Operation Iraqi Freedom FAQ
Here is my latest attempt to set the record straight on Operation Iraqi Freedom with its law and policy, fact basis by drawing on primary sources such as the Gulf War ceasefire UN Security Council resolutions that set the "governing standard of Iraqi compliance" (UNSCR 1441), the US law and policy that enforced the UNSCRs, the conditions and precedents that set the stage for OIF, and the determinative fact findings that triggered the decision for OIF.
Click on the questions or scroll down for my answers to these frequently asked questions.
- What were President Bush’s alternatives with Iraq?
- Why did Bush leave the ‘containment’ (status quo)?
- Why not free a noncompliant Saddam?
- Why did resolution of the Saddam problem require a threat of regime change?
- Did Bush allow enough time for the inspections?
- Did Iraq failing its compliance test justify the regime change?
- The reasons for OIF seemed to change. Was it about WMD or democracy?
- Was the invasion of Iraq perceived to be a nation-building effort?
- Did Bush lie his way to war with Iraq?
- Was Operation Iraqi Freedom legal?
- If a new UN authorization was not needed for OIF, then why did Bush go to the UN?
- Did Operation Iraqi Freedom really cost X trillions of dollars?
- Was Operation Iraqi Freedom a strategic blunder or a strategic victory?
Q: What were President Bush’s alternatives with Iraq?
A: The key to understand President Bush's decision for Operation Iraqi Freedom (OIF) lies with President Clinton's enforcement of the Gulf War ceasefire as it peaked in 1998 with Operation Desert Fox (ODF). Clinton's entire presidency was preoccupied with Saddam Hussein's noncompliance with the Gulf War ceasefire United Nations Security Council (UNSC) resolutions (UNSCRs), principally UNSCRs 687 and 688. Bush's case against Saddam was really Clinton's case against Saddam, updated from 9/11. Likewise, Bush's enforcement procedure with OIF carried forward Clinton's enforcement procedure for Iraq, updated from ODF, the penultimate military enforcement step.
After the failure to bring Iraq into compliance with ODF, Clinton switched from enforcing Iraq's compliance to indefinitely 'containing' a noncompliant Saddam while working to depose Saddam's regime and "stand[ing] ready to help a new leadership in Baghdad that abides by its international commitments" (Clinton).
On July 28, 2000, six months from handing over the White House to Governor Bush or Vice President Gore, President Clinton gave official notice to Congress that the national emergency with Iraq continued unresolved:
The crisis between the United States and Iraq that led to the declaration on August 2, 1990, of a national emergency has not been resolved. The Government of Iraq continues to engage in activities inimical to stability in the Middle East and hostile to United States interests in the region. Such Iraqi actions pose a continuing unusual and extraordinary threat to the national security and foreign policy of the United States.By the close of the Clinton administration, after ten years of struggle as chief enforcer of the UNSC resolutions to disarm and rehabilitate Saddam, only 3 options remained for the US with Iraq: kick the can with ‘containment’ (status quo), accept Iraq's noncompliance and free Saddam, or resolve the Saddam problem with a final chance for Saddam to comply with Iraq's ceasefire obligations under credible threat of regime change.*
An intellectually honest argument against President Bush's decision to resolve the Saddam problem by enforcing Iraq's compliance must include a compelling case for kicking the can with 'containment' and/or freeing a noncompliant Saddam.
* The Blix alternative, used by President Clinton to retreat from his support for President Bush and endorsement of OIF, was not realistic.
Q: Why did Bush leave the ‘containment’ (status quo)?
A: One, the purpose of the Gulf War ceasefire was the expeditious compliance and disarmament of Iraq to the standard mandated by the UNSC resolutions, not a stalemated 'containment' of a noncompliant Saddam.
Two, the ‘containment’ was toxic and broken. The ad hoc 'containment' that followed the end of UNSCOM and Operation Desert Fox was, in effect, a euphemism for failed disarmament. There was no substantive change in the enforcement measures after ODF from the strategy in place when President Clinton judged, "This situation presents a clear and present danger to the stability of the Persian Gulf and the safety of people everywhere," and pronounced, "Iraq has abused its final chance." According to the Iraq Survey Group, Saddam responded to ODF by nullifying the Gulf War ceasefire UNSC resolutions, including UNSCR 687 and its disarmament mandates, in domestic Iraq policy. Encouraged by the bearable cost of the ODF bombing, which he believed was the limit of the US-led enforcement, Saddam moved to reconstitute Iraq’s weapons-of-mass-destruction (WMD) capabilities with a clandestine active program in the Iraqi intelligence services (IIS) and fostered international opposition to the Iraq enforcement. The post-ODF 'containment' relied chiefly on the constraint of sanctions, yet by 2001, Saddam had de facto neutralized the sanctions.
These ISG findings illustrate the evident collapse of the 'containment' before the 9/11 attacks:
From Baghdad the long struggle to outlast the containment policy of the United States imposed through the UN sanctions seemed tantalizingly close. There was considerable commitment and involvement on the part of states like Russia and Syria, who had developed economic and political stakes in the success of the Regime. From Baghdad’s perspective, they had firm allies, and it appeared the United States was in retreat. The United Nations mechanism to implement the Oil For Food program was being corrupted and undermined. The collapse or removal of sanctions was foreseeable. This goal, always foremost in Saddam’s eyes, was within reach.Three, the pre-9/11 threat calculation for Saddam was based primarily on a conventional military "imminent" threat standard. The 9/11 attacks, coupled with the uncovering of an international WMD black market, shifted the threat calculation to a "grave and gathering" threat standard with increased focus on Saddam’s unconventional capabilities, such as the IIS and terrorist ties.
There is an extensive, yet fragmentary and circumstantial, body of evidence suggesting that Saddam pursued a strategy to maintain a capability to return to WMD after sanctions were lifted by preserving assets and expertise. In addition to preserved capability, we have clear evidence of his intent to resume WMD as soon as sanctions were lifted.
By 2000-2001, Saddam had managed to mitigate many of the effects of sanctions and undermine their international support. Iraq was within striking distance of a de facto end to the sanctions regime, both in terms of oil exports and the trade embargo, by the end of 1999.
The successful implementation of the Protocols, continued oil smuggling efforts, and the manipulation of UN OFF [Oil for Food] contracts emboldened Saddam to pursue his military reconstitution efforts starting in 1997 and peaking in 2001. These efforts covered conventional arms, dual-use goods acquisition, and some WMD-related programs.
Prohibited goods and weapons were being shipped into Iraq with virtually no problem. The only notable items stopped in this flow were some aluminum tubes, which became the center of debate over the existence of a nuclear enrichment effort in Iraq. Major items had no trouble getting across the border, including 380 liquid-fuel rocket engines. Indeed, Iraq was designing missile systems with the assumption that sanctioned material would be readily available.
Iraq’s decisions in 1996 to accept the Oil-For-Food program (OFF) and later in 1998 to cease cooperation with UNSCOM and IAEA spurred a period of increased activity in delivery systems development. The pace of ongoing missile programs accelerated, and the Regime authorized its scientists to design missiles with ranges in excess of 150 km that, if developed, would have been clear violations of UNSCR 687.
From 1999 until he was deposed in April 2003, Saddam’s conventional weapons and WMD-related procurement programs steadily grew in scale, variety, and efficiency.
After the Gulf War, Saddam's terrorism had continued in violation of UNSCR 687, and in an address to the Joint Chiefs of Staff and Pentagon staff on February 17, 1998, President Clinton warned of "the very kind of threat Iraq poses now: a rogue state with weapons of mass destruction, ready to use them or provide them to terrorists".
Consequent to 9/11, the priority that President Bush assigned to preventing the acquisition of Iraqi weapon by terrorists followed President Clinton's Presidential Decision Directive/NSC-39 (1995):
[The] United States shall seek to identify groups or states that sponsor or support such terrorists, isolate them and extract a heavy price for their actions.Bush explained the changed threat calculation for Saddam in the 2003 State of the Union:
The United States shall seek to deter terrorism through a clear public position that our policies will not be affected by terrorist acts and that we will act vigorously to deal with terrorists and their sponsors.
The United States shall give the highest priority to developing effective capabilities to detect, prevent, defeat and manage the consequences of nuclear, biological or chemical (NBC) materials or weapons use by terrorists.
The acquisition of weapons of mass destruction by a terrorist group, through theft or manufacture, is unacceptable. There is no higher priority than preventing the acquisition of this capability or removing this capability from terrorist groups potentially opposed to the U.S.
Before September the 11th, many in the world believed that Saddam Hussein could be contained. But chemical agents, lethal viruses and shadowy terrorist networks are not easily contained. ... Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option.Citing to his own experience as President with the Iraq enforcement, Clinton endorsed Bush acting to resolve the heightened threat:
Let me tell you what I know. When I left office, there was a substantial amount of biological and chemical material unaccounted for. ... 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. ... it is incontestable that on the day I left office, there were unaccounted for stocks of biological and chemical weapons. (CNN interview, July 3, 2003)and
Noting that Bush had to be "reeling" in the wake of the attacks of September 11, 2001, Clinton said Bush's first priority was to keep al Qaeda and other terrorist networks from obtaining "chemical and biological weapons or small amounts of fissile material."The 2 US presidents were right to be alarmed by the situation. These ISG findings illustrate the danger hiding in the broken 'containment':
"That's why I supported the Iraq thing. There was a lot of stuff unaccounted for," Clinton said in reference to Iraq and the fact that U.N. weapons inspectors left the country in 1998.
"So I thought the president had an absolute responsibility to go to the U.N. and say, 'Look, guys, after 9/11, you have got to demand that Saddam Hussein lets us finish the inspection process.' You couldn't responsibly ignore [the possibility that] a tyrant had these stocks," Clinton said. (CNN, June 19, 2004)
ISG uncovered information that the Iraqi Intelligence Service (IIS) maintained throughout 1991 to 2003 a set of undeclared covert laboratories to research and test various chemicals and poisons, primarily for intelligence operations. The network of laboratories could have provided an ideal, compartmented platform from which to continue CW [chemical weapons] agent R&D or small-scale production efforts,The IIS was, of course, Saddam's regime arm notorious for working with terrorists and carrying out Saddam's in-house black ops. In fact, Iraq’s chemical and biological weapons programs started in the IIS. The ISG found Saddam was evidently capable of secretly producing weapon for covert precision attacks, whether in league with terrorists like al Qaeda or by his own means.
• The existence, function, and purpose of the laboratories were never declared to the UN.
• The IIS program included the use of human subjects for testing purposes.
[The] following are of particular concern, as they relate to the possibility of a retained BW [biological weapons] capability or the ability to initiate a new one.
• ISG cannot determine the fate of Iraq’s stocks of bulk BW agents remaining after Desert Storm and subsequent unilateral destruction. There is a very limited chance that continuing investigation may provide evidence to resolve this issue.
• The fate of the missing bulk agent storage tanks.
• The fate of a portion of Iraq’s BW agent seed-stocks.
• The nature, purpose and who was involved in the secret biological work in the small IIS laboratories discovered by ISG.
While it was the 9/11 attacks that pushed President Bush to resolve the Saddam problem, the Iraq enforcement was in a terminal state. The picture emerging outside Iraq was clear: the sanctions had fallen, the growing flow of proscribed items into Iraq indicated Saddam was rearming, and his terrorist activity continued unabated. With or without 9/11, the Saddam problem had come to a head with the ‘containment’ broken.
Q: Why not free a noncompliant Saddam?
A: See Saddam’s history from 1980 onward with the instigation of successive wars and the continued malfeasant behavior causing a humanitarian crisis within Iraq and "threaten[ing] international peace and security in the area" (UNSCR 1441 et al.).
Dealing cautiously with unsavory competitors that are rational actors is normal for the US and shaped the initial American approach to the Iran-Iraq War. However, Saddam proved to be an aggressive irrational actor with dangerously poor judgement.
A common misconception is that the US was allied with Iraq against Iran in the Iran-Iraq War, like the US relationship with the Soviet Union during World War 2. Actually, the US priority was containing the conflict pursuant to the Reagan Corollary to the Carter Doctrine, which established the security and stability of the Middle East as a US national security interest. The US view on Iraq was cautiously favorable neutrality. However, Iran had recently become an enemy. The US shared some intelligence and, among other countries, US firms traded some "dual-use" biological and technical items with Iraq during the Iran-Iraq War. Opposing Khomeini's regime in Iran was justified, but favoring Saddam's regime was a mistake. The subsequent Gulf War was a watershed for the US and UN relationship with Iraq. Saddam was warned over his actions in the Iran-Iraq War, yet he followed them by brutalizing Kuwait, defying international demands to stop, even attempting to expand the conflict during the Gulf War, and viciously suppressing the uprising by the Iraqi people. Saddam acted as though proscriptive international law and custom was a guide for what to do, rather than what not to do as a national leader.
As such, the Gulf War ceasefire was purposefully designed to rehabilitate Saddam so he could be trusted with the peace. If Saddam failed to comply with the UNSC resolutions, then under the terms of UNSCR 687, the Gulf War ceasefire would be breached with Iraq's status restored to the Gulf War. The terms of the ceasefire were necessary to trust Saddam with the peace. By mandate and judgement, the US as chief enforcer could not accept less from Saddam than full compliance with Iraq's ceasefire obligations, weapons and non-weapons related, especially after 9/11.
On August 2, 1999, in his last comprehensive update on Iraq's compliance to Congress per Public Law (P.L.) 102-1 (1991), President Clinton was plainly opposed to freeing a noncompliant Saddam:
We are convinced that as long as Saddam Hussein remains in power, he will continue to threaten the well-being of his people, the peace of the region, and vital U.S. interests. We will continue to contain these threats, but over the long term, the best way to address them is by encouraging the establishment of a new government in Baghdad.On September 12, 2002, President Bush explained the raised stakes after 9/11 and reiterated the compliance basis of the Iraq enforcement to the UN General Assembly:
The human rights situation in Iraq continues to fall far short of international norms, in violation of Resolution 688. That resolution explicitly notes that the consequences of the regime's repression of its own people constitute a threat to international peace and security in the region.
Iraq remains a serious threat to international peace and security. I remain determined to see Iraq fully comply with all of its obligations under Security Council resolutions. The United States looks forward to the day when Iraq rejoins the family of nations as a responsible and law-abiding member.
Above all, our principles and our security are challenged today by outlaw groups and regimes that accept no law of morality and have no limit to their violent ambitions. In the attacks on America a year ago, we saw the destructive intentions of our enemies. This threat hides within many nations, including my own. In cells and camps, terrorists are plotting further destruction, and building new bases for their war against civilization. And our greatest fear is that terrorists will find a shortcut to their mad ambitions when an outlaw regime supplies them with the technologies to kill on a massive scale. In one place -- in one regime -- we find all these dangers, in their most lethal and aggressive forms, exactly the kind of aggressive threat the United Nations was born to confront. Twelve years ago, Iraq invaded Kuwait without provocation. And the regime's forces were poised to continue their march to seize other countries and their resources. Had Saddam Hussein been appeased instead of stopped, he would have endangered the peace and stability of the world. Yet this aggression was stopped -- by the might of coalition forces and the will of the United Nations. To suspend hostilities, to spare himself, Iraq's dictator accepted a series of commitments. The terms were clear, to him and to all. And he agreed to prove he is complying with every one of those obligations. He has proven instead only his contempt for the United Nations, and for all his pledges. By breaking every pledge -- by his deceptions, and by his cruelties -- Saddam Hussein has made the case against himself.Freeing a noncompliant Saddam was out of the question. The Iraq Survey Group Duelfer Report confirms that Saddam was not rehabilitated.
IR realists like to claim US interests, including regional stability, were better served with Saddam countering Iran. The faulty premise of IR realists is Saddam could be trusted as a rational actor, yet Saddam acting out of control, destabilizing, and against US interests is the reason for the US intervention with Iraq in the first place. I think they're stuck in 1980 with our ally, the Shah, only just replaced by our enemy, the Ayatollah, and Baathist Iraq, led by then-new President Saddam Hussein, thought to be the lesser of 2 evils. IR liberals understand that by the time of the Bush administration (either one works), the Iran-Iraq conflict was a source of the region's problems, not a stabilizer. IR realists are effectively proposing an unreconstructed Hitler should have been propped up in Germany following World War 2 in order to serve as a regional counter to the Soviet Union. Hitler + USSR = the worst of World War 2, not peace in our time. The IR-realist belief that after 9/11 we should have trusted and empowered a noncompliant Saddam to deal with Iran on our behalf is madness.
By the same token, the claim that Saddam's regime was the antidote for the post-war insurgency seems incredible when considering Saddam's "systematic, widespread and extremely grave violations of human rights and of international humanitarian law ... resulting in an all-pervasive repression and oppression sustained by broad-based discrimination and widespread terror" (UN Commission on Human Rights). In fact, Saddam's violation of humanitarian mandates was a primary focus of the Gulf War ceasefire per UNSCR 688 and related resolutions. Saddam, his sons, and their loyalists were the original cause and major driver of the terroristic insurgency that attacked peace operators and the Iraqi people, which was adapted from Saddam's terroristic governance of Iraq. Saddam was a vector of the post-war insurgency, not the cure for it. Saddam, his sons, and their loyalists were not people who should hold authority over any civilized society.
Nonetheless, the fact is that Saddam was given opportunities throughout the Iraq enforcement to rehabilitate and stay in power, yet refused. The ISG Duelfer Report describes Saddam growing increasingly irrational in his thinking even as he consolidated power, abused his nation's people, and reconstituted his WMD capabilities. Saddam was convinced Iraq needed WMD in order to realize his ambitions and counter Iran as well as his other enemies. Iran’s WMD development is bad enough by itself. The IR-realist alternative of freeing a noncompliant Saddam with dangerously poor judgement to impel an urgent Iran-Iraq arms race was neither the way to counter Iran nor "restore international peace and security in the area" (UNSCR 678).
Q: Why did resolution of the Saddam problem require a threat of regime change?
A: One, because every non-military and lesser military enforcement measure had been used up during the Clinton administration with Iraq steadfastly noncompliant. The Operation Desert Fox bombing campaign was the penultimate military enforcement. When Saddam was debriefed after his capture, he confirmed that he had been ready and willing to absorb another bombing campaign like ODF. By progressive sequence, the next - and last - step up from the ODF bombing campaign was the OIF ground invasion, the ultimate military enforcement.
Two, as the lesser enforcement measures were exhausted against Saddam's persistent subversion of the disarmament process and open violation of non-weapons mandates, President Clinton concluded regime change was the only realistic way to bring Iraq into compliance. In 1998, the object of regime change for Iraq was made into US law along with active measures. Clinton also reinforced the US legal authority to use military force to bring Iraq into compliance.
Three, according to Hans Blix (UNMOVIC) and confirmed by the Iraq Survey Group, a credible threat of regime change was necessary to compel Saddam to cooperate at all with the inspections. Again, Saddam had de facto neutralized the sanctions and, after ODF, set domestic Iraq policy nullifying the Gulf War ceasefire UNSC resolutions and determined another bombing campaign like ODF could be absorbed.
In the end, even the credible threat of regime change provided by the OIF invasion force was not enough incentive for Saddam to comply, disarm, and rehabilitate.
Q: Did Bush allow enough time for the inspections?
UNSCR 1441 "instruct[ed] UNMOVIC and request[ed] the IAEA to resume inspections no later than 45 days following adoption of this resolution and to update the Council 60 days thereafter". UNSCR 1441 was adopted on November 8, 2002 and UNMOVIC and IAEA resumed inspections on November 27, 2002. November 27, 2002 + 60 days thereafter = January 26, 2003. Alternatively, November 8, 2002 + 45 days following the adoption of UNSCR 1441 + 60 days thereafter = February 21, 2003.
On March 7, 2003, 100 days after the resumption of inspections and 119 days after the adoption of UNSCR 1441, the UNSCR 1441 inspection period concluded when UNMOVIC presented the Cluster Document to the UN Security Council with the finding of "about 100 unresolved disarmament issues". The Cluster Document discharged the mandate from UNSCR 1441 to test Saddam's compliance with UNSCR 687 for his "final opportunity to comply with [Iraq's] disarmament obligations" (UNSCR 1441).
The UN inspectors' role has often been mischaracterized as searching Iraq for WMD to match the pre-war intelligence, while the mandate for Saddam has often been mischaracterized as merely to allow the UN inspectors to search Iraq. Based on those false premises, OIF opponents claim Operation Iraqi Freedom forced UNMOVIC to decamp Iraq while Saddam was dutifully cooperating with the UN inspectors.
Actually, Saddam was mandated to "immediately, unconditionally, and actively" (UNSCR 1441) account for all aspects of Iraq's WMD in conformity with the "governing standard of Iraqi compliance" (UNSCR 1441) set by UNSCR 687, not merely allow the UN inspectors to search Iraq for WMD.
On January 27, 2003, Hans Blix clarified the mandate for "substantive cooperation" to the UN Security Council:
The substantive cooperation required relates above all to the obligation of Iraq to declare all programmes of weapons of mass destruction and either to present items and activities for elimination or else to provide evidence supporting the conclusion that nothing proscribed remains.The role of the UN inspectors was not to search Iraq for WMD, but rather to verify whether Iraq had "declar[ed]" and "yield[ed]" all proscribed items to the UN inspectors for "destruction, removal, or rendering harmless, under international supervision" and "unconditionally undertake[n] not to use, develop, construct or acquire any of the [proscribed] items", pursuant to UNSCR 687 and related resolutions.
Paragraph 9 of resolution 1441 (2002) states that this cooperation shall be "active". It is not enough to open doors. Inspection is not a game of "catch as catch can".
President Bush tried to correct the pervasive mischaracterization of the UN inspectors' role by paraphrasing UNSCR 687 in the 2003 State of the Union:
The 108 U.N. inspectors ... were not sent to conduct a scavenger hunt for hidden materials across a country the size of California. The job of the inspectors is to verify that Iraq's regime is disarming. It is up to Iraq to show exactly where it is hiding its banned weapons, lay those weapons out for the world to see, and destroy them as directed. Nothing like this has happened.UNSCR 687 (1991) set the role of the UN inspectors in UNSCOM and UNMOVIC:
9. Decides, for the implementation of paragraph 8 above, the following:UNSCR 1441 (2002) reiterated the purpose of the inspections:
(a) Iraq shall submit to the Secretary-General, within fifteen days of the adoption of the present resolution, a declaration of the locations, amounts and types of all items specified in paragraph 8 and agree to urgent, on-site inspection as specified below;
(i) The forming of a Special Commission, which shall carry out immediate on-site inspection of Iraq's biological, chemical and missile capabilities, based on Iraq's declarations and the designation of any additional locations by the Special Commission itself;
(ii) The yielding by Iraq of possession to the Special Commission for destruction, removal or rendering harmless, taking into account the requirements of public safety, of all items specified under paragraph 8 (a) above, including items at the additional locations designated by the Special Commission under paragraph 9 (b) (i) above and the destruction by Iraq, under the supervision of the Special Commission, of all its missile capabilities, including launchers, as specified under paragraph 8 (b) above;
(iii) The provision by the Special Commission of the assistance and cooperation to the Director-General of the International Atomic Energy Agency required in paragraphs 12 and 13 below;
Determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions and recalling that the resolutions of the Council constitute the governing standard of Iraqi compliance,Leading up to Operation Desert Fox, on November 5, 1998, President Clinton had held Saddam to the same standard of compliance with UNSCOM pursuant to UNSCR 1205 (1998) that President Bush subsequently enforced with UNMOVIC pursuant to UNSCR 1441:
2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council;
9. Requests the Secretary-General immediately to notify Iraq of this resolution, which is binding on Iraq; demands that Iraq confirm within seven days of that notification its intention to comply fully with this resolution; and demands further that Iraq cooperate immediately, unconditionally, and actively with UNMOVIC and the IAEA;
A short while ago, the United Nations Security Council unanimously adopted a resolution [UNSCR 1205] condemning Iraq's intransigence and insisting it immediately resume full cooperation with the weapons inspectors -- no ifs, no ands, no buts about it. It is long past time for Iraq to meet its obligations to the world. After the Gulf War, the international community demanded and Iraq agreed to declare and destroy all of its chemical, biological and nuclear weapons capability and the missiles to deliver them, and to meet other U.N. Security Council resolutions. ... Now, the better part of a decade later, Iraq continues to shirk its clear obligations. Iraq has no one to blame but itself -- and the people of Iraq have no one to blame but Saddam Hussein -- for the position Iraq finds itself in today. Iraq could have ended its isolation long ago by simply complying with the will of the world. The burden is on Iraq to get back in compliance and meet its obligations -- immediately.Clinton had set a hard line with Operation Desert Fox due to Saddam's recidivist pattern of signaling cooperation in the face of American force and then subverting the inspections with UNSCOM. Bush carried forward Clinton's hard line to Operation Iraqi Freedom when Saddam resumed his pattern of signaling cooperation then subverting the inspections with UNMOVIC.
UNMOVIC reports throughout the UNSCR 1441 inspection period made clear Iraq had failed again to sufficiently account for proscribed items, including stocks, and cooperate to the mandated standard along with other disarmament violations. The declarations submitted by Iraq as the baseline-setting step of the disarmament process were unreliable. Iraq's unsubstantiated claims of production totals and unilateral destruction in the face of contradicting evidence were not proof.
An example of UNMOVIC reporting from the UNSCR 1441 inspection period is this statement by Hans Blix to the UN Security Council on January 27, 2003:
The nerve agent VX is one of the most toxic ever developed. Iraq has declared that it only produced VX on a pilot scale, just a few tons, and that the quality was poor and the product unstable.The four-month-long UNSCR 1441 inspection period - tacked onto the preceding eleven-and-a-half years Iraq had been obligated to comply and disarm - was more than enough time for UNMOVIC to test Saddam's compliance and confirm "Iraq ... remains in material breach of its obligations under relevant resolutions, including resolution 687" (UNSCR 1441). In comparison, Clinton had immediately ordered ODF when UNSCOM confirmed Iraq's material breach with a 3-week compliance test, stating, "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."
Consequently, it was said that the agent was never weaponized.
Iraq said that the small quantity of [the] agent remaining after the Gulf War was unilaterally destroyed in the summer of 1991.
UNMOVIC, however, has information that conflicts with this account. There are indications that Iraq had worked on the problem of purity and stabilization and that more had been achieved than has been declared. Indeed, even one of the documents provided by Iraq indicates that the purity of the agent, at least in laboratory production, was higher than declared.
There are also indications that the agent was weaponized.
UNSCR 1441 was "determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations". But when the mandated inspection period ended with Iraq failing UNMOVIC's compliance test in Saddam's "final opportunity to comply" (UNSCR 1441), Hans Blix asked for an indefinite number of additional months to change the UNMOVIC mission.
Blix agrees the credible threat of regime change provided by the OIF invasion force was necessary to compel even the deficient cooperation by Saddam's regime. He also admits the OIF invasion force could not be poised to attack indefinitely. Yet, even though the poised-to-attack OIF invasion force had failed to compel the requisite Iraqi cooperation for the UNSCR 1441 inspections, Blix's proposal relied on the further unreasonable presumption of an indefinitely sustained credible threat of regime change to enable a "reinforced system of ongoing monitoring and verification" for an indefinitely prolonged trial period. At the same time, Blix implied a willingness to tacitly comply with Saddam's undermining strategy by relaxing the burden of proof and taking the onus off of Iraq to prove compliance and placing it on the UN inspectors to demonstrate Iraqi possession, which would have fundamentally altered the "governing standard of Iraqi compliance" set by UNSCR 687.
Bush rightly recognized that the Blix alternative was impractical in its military requirements, did not adequately factor in the untrustworthiness of Iraq's basic declarations and UNMOVIC's short coverage due to Saddam's "denial and deception operations" (Duelfer Report), and risked a lowered standard of compliance that would not reliably resolve Saddam's "clear and present danger to the stability of the Persian Gulf and the safety of people everywhere" (Clinton).
In other words, Clinton's assessment of the UNSCOM inspections preceding ODF applied to the UNMOVIC inspections preceding OIF:
Saddam's deception has defeated their effectiveness. Instead of the inspectors disarming Saddam, Saddam has disarmed the inspectors.Setting aside the feasibility of his proposal, Blix has implied that with a grant of indefinite months, he would have found Saddam in compliance by "devis[ing] other ways in which UNMOVIC can gain confidence that Iraq’s declarations are correct and comprehensive" (Cluster Document). But lowering the bar from "provide the requisite information" (Cluster Document) to "devise other ways" opened the door to deviating from the strict standard of compliance mandated in the UNSC resolutions with a loosened ad hoc standard of proof. With Saddam in charge, we had to be sure. The ISG Duelfer Report confirms Saddam did not intend to comply with the mandated standard and strongly suggests the Blix alternative would have failed to make Iraq compliant and disarmed, for example:
Saddam had direct command of the Iraqi intelligence services and the armed forces, including direct authority over plans and operations of both. ... The IIS ran a large covert procurement program, undeclared chemical laboratories, and supported denial and deception operations.Notably, Western intelligence agencies failed to indicate the IIS "undeclared covert laboratories" (Duelfer Report) in the pre-war intelligence estimates. Nor were the UN inspectors informed of them as required by UNSCR 687: "The existence, function, and purpose of the laboratories were never declared to the UN" (Duelfer Report). The last safety net was the standard of compliance itself, mandated by UNSC resolution and enforced by 3 US presidents under US law. Had Bush allowed Blix to relax the burden of proof for Iraq, it's conceivable that UNMOVIC might have certified Saddam while the very Iraqi capability that was the highest priority to disarm after 9/11 passed through unchecked.
• Huwaysh instructed MIC [military-industrial complex] general directors to conceal sensitive material and documents from UN inspectors. This was done to prevent inspectors from discovering numerous purchases of illicit conventional weapons and military equipment from firms in Russia, Belarus, and the Former Republic of Yugoslavia.
Through an investigation of the history of Iraq’s bulk BW [biological weapons] agent stocks, it has become evident to ISG that officials were involved in concealment and deception activities.
• ISG judges that Iraq failed to comply with UNSCRs up to OIF by failing to disclose accurate production totals for B. anthracis and probably other BW agents and for not providing the true details of its alleged 1991 disposal of stocks of bulk BW agent.
• Officials within the BW program knowingly continued this deception right up to OIF and beyond, only revealing some details well after the conflict.
Operation Iraqi Freedom commenced on March 19, 2003, 4368 days after the adoption of UNSCR 687, 131 days after the adoption of UNSCR 1441, 112 days after the resumption of inspections in Iraq, and 12 days after UNMOVIC discharged its mandate from UNSCR 1441.
The regime change did not end the UNMOVIC mission in Iraq. UNMOVIC and IAEA concluded their mission in 2007 with UNSCR 1762.
Q: Did Iraq failing its compliance test justify the regime change?
One, proving Iraq was fully compliant with all of its ceasefire obligations was the prescribed measuring stick to determine whether Saddam was rehabilitated sufficiently to be trusted with the peace. It was also the necessary measuring stick for the threat posed by Iraq due to Saddam's "concealment and deception activities" (Duelfer Report) throughout the Gulf War ceasefire, including the final UNSCR 1441 inspection period. Hence, the compliance-based enforcement.
Answering the question of Iraq's proscribed items and activities was not guesswork. It was not even intelligence work, where Western intelligence was evidently outmatched by Iraqi counter-intelligence. Gauging Iraq's compliance with the "governing standard of Iraqi compliance" (UNSCR 1441) was the mandated way to answer the question. With the spectrum of mandates and success of Saddam's "concealment and deception activities" (Duelfer Report), which included hidden stocks, a large covert procurement program, and undeclared chemical and biological laboratories, Iraq's compliance with the UNSC resolutions was determined by necessity with measures other than demonstrated possession. The last time Saddam was asked the question of Iraq's proscribed items and activities, the UNMOVIC Cluster Document findings were his final answer.
The "clear and present danger to the stability of the Persian Gulf and the safety of people everywhere" (Clinton) was imputed from Iraq’s noncompliance with the UN mandates, not from demonstrated Iraqi possession of WMD stocks. Iraq's proscribed items and activities that could be demonstrated in hand were not the main threat because the violations that could be demonstrated could be corrected as mandated. Rather, Saddam's main threat was the proscribed items and activities that could not be accounted for due to Iraq's noncompliance with "denial and deception operations" (Duelfer Report). Demonstration of Iraq's noncompliance, e.g., the UNSCOM Butler Report and UNMOVIC Cluster Document, imputed continued intent and possession by Iraq.
The failure to prove Iraq was compliant and disarmed to the mandated standard meant Saddam's regime continued to be pegged to "the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security" (UNSCR 1441). Once Saddam pulled the enforcement trigger by failing his "final opportunity" (UNSCR 1441) to prove compliance with the Gulf War ceasefire, President Bush had to make his decision for OIF while weighing the threat of Iraq’s unaccounted for weapons and other violations of the ceasefire, the intelligence at hand, and Saddam's track record in light of the heightened threat consideration induced by 9/11.
Two, Bush’s decision either way was final. After Operation Desert Fox, the credible threat of regime change was the last remaining leverage to compel Saddam’s cooperation. The threat of regime change would no longer have been credible if it had been a dud when triggered by Saddam. Operation Iraqi Freedom carried forward President Clinton's justification for Operation Desert Fox:
When Saddam still failed to comply, we prepared to act militarily. It was only then at the last possible moment that Iraq backed down. It pledged to the UN that it had made, and I quote, a clear and unconditional decision to resume cooperation with the weapons inspectors.Calling off the regime change when Saddam pulled the enforcement trigger would have meant either a return to ‘containment’ or ending the Iraq enforcement altogether with a noncompliant Saddam. If returning to ‘containment’ was even feasible at that point, the ‘containment’ option was broken. The failure to follow through on the threat of regime change would have left only freeing Saddam.
... I made it very clear at that time what unconditional cooperation meant, based on existing UN resolutions and Iraq’s own commitments. And along with Prime Minister Blair of Great Britain, I made it equally clear that if Saddam failed to cooperate fully, we would be prepared to act without delay, diplomacy or warning.
... Now over the past three weeks, the UN 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 UN Secretary-General Annan. The conclusions are stark, sobering and profoundly disturbing.
... Saddam’s deception has defeated their effectiveness. Instead of the inspectors disarming Saddam, Saddam has disarmed the inspectors. 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. And so we had to act, and act now. Let me explain why. First, without a strong inspections system, Iraq would be free to retain and begin to rebuild its chemical, biological, and nuclear weapons programs in months, not years. Second, if Saddam can cripple the weapons inspections system and get away with it, he would conclude that the international community, led by the United States, has simply lost its will. He will surmise that he has free rein to rebuild his arsenal of destruction. And some day, make no mistake, he will use it again, as he has in the past. Third, in halting our air strikes in November, I gave Saddam a chance, not a license. If we turn our backs on his defiance, the credibility of U.S. power as a check against Saddam will be destroyed. We will not only have allowed Saddam to shatter the inspections system that controls his weapons of mass destruction program; we also will have fatally undercut the fear of force that stops Saddam from acting to gain domination in the region.
... But once more, the United States has proven that, although we are never eager to use force, when we must act in America's vital interests, we will do so.
Three, in hindsight, the ISG Duelfer Report shows that a free Saddam meant an unreconstructed Saddam rearmed with WMD. The Iraq Survey Group reported "Senior Iraqis—several of them from the Regime’s inner circle—told ISG they assumed Saddam would restart a nuclear program" and "In addition to preserved capability, we have clear evidence of [Saddam's] intent to resume WMD". That was the very condition that Saddam's compliance with the disarmament mandates of UNSCR 687 was purposed to cure as a necessary qualification for suspending the Gulf War short of regime change.
Saddam’s motive was defeating the US-led Iraq enforcement and rearming, not compliance and rehabilitation. In the 'containment' following ODF, as Clinton predicted, Saddam was already reconstituting Iraq’s long-range missile and NBC capabilities, with an active program in the IIS, in violation of the mandate that "Iraq shall unconditionally undertake not to use, develop, construct or acquire any of the [proscribed] items" (UNSCR 687). Clinton was also correct that Saddam intended to fully restore Iraq’s WMD, which Saddam believed was necessary for Iraq’s (his regime's) security, countering Iran, countering Israel, countering the US, and realizing his ambitions.
Full compliance with all the UN mandates, including the disarmament mandates of UNSCR 687, was required to prove the nature of Saddam's regime was changed. Violation of UNSCR 687 of any degree and kind was dispositive that Saddam was not rehabilitated. The retention by Saddam of the practice and intent to rearm under cover of "denial and deception operations" (Duelfer Report), confirmed by Saddam's noncompliance with the UNMOVIC inspections and corroborated by the ISG investigation, was the principal trigger for the regime change to "bring Iraq into compliance with its international obligations" (P.L. 105-235).
The UNMOVIC findings were not the only evidence of material breach, of course. At the decision point for OIF, Saddam was evidently noncompliant across the board with the "governing standard of Iraqi compliance" (UNSCR 1441), including the terrorism mandates of UNSCR 687 and humanitarian mandates of UNSCR 688. Saddam's terrorism and terroristic rule were each a trigger for OIF in their own right and also combined with Saddam's WMD threat to heighten the need for "full and immediate compliance" by Iraq with the disarmament mandates of UNSCR 687.
Four, the Gulf War ceasefire enforcement of the "governing standard of Iraqi compliance" (UNSCR 1441) was the defining UN enforcement of the post-Cold War. In his remarks to Pentagon personnel on February 17, 1998, Clinton warned against the broader consequences of tolerating Saddam's noncompliance:
If we fail to respond today, Saddam and all those who would follow in his footsteps will be emboldened tomorrow by the knowledge that they can act with impunity, even in the face of a clear message from the United Nations Security Council and clear evidence of a weapons of mass destruction program.The UN had been unreliable during the Clinton administration, and Bush tried to reform the UN as a credible enforcer for the 9/11 era. If the US had backed down when Saddam failed to comply, then UN enforcement of international norms with rogue actors and WMD proscription would have been undermined, perhaps beyond recovery.
Q: The reasons for OIF seemed to change. Was it about WMD or democracy?
A: OIF was about both. The issues of Iraq’s WMD and regime change were tied together. There was a bundle of reasons in the body of US law and policy and UNSC resolutions on Iraq - the short answer to ‘Why OIF?’ is ‘All of the above’.
On December 16, 1998, President Clinton explained the union of the issues with Operation Desert Fox:
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.Preceding ODF, on October 31, 1998, Congress, citing Saddam's humanitarian and disarmament violations, had made regime change a legal mandate with the Iraq Liberation Act of 1998 (Public Law 105-338):
SEC. 3. SENSE OF THE CONGRESS REGARDING UNITED STATES POLICY TOWARD IRAQ.Clinton explained the US policy when he signed the Iraq Liberation Act of 1998 into law:
It 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.
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.The regime change mandate affirmed Clinton’s conclusion that achieving Iraq's compliance with all relevant UNSC resolutions would require regime change either with Saddam voluntarily rehabilitating or, the much likelier way, Saddam's regime replaced. The source of the “clear and present danger to the stability of the Persian Gulf and the safety of people everywhere” (Clinton) was not Iraq’s WMD, but rather the nature of Saddam’s regime within and outside Iraq. Iraq’s WMD was a symptom only, albeit a very dangerous symptom, of the cancer afflicting Iraq: Saddam's rule, noncompliant and unreconstructed.
Following ODF, on August 2, 1999, Clinton reiterated the US policy on regime change in his last comprehensive update on Iraq's compliance to Congress:
We are convinced that as long as Saddam Hussein remains in power, he will continue to threaten the well-being of his people, the peace of the region, and vital U.S. interests. We will continue to contain these threats, but over the long term, the best way to address them is by encouraging the establishment of a new government in Baghdad.On June 26, 2000, Vice President Gore, the presumptive Democratic Party candidate for President, "reaffirmed the Administration's strong commitment to the objective of removing Saddam Hussein from power" and his own "desire to see a united Iraq served by a representative and democratic government" in a joint statement with leaders of the Iraqi National Congress (INC):
We will work toward the day when Iraq has a government worthy of its people, a government prepared to live in peace with its neighbors, and respects the rights of its citizens. We believe that a change of regime in Baghdad is inevitable, and that it is urgently incumbent on the world community to support the Iraqis who are working to ensure that change is positive. These Iraqis include the resistance inside the country, and those free Iraqis now in exile or in northern Iraq, who seek to improve the chances that the next government of Iraq will truly represent, serve, and protect all the Iraqi people.
The INC and the Vice President reaffirmed their joint desire to see a united Iraq served by a representative and democratic government responsive to the needs of its people and willing to live in peace with its neighbors.On September 12, 2002, President Bush reaffirmed to the UN General Assembly the American commitment to regime change with a compliant Iraq, which could include a compliant Saddam:
The Vice President reaffirmed the Administration's strong commitment to the objective of removing Saddam Hussein from power, and to bringing him and his inner circle to justice for their war crimes and crimes against humanity. Saddam's removal is the key to the positive transformation of Iraq's relationship with the international community and with the United States, in particular.
... The Vice President reaffirmed American concern for the welfare of the Iraqi people. ... He further emphasized the US concern for the safety and security of all the Iraqi people in accordance with UNSCR 688, which condemns Saddam Hussein's repression of the Iraqi people as a threat to regional stability.
If all these steps [to make Iraq compliant] are taken, it will signal a new openness and accountability in Iraq. And it could open the prospect of the United Nations helping to build a government that represents all Iraqis -- a government based on respect for human rights, economic liberty, and internationally supervised elections.When Saddam failed to comply volitionally in his "final opportunity to comply" (UNSCR 1441), deposing Saddam's regime was the preliminary step for the US-led, UN-mandated process to "bring Iraq into compliance with its international obligations" (P.L. 105-235). The objectives set by Clinton to resolve the Saddam problem were achieved through OIF: Iraq in compliance with the UNSC resolutions, Iraq at peace with its neighbors and the international community, and Iraq internally reformed with regime change.
... The United States has no quarrel with the Iraqi people; they've suffered too long in silent captivity. Liberty for the Iraqi people is a great moral cause, and a great strategic goal. The people of Iraq deserve it; the security of all nations requires it. Free societies do not intimidate through cruelty and conquest, and open societies do not threaten the world with mass murder. The United States supports political and economic liberty in a unified Iraq.
On December 15, 2010, Vice President Biden welcomed UNSCRs 1956, 1957, and 1958 on behalf of the UN Security Council, which formally recognized Iraq's compliance and terminated enforcement measures imposed on Iraq, including for UNSCR 687, subsequent to UNSCR 660 (1990).
For America the leader of the free world, the regime change that brought Iraq into compliance with its international obligations meant shepherding post-Saddam Iraq to a pluralistic liberal society, commonly called democracy.
Q: Was the invasion of Iraq perceived to be a nation-building effort?
A: Yes. OIF enforced the credible threat of regime change that enabled the "final opportunity" (UNSCR 1441) given Saddam to prove Iraq's compliance with the UN mandates. In the event that Saddam failed to comply with the UN mandates, Iraq would be made compliant following regime change with peace operations* that were “expected” in US law and policy. The UN position on post-war peace operations was also clear.
Congress made peace operations with Iraq a legal mandate for President Clinton in section 7 of the Iraq Liberation Act of 1998:
SEC. 7. ASSISTANCE FOR IRAQ UPON REPLACEMENT OF SADDAM HUSSEIN REGIME.On December 19, 1998, President Clinton affirmed the American commitment to "help a new leadership in Baghdad that abides by its international commitments":
It is the sense of the Congress that once the Saddam Hussein regime is removed from power in Iraq, the United States should support Iraq’s transition to democracy by providing immediate and substantial humanitarian assistance to the Iraqi people, by providing democracy transition assistance to Iraqi parties and movements with democratic goals, and by convening Iraq’s foreign creditors to develop a multilateral response to Iraq’s foreign debt incurred by Saddam Hussein’s regime.
[We] will stand ready to help a new leadership in Baghdad that abides by its international commitments and respects the rights of its own people. We hope it will return Iraq to its rightful place in the community of nations.On October 7, 2002, President Bush reaffirmed the American commitment to help Iraq after Saddam:
If military action is necessary, the United States and our allies will help the Iraqi people rebuild their economy, and create the institutions of liberty in a unified Iraq at peace with its neighbors.In Public Law 107-243 (2002), Congress "expected" the peace operations with Iraq that Congress had mandated in section 7 of the Iraq Liberation Act of 1998:
SEC. 4. REPORTS TO CONGRESS.* "Peace operations: (DOD) A broad term that encompasses multiagency and multinational crisis response and limited contingency operations involving all instruments of national power with military missions to contain conflict, redress the peace, and shape the environment to support reconciliation and rebuilding and facilitate the transition to legitimate governance. Also called PO. See also peace building; peace enforcement; peacekeeping; and peacemaking. Source: JP 3-07.3" (source)
(a) REPORTS.—The President shall, at least once every 60 days, submit to the Congress a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted in section 3 and the status of planning for efforts that are expected to be required after such actions are completed, including those actions described in section 7 of the Iraq Liberation Act of 1998 (Public Law 105–338).
Q: Did Bush lie his way to war with Iraq?
One, the law and policy of the Gulf War ceasefire plainly show the Iraq enforcement was compliance-based. The pre-war intelligence, no matter how precise, did not and could not trigger OIF. By procedure, only Iraq’s noncompliance could trigger enforcement, and only Iraq’s compliance could switch off the enforcement.
The prevalent myth that Operation Iraqi Freedom was based on a lie relies on a false premise that shifted the burden of proof from Iraq proving compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates. In fact, neither the intelligence nor demonstration of Iraqi possession was an element of the Gulf War ceasefire enforcement because it pivoted solely on whether Iraq proved compliance with the UNSC resolutions. The US as the chief enforcer of the UNSC resolutions held no burden of proof in the Iraq enforcement. From the outset of the Gulf War ceasefire, Saddam as the probationary party held the entire burden of proof to prove Iraq was fully compliant with UNSCRs 687, 688, and related resolutions. The question of "Where is Iraq's WMD?" was never for the US and UN to answer; it was always a question Saddam was required to answer according to UNSCR 687 to prove Iraq was disarmed.
OIF is often isolated out of context and misrepresented as a new policy by Bush. In fact, OIF was the coda of the US-led enforcement of the UNSC resolutions for Iraq that began when Saddam seized Kuwait in 1990 and continued through the subsequent Gulf War ceasefire. President Bush inherited Saddam's "clear and present danger to the stability of the Persian Gulf and the safety of people everywhere" (Clinton) and carried forward the Iraq enforcement from President Clinton. Demonstration of Iraqi possession of WMD was not necessary to confirm Saddam's material breach because, from the outset, Iraq's guilt of possession was established in the factual baseline of the Gulf War ceasefire as the foundational premise of the disarmament process. The basic presumption of the disarmament process was anywhere Iraq provided deficient account of its weapons imputed continued intent and possession. Thus, had Bush presented no intelligence on Iraq's weapons, the compliance-based enforcement procedure would have been the same as in December 1998, when Clinton cited neither the intelligence nor demonstrated Iraqi possession of WMD to justify Operation Desert Fox. Saddam was guilty until he proved Iraq was compliant. If Iraq was not compliant, then Saddam continued to be armed and dangerous.
Two, it is undisputed that Iraq was noncompliant at the decision point for Operation Iraqi Freedom. The "governing standard of Iraqi compliance" (UNSCR 1441) was mandated by UNSC resolution (see, at minimum, UNSCRs 687 and 688) and enforced by the President under US law (see, at minimum, P.L. 105-235 and P.L. 107-243).
On September 12, 2002, President Bush pledged to the UN General Assembly that all the Gulf War ceasefire UNSC resolutions would be enforced:
If the Iraqi regime wishes peace, it will immediately and unconditionally forswear, disclose, and remove or destroy all weapons of mass destruction, long-range missiles, and all related material[,] ... immediately end all support for terrorism and act to suppress it, as all states are required to do by U.N. Security Council resolutions[,] ... cease persecution of its civilian population, including Shi'a, Sunnis, Kurds, Turkomans, and others, again as required by Security Council resolutions[,] ... release or account for all Gulf War personnel whose fate is still unknown[,] ... return the remains of any who are deceased, return stolen property, accept liability for losses resulting from the invasion of Kuwait, and fully cooperate with international efforts to resolve these issues, as required by Security Council resolutions[,] ... immediately end all illicit trade outside the oil-for-food program[, and] ... accept U.N. administration of funds from that program, to ensure that the money is used fairly and promptly for the benefit of the Iraqi people.On October 16, 2002, Public Law 107-243 raised sections 1095 and 1096 of Public Law 102-190 (1991) and affirmed "that it is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced":
... The Security Council resolutions will be enforced -- the just demands of peace and security will be met -- or action will be unavoidable.
Whereas in December 1991 [per P.L. 102-190], Congress expressed its sense that it ‘‘supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 687 as being consistent with the Authorization of Use of Military Force Against Iraq Resolution (Public Law 102–1),’’ that Iraq’s repression of its civilian population violates United Nations Security Council Resolution 688 and ‘‘constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region,’’ and that Congress, ‘‘supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 688’’;On November 8, 2002, UNSCR 1441 also stressed UNSCRs 687 and 688 and "determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations":
... Whereas the United States is determined to prosecute the war on terrorism and Iraq’s ongoing support for international terrorist groups combined with its development of weapons of mass destruction in direct violation of its obligations under the 1991 cease-fire and other United Nations Security Council resolutions make clear that it is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced, including through the use of force if necessary;
Further recalling that its resolution 687 (1991) imposed obligations on Iraq as a necessary step for achievement of its stated objective of restoring international peace and security in the area,UNSCR 687 (1991) mandated Iraq to renounce all terrorism, declare and destroy all proscribed items under international supervision, and permanently eliminate its WMD-related capabilities:
... Deploring also that the Government of Iraq has failed to comply with its commitments pursuant to resolution 687 (1991) with regard to terrorism [and] pursuant to resolution 688 (1991) to end repression of its civilian population and to provide access by international humanitarian organizations to all those in need of assistance in Iraq,
... Determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions and recalling that the resolutions of the Council constitute the governing standard of Iraqi compliance,
1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991),
8. Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of:UNSCR 688 (1991) mandated Iraq to immediately end the repression of the Iraqi civilian population:
(a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities;
(b) All ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities;
9. Decides, for the implementation of paragraph 8 above, the following:
(a) Iraq shall submit to the Secretary-General, within fifteen days of the adoption of the present resolution, a declaration of the locations, amounts and types of all items specified in paragraph 8 and agree to urgent, on-site inspection as specified below;
10. Decides that Iraq shall unconditionally undertake not to use, develop, construct or acquire any of the items specified in paragraphs 8 and 9 above ...
12. Decides that Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapons-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above;
32. Requires Iraq to inform the Security Council that it will not commit or support any act of international terrorism or allow any organization directed towards commission of such acts to operate within its territory and to condemn unequivocally and renounce all acts, methods and practices of terrorism;
1. Condemns the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region;On April 19, 2002, the UN Commission on Human Rights condemned Saddam's regime pursuant to UNSCR 688:
2. Demands that Iraq, as a contribution to remove the threat to international peace and security in the region, immediately end this repression and express the hope in the same context that an open dialogue will take place to ensure that the human and political rights of all Iraqi citizens are respected;
3. Insists that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operations;
7. Demands that Iraq cooperate with the Secretary-General to these ends;
The [United Nations] Commission on Human Rights … Recalling: … [UNSCR] 688 (1991) of 5 April 1991, in which the Council demanded an end to repression of the Iraqi civilian population and insisted that Iraq cooperate with humanitarian organizations and that the human rights of all Iraqi citizens be respected … Strongly condemns: (a) The systematic, widespread and extremely grave violations of human rights and of international humanitarian law by the Government of Iraq, resulting in an all-pervasive repression and oppression sustained by broad-based discrimination and widespread terror.On March 7, 2003, UNMOVIC presented the 173-page Cluster Document to the UN Security Council with its finding of "about 100 unresolved disarmament issues" pursuant to UNSCR 687:
UNMOVIC evaluated and assessed this material as it has became available and ... produced an internal working document covering about 100 unresolved disarmament issues ...The UNMOVIC Cluster Document confirmed "Iraq ... remains in material breach of its obligations under relevant resolutions, including resolution 687" (UNSCR 1441) and triggered Operation Iraqi Freedom in March 2003 in the same way that the UNSCOM Butler Report confirmed Iraq's material breach and triggered Operation Desert Fox in December 1998.
... [for example] UNMOVIC has credible information that the total quantity of BW agent in bombs, warheads and in bulk at the time of the Gulf War was 7,000 litres more than declared by Iraq [and] ... With respect to stockpiles of bulk agent stated to have been destroyed, there is evidence to suggest that these was [sic] not destroyed as declared by Iraq.
... UNMOVIC must verify the absence of any new activities or proscribed items, new or retained. The onus is clearly on Iraq to provide the requisite information or devise other ways in which UNMOVIC can gain confidence that Iraq’s declarations are correct and comprehensive.
Three, albeit irrelevant to the enforcement procedure at the decision point for OIF, the post-war findings in the Iraq Survey Group Duelfer Report corroborated the confirmation by UNMOVIC that Iraq remained in material breach of UNSCR 687. The ISG qualified the Duelfer Report with the cautionary notes that much potential evidence was lost during the war and its aftermath, key regime officials were not cooperative, and suspect areas were found "sanitized". Therefore, what the ISG found in its post-war investigation is more telling than what the ISG did not find. Nonetheless, among Iraq's disarmament violations, the ISG found "a large covert procurement program" with "numerous purchases of illicit conventional weapons and military equipment" and "military reconstitution efforts [that] ... covered conventional arms, dual-use goods acquisition, and some WMD-related programs", "clear evidence of [Saddam's] intent to resume WMD" with "undeclared covert laboratories" and "preserved capability", "Saddam clearly intended to reconstitute long-range delivery systems and that the systems potentially were for WMD", and "denial and deception operations" (Duelfer Report).
Four, it is undisputed that Saddam was noncompliant on non-weapons mandates, such as illicit trade outside the Oil for Food program (which funded Saddam's weapons procurement) and humanitarian and terrorism standards. They were also enforcement triggers for the President "to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to ... enforce all relevant United Nations Security Council resolutions regarding Iraq" (P.L. 107-243). Saddam's non-weapons obligations are often overlooked, yet they were as serious as Iraq's weapons obligations. For example, the no-fly zones were the most visible, dangerous, invasive, and provocative component of the 'containment', yet the no-fly zones were not part of weapons-related enforcement. Rather, they helped enforce UNSCR 688, which demanded an immediate end to the repression of the Iraqi civilian population.
Five, the public controversy involves Bush's presentation of intelligence on latter Iraqi NBC stocks and programs, yet the pre-war intelligence that Bush presented was simply the intelligence that was available. Because of Saddam's track record, Clinton and Bush officials enforcing the Gulf War ceasefire were compelled to judge the intelligence in an unfavorable light for Iraq, and 9/11 obliged US officials to increase their wariness due to Saddam's belligerence and terrorism. Congressmen, Democrats and Republicans, who independently reviewed the pre-war intelligence in light of Saddam's track record largely shared Bush's determination. On March 23, 2004, Clinton Secretary of Defense William Cohen gave the Clinton administration perspective to the 9/11 Commission:
The war against Iraq has highlighted the challenge of obtaining reliable intelligence against a so-called “hard target.” While some charge that the Bush Administration exaggerated or manipulated the available intelligence, the fact is that all responsible officials from the Clinton and Bush administrations and, I believe, most Members of Congress genuinely believed that Saddam Hussein had active WMD programs.In 2005, the bipartisan Silberman-Robb WMD Commission, while sharply critical of the pre-war intelligence, "found no indication that the Intelligence Community distorted the evidence regarding Iraq's weapons of mass destruction. What the intelligence professionals told [the President] about Saddam Hussein's programs was what they believed." Then in 2008, a Democrat-slanted Senate Select Committee on Intelligence, although overtly partisan, analyzed pre-war statements by Bush administration officials and concluded they were largely "substantiated by intelligence", and found no manipulated intelligence nor political pressure placed on intelligence analysts.
In their defense, the criticized intelligence agencies were unfairly judged by a burden of proof that was outside the Iraq enforcement procedure. To their credit, although imprecise, the pre-war intelligence correctly indicated Iraq was violating the Gulf War ceasefire. The imprecision of the intelligence was due to Saddam's effective "denial and deception operations" (Duelfer Report). The ability of IIS counter-intelligence to adapt to Western intelligence-gathering was a known issue in the disarmament process and accounted for with Iraq’s presumption of guilt, standard of compliance, and burden of proof. Again, the pre-war intelligence did not and could not trigger enforcement. By procedure, OIF was triggered by Iraq's material breach of its obligations under the UNSC resolutions.
The condition overlooked in the discourse on OIF is the intelligence could be off the mark and Saddam could be guilty of the material breach that triggered enforcement at the same time because the "governing standard of Iraqi compliance" (UNSCR 1441) was set by the UNSC resolutions, not the intelligence. UNSCOM and UNMOVIC tested Iraq's compliance accordng to UNSCR 687, not the intelligence. Iraq failed to prove to the UNSCR 1441 inspections that Saddam was compliant and disarmed to the standard mandated by UNSCR 687 and related resolutions. Then, notwithstanding the shortcomings in the pre-war intelligence, "ISG judge[d] that Iraq failed to comply with UNSCRs" (Duelfer Report).
Six, OIF opponents who accuse Bush of lying his way to war with Iraq cite the ISG finding, "While it appears that Iraq, by the mid-1990s, was essentially free of militarily significant WMD stocks, Saddam’s perceived requirement to bluff about WMD capabilities made it too dangerous to clearly reveal this to the international community, especially Iran."
However, they overlook President Clinton's compliance-based Iraq enforcement escalated after the mid-1990s, peaking with Operation Desert Fox in December 1998, and the presumption of guilt for Iraq carried over to the post-ODF 'containment'. To fulfill its weapons obligations, Iraq was required to prove it was disarmed with the particular steps that Saddam had agreed to abide by at the outset of the Gulf War ceasefire. The standard of compliance was set by UNSCR 687, which mandated Iraq to declare and yield all its proscribed items to the UN inspectors for "destruction, removal, or rendering harmless, under international supervision" so that all of it would be accounted for sufficiently to verify Saddam was disarmed. The supervisory mandate was critical because any unsupervised method, including the self-reported ridding touted by OIF opponents, could be exploited by Saddam to retain and hide weapons. Thus, any less than the mandated compliance kept Iraq at its default of presumed guilt. OIF opponents also overlook UNSCR 687 mandated "Iraq shall unconditionally undertake not to use, develop, construct or acquire any of the [proscribed] items" and proscribed more than "militarily significant WMD stocks". Again, due to the spectrum of mandates and the success of Saddam's "concealment and deception activities" (Duelfer Report), the "clear and present danger to the stability of the Persian Gulf and the safety of people everywhere" (Clinton) was imputed from Iraq’s noncompliance, not from demonstrated Iraqi possession of WMD stocks. Saddam's "bluff" worked: Iraq's failure to comply with UNSCOM and UNMOVIC imputed continued intent and possession. And, OIF opponents have cherry-picked the Duelfer Report; Saddam more than bluffed - the ISG findings are rife with disarmament violations.
Seven, Bush made mistakes in the public presentation of the case against Saddam, but properly enforced the UNSC resolutions. Bush’s mistakes were improperly characterizing the pre-war intelligence as "evidence" rather than its normal and proper role as indicators and, at times, presenting the pre-war intelligence estimates inapposite of their actual, circumscribed role in the operative enforcement procedure. However, Bush correctly and consistently stated that enforcement of Iraq's "final opportunity to comply with its disarmament obligations under relevant resolutions of the Council" (UNSCR 1441) depended on Iraq’s compliance.
For example, OIF opponents who claim the pre-war intelligence estimates were the casus belli cite Secretary of State Powell's speech to the UN Security Council on February 6, 2003. But in fact, before he presented the pre-war intelligence, Powell reiterated "serious consequences" would be triggered "if Iraq did not comply" with "its obligations, stretching back over 16 previous resolutions and 12 years":
This is important day for us all as we review the situation with respect to Iraq and its disarmament obligations under U.N. Security Council Resolution 1441. Last November 8, this council passed Resolution 1441 by a unanimous vote. The purpose of that resolution was to disarm Iraq of its weapons of mass destruction. Iraq had already been found guilty of material breach of its obligations, stretching back over 16 previous resolutions and 12 years. Resolution 1441 was not dealing with an innocent party, but a regime this council has repeatedly convicted over the years. Resolution 1441 gave Iraq one last chance, one last chance to come into compliance or to face serious consequences. No council member present in voting on that day had any illusions about the nature and intent of the resolution or what serious consequences meant if Iraq did not comply.Secretary Powell's ultimatum in 2003, "Resolution 1441 gave Iraq one last chance, one last chance to come into compliance or to face serious consequences," carried forward President Clinton's ultimatum in 1998, "The international community gave Saddam one last chance to resume cooperation with the weapons inspectors" and ''All of the members of the Council agree that failure to do so will result in the severest consequences for Iraq [per UNSCR 1154]'' (Clinton). The casus belli for Operation Desert Fox based on Iraq's noncompliance was triggered by the UNSCOM Butler Report finding that Iraq had failed the test of its compliance with UNSCR 687 mandated by UNSCRs 1154, 1194, and 1205. The casus belli for Operation Iraqi Freedom based on Iraq's noncompliance was triggered by the UNMOVIC Cluster Document finding that Iraq had failed the test of its compliance with UNSCR 687 mandated by UNSCR 1441, while also factoring in Saddam's continuing violation of ceasefire obligations such as the terrorism mandates of UNSCR 687 and the humanitarian mandates of UNSCR 688.
To prevent the presentation error, Bush should have followed Clinton's precedent in the public presentation. For Operation Desert Fox, President Clinton had cited only to Iraq’s evident noncompliance in terms of deficient cooperation and account of weapons to explain, “This situation presents a clear and present danger to the stability of the Persian Gulf and the safety of people everywhere.” Clinton's citation of noncompliance as the justification for bombing Iraq matched the operative enforcement procedure. When Clinton endorsed Bush's Iraq enforcement, Clinton stayed consistent with his own compliance-based enforcement with Iraq by citing the threat, heightened by the 9/11 attacks, of Saddam's "unaccounted for stocks of biological and chemical weapons".
For OIF, Bush properly established the trigger for enforcement was Iraq’s noncompliance with the UNSC resolutions as Clinton had done for ODF. But in a departure from Clinton's public presentation, Bush additionally cited the pre-war intelligence, despite that the intelligence, by the operative enforcement procedure, could not trigger enforcement. OIF opponents pounced on Bush’s mistakes of presentation to shift the burden of proof from Iraq proving compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates. However, the presentation error does not change that Iraqi possession was established in the factual baseline of the Gulf War ceasefire as the foundational premise of the disarmament process and the only legal and reliable way to know Saddam was disarmed, short of regime change, was Iraq proving compliance with the standard mandated by the UNSC resolutions enforced under US law. Saddam's noncompliance - including Iraq's basic failure to declare and destroy all its as-of-Gulf-War WMD under international supervision - was confirmed by UNMOVIC with the Cluster Document, which imputed continued intent and possession by Iraq, whereupon Bush properly applied the operative enforcement procedure.
The truth is at the decision point for OIF, Saddam was rearming and evidently noncompliant on the weapons and non-weapons mandates of the UNSC resolutions.
Q: Was Operation Iraqi Freedom legal?
A: Yes (see A1), more likely than not (see A2), and yes (see A3).
The United States became the chief enforcer of the UNSC resolutions for Iraq beginning in 1990 with the UN demand for Saddam to cease his aggression with Kuwait. The Iraq enforcement crossed the war threshold in 1991 with the US-led military enforcement of the UNSC resolutions in the Gulf War. The Gulf War was only suspended by a ceasefire with strict conditions for Iraq. Iraq's ceasefire obligations under the UNSC resolutions were designed to assure the international community that Iraq was compliant and disarmed so that Saddam could be trusted with the peace. The initial expectation was Iraq's ceasefire obligations would be satisfied within 1-2 years.
However, after Iraq agreed to the ceasefire and the Gulf War military threat was withdrawn, Saddam defied the compliance and disarmament process. As non-military enforcement measures proved inadequate to compel Saddam, it soon was apparent that Saddam's cooperation, let alone compliance required a credible military threat. The US, as chief enforcer of the UNSC resolutions, shouldered the responsibility of supplying the credible military threat necessary to compel Saddam's cooperation.
Limited military enforcement measures also proved inadequate to compel Saddam's compliance, and the penultimate military enforcement step of bombing Iraq was passed with Operation Desert Fox in December 1998. Meanwhile, the Iraq Liberation Act of 1998 established the solution for the threat of Saddam’s noncompliance was US-assisted regime change per section 3 followed by US-led peace operations per section 7 to “bring Iraq into compliance with its international obligations” (P.L. 105-235). After the ODF bombing campaign failed to move Saddam to comply and disarm, the stage was set for OIF: the only remaining military enforcement measure was the threat of regime change via ground invasion, which President Bush exercised in 2002.
A common misconception is the practical character of the various US-led enforcement actions between the Gulf War and Operation Iraqi Freedom was also the legal character of the Gulf War ceasefire enforcement. For example, some OIF opponents equate the legal limit of the US-led ceasefire enforcement with the Operation Desert Fox bombing campaign and the counter-fire from coalition craft enforcing the no-fly zones.
In fact, while their practical characters differed, the legal character of Operation Iraqi Freedom was the same as the legal character of the no-fly zones and Operation Desert Fox. The law and policy basis of all the US-led enforcement actions was "to use all necessary means" (UNSCR 678) to bring Iraq into compliance with the Gulf War ceasefire - "Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein" (UNSCR 1441).
To enforce the UNSC resolutions for Iraq pursuant to P.L. 102-1 and UNSCR 678, the invasion threshold was passed with the Gulf War, which was only suspended contingent on Iraq's compliance with the ceasefire. Because the breach of a ceasefire restores the offender's status to the war suspended by that ceasefire, restoring Iraq's status to the Gulf War was always the intrinsic outer marker of "the use of all necessary means" (P.L. 102-190) to enforce the Gulf War ceasefire should Saddam fail to fulfill "the obligations on Iraq contained therein".
For over a decade, the chief enforcer of the Gulf War ceasefire did everything it could to compel Iraq's compliance short of resuming the Gulf War. The Operation Desert Fox bombing in December 1998 used up the penultimate enforcement measure to drive Saddam to comply. The ad hoc 'containment' that followed ODF was, in effect, a euphemism for the failed enforcement of Iraq's compliance. President Clinton conveyed the Gulf War ceasefire enforcement to President Bush with the strategy of indefinitely 'containing' Saddam's "clear and present danger to the stability of the Persian Gulf and the safety of people everywhere" (Clinton) while actively and openly working to overthrow Saddam's regime pursuant to the Iraq Liberation Act of 1998, at the same time "stand[ing] ready to help a new leadership in Baghdad that abides by its international commitments" (Clinton) pursuant to section 7 of Public Law 105-338. By 2001, however, the 'containment' of Saddam was evidently failing, if it ever worked at all. Then the 9/11 attacks shifted the threat calculation for the practically uncontained Saddam with increased focus on Iraq's violation of the terrorism mandates of UNSCR 687.
While updated with the heightened threat consideration induced by 9/11, P.L. 107-243 and UNSCR 1441 were not novel. They reiterated the standing law and policy basis of the over-decade-long US-led enforcement of the UNSC resolutions for Iraq in the context of Saddam's track record. The change after 9/11 was practical, not legal. With the lesser enforcement measures exhausted, the enforcers of the Gulf War ceasefire were forced to confront what was always the intrinsic outer marker in the law and policy of the ceasefire: restoring Iraq's status to the Gulf War with a credible threat of regime change in order to compel Saddam to fulfill Iraq's ceasefire obligations in his "final opportunity to comply" (UNSCR 1441). When it was evident in March 2003 that Saddam would not comply even under threat of regime change, the alternative to Operation Iraqi Freedom was compromising the "governing standard of Iraqi compliance" (UNSCR 1441) to free a noncompliant Saddam.
A1: There is no domestic legal controversy. According to American law, the whole 1990-2011 Iraq mission, including the 1991-2003 ceasefire enforcement and 2003-2011 peace operations, was legal.
Under Presidents HW Bush and Clinton, Congress had made clear the President was authorized per Public Law 102-1 (1991) to use military force to enforce Iraq's compliance with all relevant UNSC resolutions. UNSCR 678 (1990) provided the carrying UN authorization for military enforcement. UNSCRs 687 (1991) and 688 (1991) provided the foundational standard of compliance for the Gulf War ceasefire.
Then in 1998, preluding Operation Desert Fox, Congress passed Public Law 105-235, which states:
Whereas Iraq’s continuing weapons of mass destruction programs threaten vital United States interests and international peace and security: Now, therefore, be itIn 2002, preluding Operation Iraqi Freedom, Congress passed Public Law 107-243, which states:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Government of Iraq is in material and unacceptable breach of its international obligations, and therefore the President is urged 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.
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.Also preluding OIF, the UN Security Council adopted UNSCR 1441 (2002), which states:
(a) AUTHORIZATION.—The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
The Security Council,The threat posed by Saddam's regime to "vital United States interests and international peace and security" (P.L. 105-235) was a standing threat that President Bush inherited from his two immediate predecessors. Hence, "the continuing threat posed by Iraq" in Public Law 107-243 was carried forward from "Iraqi actions pose a continuing unusual and extraordinary threat to the national security and foreign policy of the United States" in President Clinton's official notice to Congress on July 28, 2000.
Recalling all its previous relevant resolutions, in particular its resolutions 661 (1990) of 6 August 1990, 678 (1990) of 29 November 1990, 686 (1991) of 2 March 1991, 687 (1991) of 3 April 1991, 688 (1991) of 5 April 1991, 707 (1991) of 15 August 1991, 715 (1991) of 11 October 1991, 986 (1995) of 14 April 1995, and 1284 (1999) of 17 December 1999, and all the relevant statements of its President,
... Recognizing the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security,
… Recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area,
... Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein,
Determined to secure full compliance with its decisions,
Acting under Chapter VII of the Charter of the United Nations,
1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991);
2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council;
The continuing threat to US national security was intrinsic with Iraq's material breach of the Gulf War ceasefire. As such, the mandates to "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq" (P.L. 107-243) were national and international aspects of the same problem, with the same solution: "Iraq fully comply with all of its obligations under Security Council resolutions" (Clinton).
In March 2003, the decision for Operation Iraqi Freedom was made by President Bush when Saddam's continued material breach of the Gulf War ceasefire was confirmed by UNMOVIC's finding of "about 100 unresolved disarmament issues" (Cluster Document) in Iraq's "final opportunity to comply with its disarmament obligations under relevant resolutions of the Council" (UNSCR 1441).
Lawsuits against OIF have claimed Public Law 107-243 did not rise to a Congressional declaration of war or that Congress improperly delegated the power to declare war to President Bush. Yet P.L. 102-1 and P.L. 107-243 fulfilled the "specific statutory authorization" standard of 50 USC 1541 (1973 War Powers Act), which is legally equivalent to a Congressional declaration of war. In fact, the statutory authorization for the 1991-2003 ceasefire enforcement and 2003-2011 peace operations in Iraq conformed to the modern norm for US military deployment; the last Congressional declaration of war was in World War 2. In addition, the standing US presidential position is that Congressional sanction is not required under the Constitution for the President to exercise Article II authority to uphold US national security. Lawsuits against OIF have also attempted to carve out a novel and nowhere recorded distinction between the deployment of ground forces and every other military application the President was authorized to "[determine] to be necessary and appropriate" under P.L. 107-243. In short, the lawsuits against OIF have been emotionally forceful but legally flimsy and thus dismissed as ‘political question’, meaning whatever the political merit, Bush’s decision for OIF was legally within the Constitutional scope of the Executive authority.
OIF was well grounded in the national interest, multiple US statutes and UNSC resolutions, as well as modern foreign-policy precedent. P.L. 107-243 included counter-terrorism grounds for Saddam's "final opportunity to comply" (UNSCR 1441), and under President Clinton, Congress had recognized the President's authority to carry out global counter-terrorism under Article II of the Constitution rather than statutory authority. Though not generally cited, the President held standing authority to respond militarily to Iraq firing on American craft enforcing the no-fly zones pursuant to UNSCR 688. P.L. 107-243 and UNSCR 1441 included strong humanitarian grounds. In 1999, while still firing on Iraqi air defenses to enforce the no-fly zones in the wake of Operation Desert Fox, Clinton cited humanitarian grounds with the NATO treaty and Article II when he bypassed Congress and the UN Security Council for the deployment of airpower and ground forces in the Serbian regime change. Arguably, the Congressional sanction of P.L. 102-1 and P.L. 107-243 was not necessary in the first place because UNSCR 678 and Article II provided sufficient authority for the President to enforce the UNSC resolutions for Iraq, like President Truman deployed US forces to Korea to enforce UN mandates without first obtaining a specific US statutory authorization.
A2: While there is no domestic legal controversy over OIF, there is an international legal controversy over the US-led military enforcement of the Gulf War ceasefire between 1991 and 2003, including the no-fly zones, Operation Desert Fox, and Operation Iraqi Freedom - i.e., the episodic view that UN authorization was required for each US military action, 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 enforcement of the Gulf War ceasefire UNSC resolutions.
International law is murky on the question of President Bush's decision for Operation Iraqi Freedom without a new UN authorization due to the over-decade-long precedent of US-led military enforcement of the UNSC resolutions for Iraq and the immature, ‘gray area’ legal character and sovereign-based, ad hoc nature of UN enforcement.
It is undisputed that Iraq was in material breach of the Gulf War ceasefire in March 2003. The UN Security Council had decided "Iraq has been and remains in material breach of its obligations under relevant resolutions", UNMOVIC had found "about 100 unresolved disarmament issues", and the UN Commission on Human Rights had condemned the "systematic, widespread and extremely grave violations of human rights and of international humanitarian law by the Government of Iraq".
The disagreement at the decision point for OIF was not substantive. Saddam was guilty. Rather, the Council dispute involved a procedural issue: whether the US President or the UN Security Council, which included Saddam's ally in Russia, held the ultimate authority to order the enforcement of the threat of regime change in response to Saddam's noncompliance in his "final opportunity to comply" (UNSCR 1441).
The objections to OIF were carried forward from opponents' objections to ODF and Clinton's military enforcement, including the no-fly zones, with Iraq. The claim that OIF was illegal under international law is based on language in UNSCR 1441 and other UNSC resolutions that the UNSC remained “seized on the matter", which OIF opponents have interpreted with the episodic view that each US military action with Iraq required a new UN authorization. However, the UNSC permanent members opposed to a strict standard of compliance and enforcement for Iraq also held separate grievances with US-led international enforcement and were implicated in the Oil for Food scandal.
During his enforcement of the Gulf War ceasefire, President Clinton overcame the impasse in the UN Security Council by setting the precedent for US-led military enforcement without new UN authorization with the view that Iraq's breach of the Gulf War ceasefire, rather than concurrent specific UN authorization, activated the authority for military enforcement. According to Clinton, the sovereign and ultimate authority to deploy US forces "in response to Iraqi breaches of its obligations" was vested in the President by the Constitution and the US law and UNSC resolution in the original Gulf War authorization. Clinton explained his vested authority to enforce the Gulf War ceasefire in a letter to Congress on December 18, 1998:
At approximately 5:00 p.m. eastern standard time on December 16, 1998, at my direction, U.S. military forces conducted missile and aircraft strikes in Iraq in response to Iraqi breaches of its obligations under resolutions of the United Nations Security Council. ... [This action] is consistent with and has been taken in support of numerous U.N. Security Council resolutions, including Resolutions 678 and 687, which authorize U.N. Member States to use "all necessary means" to implement the Security Council resolutions and to restore peace and security in the region and establish the terms of the cease-fire mandated by the Council, including those related to the destruction of Iraq's WMD programs. ... I directed these actions pursuant to my authority under the Constitution as Commander in Chief and as Chief Executive, and to conduct U.S. foreign relations, as well as under the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) enacted in January 1991.Public Law 102-1, enacted on January 12, 1991, states:
The President is authorized ... to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 ...UNSCR 678, adopted on November 29, 1990, states:
Determined to secure full compliance with its decisions, Acting under Chapter VII of the Charter, ... Authorizes Member States ... 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.The standing legal authority for military enforcement with Iraq that President Clinton inherited from President HW Bush was also inherited by President Bush from President Clinton. On March 17, 2003, Bush carried forward Clinton's vested authority to enforce the Gulf War ceasefire:
Under Resolutions 678 and 687 -- both still in effect -- the United States and our allies are authorized to use force in ridding Iraq of weapons of mass destruction. This is not a question of authority, it is a question of will.According to the American progressive view, OIF technically was not a new war at all, but rather a resumption of the Gulf War due to Iraq's failure to satisfy the terms of the Gulf War ceasefire - "Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein" (UNSCR 1441).
For ODF, Public Law 105-235 set the condition of "material and unacceptable breach" that activated the authority for military enforcement; then the UNSCOM Butler Report confirmed the material breach of UNSCR 687. For OIF, P.L. 107-243 and UNSCR 1441 summarized the standing US laws and UNSC resolutions on Iraq, reiterated the legal authority for military enforcement and "governing standard of Iraqi compliance", respectively, and reset the material breach status for Iraq; then the UNMOVIC Cluster Document confirmed the material breach of UNSCR 687. UNSCR 1441 also "recall[ed]" UNSCR 678 from the original Gulf War authorization.
In the procedural controversy, I believe, on balance, the American progressive view wins out over the episodic view due to Iraq's material breach of the ceasefire, the over-decade-long precedent set by the US-led enforcement of the UNSC resolutions for Iraq pursuant to UNSCR 678, and the UN's structural dependence on sovereign authorities, especially American sovereign authority, for the military enforcement of UN mandates.
For over a decade with Saddam's noncompliant regime as well as other international enforcements, the US had consistently deployed the military with sovereign authority, and only at times with concurrent specific UN authorization. The US-led multilateral coalitions that conducted international enforcements had been galvanized by and organized around American leadership rather than UN imprimatur, a norm that continued with the US-led multilateral coalition in OIF.
Other than Operation Desert Fox, the nearest precedent for OIF is the US-led military intervention in the Balkans crisis under President Clinton. Like OIF, the Balkans intervention included airpower, ground forces, and a regime change followed by an occupation. Like OIF, the Balkans intervention contained a prominent humanitarian component. Like OIF, the Balkans intervention was not green-lit by the UNSC largely because, like OIF, the Balkans intervention was opposed by Russia. However, unlike OIF, the Balkans intervention did not rest on longstanding policy and practice and a priori or de facto legal authority.
A3: There is neither a domestic nor international legal controversy over the 2003-2011 US-led occupation mandated to "take all necessary measures to contribute to the maintenance of security and stability in Iraq". As in the occupation following the Serbian regime change, the peace operations following regime change in Iraq were conducted with UN authorization. For example, see UNSCR 1511 (2003):
13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure;Also see UNSCRs 1483 (2003)*, 1546 (2004), 1637 (2005), 1723 (2006), 1790 (2007), and the 17NOV08 agreement between the US and Iraq.
* UNSCR 1483, adopted 22 May 2003, merits special attention because it marked the transitional meeting of the 1991-2003 ceasefire enforcement and 2003-2011 peace operations with the core compliance and nation-building elements of both missions.
Q: If Bush inherited from Clinton the progressive view that the Gulf War authorization was operative for Iraq's ongoing breach of the Gulf War ceasefire and a new UN authorization for military enforcement was not needed, and given that UNSCR 1441 merely reiterated standing UNSC resolutions, then why did Bush go to the UN?
A: Because President Bush’s primary intent was not to invade Iraq. Rather, Bush’s motive was to resolve the Saddam problem expeditiously and conclusively with Iraq's full compliance with the Gulf War ceasefire UNSC resolutions.
It only looks as though Bush was intent on invading Iraq because a credible threat of regime change was the necessary piece to compel Saddam’s cooperation with the inspections. Inserting UNMOVIC into Iraq required the US going to the UN, and UNMOVIC functioning in Iraq required a credible threat of regime change. However, as Bush explained on October 7, 2002, Saddam could have prevented regime change by complying with Iraq's ceasefire obligations:
America is challenging all nations to take the resolutions of the U.N. Security Council seriously. And these resolutions are clear. In addition to declaring and destroying all of its weapons of mass destruction, Iraq must end its support for terrorism. It must cease the persecution of its civilian population. It must stop all illicit trade outside the Oil For Food program. It must release or account for all Gulf War personnel, including an American pilot, whose fate is still unknown. By taking these steps, and by only taking these steps, the Iraqi regime has an opportunity to avoid conflict. Taking these steps would also change the nature of the Iraqi regime itself. America hopes the regime will make that choice. ... I hope this will not require military action, but it may. ... I have asked Congress to authorize the use of America's military, if it proves necessary, to enforce U.N. Security Council demands. Approving this resolution does not mean that military action is imminent or unavoidable. The resolution will tell the United Nations, and all nations, that America speaks with one voice and is determined to make the demands of the civilized world mean something.The record shows, although President Clinton had declared with Operation Desert Fox that “Iraq has abused its final chance” and then "a change of regime in Baghdad is inevitable", President Bush chose to give Saddam another opportunity to stay in power by proving compliance with all of Iraq’s ceasefire obligations. The centerpiece of the "final opportunity" (UNSCR 1441) for Saddam to switch off the threat of regime change was his second final chance to comply with UNSCR 687, which Saddam squandered with UNMOVIC finding "about 100 unresolved disarmament issues". If Saddam had accepted the lifeline from the chief enforcer of the Gulf War ceasefire to fully comply with all of Iraq's obligations under Security Council resolutions, then the Gulf War would not have resumed with Operation Iraqi Freedom in order to "bring Iraq into compliance with its international obligations" (P.L. 105-235).
Galvanized by the 9/11 attacks, Bush also engaged the United Nations on UNSCR 1441 with Clinton's hope that a united front by the international community and a strong resolution of the defining international enforcement of the post-Cold War would restore the UN as an effective enforcer on rogue actors, terrorism, and WMD proliferation.
Q: Did Operation Iraqi Freedom really cost X trillions of dollars?
According to the Congressional Research Service report, The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11 (March 29, 2011), which measured the "cumulative total appropriated [for Iraq and Afghanistan] ... war operations, diplomatic operations, and medical care for Iraq and Afghan war veterans", covering DOD, State/USAID, and VA Medical costs, the combined cost for Iraq totaled 805.5 billion dollars through FY2011 and 823.2 billion dollars estimated through FY2012. Within the combined cost, the DOD portion totaled 757.8 billion through FY2011 and 768.8 billion dollars estimated through FY2012. DOD funding for OIF peaked at 138.5 billion dollars in FY2008 for the Counterinsurgency "Surge" and dropped sharply every year thereafter to a low of 11 billion dollars in FY2012, the last year of OIF (also known as Operation New Dawn).
That's not cheap by any stretch of the imagination, but it's also not X trillions of dollars.
For further perspective, according to the Congressional Research Service report, Costs of Major U.S. Wars (June 29, 2010), the FY2008 peak year spending of 138.5 billion dollars for OIF was 1% of GDP. By that admittedly narrow metric, the only cheaper US wars by peak year spending have been Operation Enduring Freedom and the Gulf War. The next cheapest US war by peak year spending is the Spanish American War, which cost 1.1% of GDP in 1899. That fact is not dispositive about the cost of OIF, of course; however, it does illustrate relative dollar figures don’t look the same as isolated dollar figures.
Q: Was Operation Iraqi Freedom a strategic blunder or a strategic victory?
A: Operation Iraqi Freedom was a strategic victory.
President Bush handed OIF to President Obama having resolved the festering Saddam problem (not a moment too soon, according to the ISG Duelfer Report), revitalized international enforcement in the defining international enforcement of the post-Cold War, and proved the mettle of American leadership and devastated the terrorists with the Counterinsurgency "Surge". The emerging pluralistic, liberalizing, compliant post-Saddam Iraq provided the US with a keystone "strategic partner" to reform the region.
Obama should have built upon the hard-won foundational progress made under Bush in geopolitically critical Iraq. However, instead of staying the course from Bush like President Eisenhower stayed the course from President Truman at the turning point of the Cold War, Obama committed the strategic blunder of disengaging from US-Iraqi affairs at a critical stage of Iraq's post-Surge development, passive-aggressively bungling the SOFA negotiation with Iraq, and abandoning the Bush Freedom Agenda. The premature departure of US forces removed America's protection at the same time Iraq's vicinity was growing dangerously unstable as the Arab Spring disintegrated, particularly in neighboring Syria. In the singular pivotal moment that sure-handed American leadership could have redirected the current course of history, Obama's feckless 'lead from behind' approach to the Arab Spring, instead, opened great gaps for the terrorists to resurge. Iraq is suffering the consequences.
Misinformation and mischaracterization have distorted the public's understanding of the context, stakes, and achievements of the Gulf War ceasefire enforcement that President Bush carried forward from President Clinton and the groundbreaking peace operations by the US military in post-Saddam Iraq. The corrupted public perception of the Iraq mission has enabled President Obama's elementary, catastrophic errors, undermined the enforcement of international norms, and curtailed the further development of peace operations.
Despite the revisionist nostalgia for Saddam's regime by some, the right answer for Iraq is neither Saddam’s “systematic, widespread and extremely grave violations of human rights and of international humanitarian law ... resulting in an all-pervasive repression and oppression sustained by broad-based discrimination and widespread terror” (UN Commission on Human Rights) nor the terrorists and terroristic insurgents, including Saddam, his sons, and their loyalists, who wracked post-Saddam Iraq.
The right answer is (or tragically, was) a “new Iraqi government, a government ready to live in peace with its neighbors, a government that respects the rights of its people” (Clinton) with America “support[ing] Iraq’s transition to democracy by providing immediate and substantial humanitarian assistance to the Iraqi people” (Iraq Liberation Act) and leading “a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq … for the purpose of ensuring necessary conditions for … key humanitarian and economic infrastructure” (UNSCR 1511).
As President Clinton forecast with Operation Desert Fox, “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.”
By carrying forward Clinton’s enforcement of the Gulf War ceasefire, Bush led America to “shape a future more peaceful than the past” and “stand strong against the enemies of peace” as befitting the leader of the free world. OIF was a hard and costly struggle against ruthless enemies whose purposeful strategy for countering the US-led peace operations was to create maximal mayhem for Iraq, terrorize the Iraqi people, ambush peace operators, and misrepresent the mission with intensive propaganda. However, by the time Obama took office in January 2009, the mission had progressed to the stage where “In Iraq, we see the promise of a multiethnic, multisectarian democracy … poised to play a key role in the region if it continues its peaceful progress” (Obama).
Security is the necessary condition for securing and building the peace, and under the umbrella of vital American security, Iraq had turned the corner when Bush handed OIF over to Obama.
To wit, in May 2011, President Obama marked Iraq's "promise of a multiethnic, multisectarian democracy ... poised to play a key role in the region if it continues its peaceful progress":
Indeed, one of the broader lessons to be drawn from this period is that sectarian divides need not lead to conflict. In Iraq, we see the promise of a multiethnic, multisectarian democracy. The Iraqi people have rejected the perils of political violence in favor of a democratic process, even as they’ve taken full responsibility for their own security. Of course, like all new democracies, they will face setbacks. But Iraq is poised to play a key role in the region if it continues its peaceful progress. And as they do, we will be proud to stand with them as a steadfast partner.In the same vein, the "U.S.-Iraqi Relations" section of the State Department's U.S. Embassy in Baghdad website anticipated in 2011, "Iraq emerge as a strategic partner in a tumultuous region ... that can act as a force for moderation ... in the national security interests of the United States":
After a long and difficult conflict, we now have the opportunity to see Iraq emerge as a strategic partner in a tumultuous region. A sovereign, stable, and self-reliant Iraq that can act as a force for moderation is profoundly in the national security interests of the United States and will ensure that Iraq can realize its full potential as a democratic society. Our civilian-led presence is helping us strengthen the strong strategic partnership that has developed up to this point.President Bush was right to enforce the Gulf War ceasefire and then stay in Iraq to secure the peace the same way the US stayed to secure the peace in Europe and Asia after World War 2. When Bush left office, the Iraq mission was a success.
President Obama was wrong to disengage from Iraq prematurely. America's protection was needed for the continued progression of Iraq’s pluralistic liberal reform and constructive role in the Middle East and the welfare of the Iraqi people. Instead, the feared danger of Obama's feckless 'lead from behind' approach to the Arab Spring and irresponsible exit from Iraq is being realized.
The decision for Operation Iraqi Freedom was right on the law and justified on the policy, yet distorted in the politics, despite that primary sources easily accessed on-line provide a straightforward explanation of the mission. Basic essential sources for understanding OIF in the proper context include the 1990-2002 UNSC resolutions for Iraq (at minimum, see UNSCRs 687, 688, and 1441), Public Law 107-243 (the 2002 Congressional authorization for use of military force against Iraq), Public Law 105-235 ("Iraqi Breach of International Obligations", 14AUG98), President Clinton's December 1998 letter to Congress on the legal authority for Operation Desert Fox, February 1998 warning on Iraq to Pentagon personnel, and December 1998 announcement of ODF (the penultimate military enforcement step that set the baseline precedent for OIF), President Bush's September 2002 background paper and remarks to the United Nations General Assembly and excerpts from the 2003 State of the Union, the March 2003 statement of the Atlantic Summit, the April 2002 UN Commission on Human Rights situation report on Iraq pursuant to UNSCR 688, the November 2007 Iraqi Perspectives Project report ("Saddam and Terrorism: Emerging Insights from Captured Iraqi Documents") pursuant to UNSCR 687, the March 2003 UNMOVIC Cluster Document ("Unresolved Disarmament Issues Iraq’s Proscribed Weapons Programmes", summary) pursuant to UNSCR 687 that triggered the final decision for OIF, and the Iraq Survey Group Duelfer Report.
Perspective on Operation Iraqi Freedom (table of sources, including citations in this post);
Regime Change in Iraq from Clinton to Bush (law school paper with endnotes);
A problem of definition in the Iraq controversy: Was the issue Saddam's regime or Iraq's demonstrable WMD? (historical context);
10 year anniversary of the start of Operation Iraqi Freedom: thoughts (retrospective survey).