his predecessor.

The Bush administration made a dedicated effort to make clear that the War on Terror is not a war on Islam. While the enemy has used an unambiguous radical religious construct to sell their war since before 9/11, and (continue to) commit atrocities and sabotage our peace-building efforts since 9/11, President Bush responded by promoting Islam as a peaceful religion that can co-exist with Western modernity. However, President Bush was an uncharismatic public spokesman in the face of media and self-serving politicians who undermined our war and peace-building missions.

In reality, the ideology underpinning our War on Terror has not been religious, but progressive liberalism, where Bush was the inheritor of Lincoln, Wilson, FDR, Truman and Kennedy (although one can argue that, while secular, the roots of progressive liberalism are Christian). Unless President Obama has been extremely duplicitious, he will continue Bush's progressive liberalism, which means the reality of how we conduct the war won't change. Nor will it calm our enemies and other leaders tangibly threatened by American primacy and the newest 'Washington agenda'. This is, after all, a competition with real stakes.

Potentially, perception will change due to the transfer of power from the uncharismatic Bush to the charismatic Obama. But will the media help Obama in the same places they undermined Bush? That remains to be seen. It also remains to be seen whether Obama, with or without media help, can make a difference in the regions where we are competing for the war and peace.

Maybe, if we Americans are truly deterministic agents, then in the bottom-line, it matters less what they think of the war; it only matters what we think of it. In that case, President Obama's value will not be changing the war itself or how it's perceived by our competitors, but changing how we collectively think of it.

Posted by: Eric January 24, 2009 at 09:44 AM

Ah, Eric. You and I must have listened to different speeches on inauguration day.
The "war on terrorism" a la ex-president Bush is over. One cannot fight a war against non-state actors, indeed, such a declaration alone elevates terrorist organizations like Al Qaeda to a level they do not deserve.
As Secretary of Defense Robert Gates has repeatedly stated, military might will not defeat terrorism--what is needed is a mix of hard and soft power. Secretary of State Clinton called that recently smart power.

Posted by: Brigitte January 24, 2009 at 10:17 AM

Again, a perception problem. Those who believe the War on Terror is over with the change of administration have failed to grasp its continual evolution since 9/11. What Gates, Clinton and many others (including Bush) have said is perfectly compatible with Bush's, and now Obama's, evolving War on Terror.

We only have to read the on-going discussions about 4th or 5th generation warfare, based on events, to understand the notion of "war" as applied to the War on Terror is very different than the traditional state-vs-state (or 3rd generation) definition we grew up with. The traditional understanding of war doesn't fit the War on Terror, and therefore, has been a stumbling block for people who've persistently misunderstood this war.

The War on Terror is and has been full-spectrum, while peace-building is and has been a cornerstone of the war ... at the same time, war is and has been a cornerstone of the peace-building. I agree the war/peace should involve many more agencies than the military, but the military's dominant role has been less due to policy preference than reality. The State Department, for example, which is based upon government-2-government negotiation and nation-state dominance, has been ill-suited for the current war. (That said, the War on Terror has proven fluid in that regard, eg, State presence in Iraq, under Ambassador Crocker, has been restored to prominence concurrently with the increasing stability and reach of the Iraqi government. Using what we learned in Iraq, we can hope for similar progress by State with the Karzai government in Afghanistan.) As we've discussed before, until traditional soft power agencies are able to operate in failed state or even stateless non-permissive environments and adjust their capabilities to it, then by default, our military will be the main applied soft power *and* hard power agency. We shouldn't prefer a full-spectrum role for the military, and the military certainly does not, but that's been dictated by reality, not a dogmatic choice by the former President. Our alternative? We witnessed our alternative in Somalia and Rwanda.

The evolving War on Terror is anything but over, but perhaps, it has become unrecognizable to proponents of traditional war. If the war requires renaming for more people to understand its full-spectrum nature and the realities of the agencies involved, then maybe we should rename the War on Terror. I just don't know there is a better descriptive term for it. Until we invent a better term, I still prefer "war" just for the level of commitment implied by the term.

As far as Obama's inaugural address, the beauty of it is that it offered something for most everyone. And yes, in places, it out-Bushed Bush. Re-read Obama's speech then go back and re-read Bush's speeches. Then consider how much of the content is effectively the same. Consider these examples:

"Our nation is at war against a far-reaching network of violence and hatred."
-- Did critics once accuse Bush of a simplistic bipolar framing and lack of nuance in the War on Terror?

"But in the words of Scripture ... This is the source of our confidence -- the knowledge that God calls on us to shape an uncertain destiny."
-- !!! - as a non-religious American, I understand presidents routinely cite Christianity, notwithstanding ahistorical accusations of Bush, but Obama struck an eyebrow-raising fundamentalist, even evangelical, tone that I don't recall in the presidents of my lifetime.

"In reaffirming the greatness of our nation ... the risk-takers, the doers, the makers of things ... This is the journey we continue today. ... Those ideals still light the world"
-- Invocation of the vigorous, even expansionist, progressive liberalism that underpinned our westward expansion, post-Civil War Reconstruction, entry in the world wars (v Fascism), Cold War compare/contrast (v Communism), the pre-Bush accusation of the US as a meddling ideologue hyperpower, and the current War on Terror. Obama fairly well dispelled any doubt that he, even more than Bush, is a liberal idealist.

"... to all the other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born, know that America is a friend of each nation, and every man, woman and child who seeks a future of peace and dignity. And we are ready to lead once more."

"We will not apologize for our way of life, nor will we waver in its defense. And for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that our spirit is stronger and cannot be broken -- you cannot outlast us, and we will defeat you."

I can go on, Professor, but when I verge on quoting half or more of a speech, I may as well just refer you to the speech itself. Am I saying Obama is merely the logical continuation of Bush? In important ways, it appears that way so far; in other important ways, no, and I hope for the best in those areas, too. I agree with Obama that we do need to assess, innovate and re-invent ourselves so we can evolve for the 21st century, and not just rely on 20th century conventions. Under Bush, it appeared that the only significant areas of evolution were the military, our war/peace strategy, and possibly intelligence-gathering. It's up to Obama to build upon what Bush did right in those areas and be wary of the reactionaries who've opposed those changes, while also setting in motion changes in the important areas that Bush neglected to address.

I stand by what I said. The themes of Christianity, American primacy, and world leadership with American ideals in Obama's inaugural address out-Bushed Bush. I actually found it difficult to pull out a concise 'with us or against us' quote, because it was the basic premise of the foreign policy section of Obama's address. (It's a misperception that Bush preferred unilateralism, and we have hardly 'gone it alone' in any case; he was just unwilling to abandon the mission for want of sufficient multilateral consensus; even universal consensus, as we've learned to our frustration in Afghanistan, does not equate to sufficient multilateral commitment and investment.)

Obama's inaugural address was unreservedly liberal-hawkish. What stood out the most in the speech was that Obama was hardly circumspect about an aggressive transformative interventionist international role for America, what was called neo-conservative or liberal imperialism when pursued by the last administration. It appears President Obama, even more than his predecessor, desires that we change the world in our ideal image of ourselves. That's okay I guess, as long as folks, both the changers here and the changees abroad who were unwilling to change for ex-President Bush, are now willing to make the same change for a better American spokesman, the "patchwork" President Obama.

Posted by: Eric January 24, 2009 at 02:25 PM

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Also see Gripe: "expedience sake" and Closer reading of Nobel speech: Obama redefined "just war" and justified Iraq intervention.