I guess on July 4^th, we usually look back at our country’s origins, but I prefer to look at our more recent unresolved history.

The First Gulf War may have chased Iraq’s Saddam Hussein from Kuwait and decimated his army, but it didn’t cool his heels. He was as difficult afterward as before, resisting the UN Cease Fire mandate for weapons inspection whenever possible. President George H.W. Bush tasked the CIA to organize resistance to his regime. The Project for the New American Century, a neoconservative think-tank, wrote Clinton urging regime change in Iraq. In October 1998, President Clinton signed the Iraq Liberation Act which authorized support of anti-Hussein groups, and in December bombed Hussein’s military sites [Operation Desert Fox]. When the Bush/Cheney Administration came into office in 2001, there were frequent discussions of war with Iraq behind closed doors, and after 911 it appeared as if it were just a matter of time before Bush would find a way to invade the country to depose Saddam Hussein. His problem – Saddam Hussein hadn’t done anything to justify an invasion other than act like a jerk, beat his chest, and rattle his sabers. As it turned out, he wasn’t capable of doing much more than that anyway.

Three months after al Qaeda’s September 11^th, 2001 bombing of the World Trade Towers in New York, Bush gave his first State of the Union Speech and included Iraq in what he called The Axis of Evil – Iraq, Iran, and North Korea. Three months after that speech, President George Bush and England’s Prime Minister, Tony Blair, met at Bush’s Crawford Texas ranch and made a private pact for a joint invasion. The only issue was how to justify their war – how to make it legal.

We don’t know much about the deliberative process in the US [because they haven’t told us about it]. We just know what they did. Two weeks after 911, the OLC DOJ declared that the Congressional authorization for attacking Afghanistan gave the President broad military powers, and Cheney et al apparently wanted him to exert those powers by going directly to war with Iraq, skipping Congress and the UN altogether.

Blair couldn’t get away with skipping steps. Regime Change was never seen as a case for war [Casus Belli] in the UK [or anywhere else in the world, for that matter]. Blair needed to seek UN approval. So after a media blitz by Cheney, Powell, and Rice a week before, Bush made a speech on September 14, 2002 to the UN accusing Iraq of not only non-compliance, but with having restarted their WMD Program and suggesting an alliance with al Qaeda. But we know that the die was already cast for war from the leaked Downing Street Memos [see below]. Within several weeks, Congress authorized using force in Iraq with certain conditions [e.g. a UN Mandate]. Again, Bush obtained an opinion from the OLC DOJ invalidating the Congressional conditions. A month later, the UN passed a last chance resolution for Iraq, but stopped short of making it an automatic authorization for use of force if Hussein didn’t comply. Again, Bush obtained an OLC DOJ opinion invalidating his being constrained by the the UN Resolution. The legal issues were dealt with by a couple of unknown lawyers in the Office of Legal Counsel in the Department of Justice. Most of us didn’t even know that office was there, much less about their legal memos. The legality of the war wasn’t exactly part of the process, more convincing Congress and the UN.

In the UK, the process was different. Thanks to the Chilcot Inquiry into the Iraq War, we’re learning a lot more about what went on – particularly this week with more documents being declassified. Although Bush and Blair had privately agreed to invade Iraq, Blair needed a valid reason. Lord Peter Goldsmith, the British Attorney General, was very clear on that point [06/30/2002], the mandate for the use of force had to be a new UN resolution specifically authorizing military action. He made that point repeatedly [06/30/2002, 10/21/2002, 11/11/2002, 12/19/2002, 01/14/2003, 01/30/2003, 02/12/2003], even after the indecisive UN Resolution [UN 1441]. Tony Blair was in a bind. He apparently agreed with Bush and wanted to go to war to depose Hussein but he didn’t have the legal backing. Yet he continued to pledge to join the US. When he got wind that Bush was thinking about skipping the UN, he flew to the US [CAMP DAVID 09/08/2002] and convinced Bush to go to the UN, again reportedly pledging the UK support.

As you read through the time-line below, the tension is palpable. At one extreme, Vice President Cheney and the other neoconservatives are for pressing ahead, basically ignoring our obligations to the UN. It was, after all, the "New American Century." On the other extreme, Lord Peter Goldsmith was sticking to the Law as it was written – the UN Security Council had the final say in approving armed conflict with a Rogue State. In between, Bush and Blair seemed to have been of one mind from the start, but were dealing with different forces in their respective cabinets. Right now, the British are up in arms about Tony Blair’s visit to Washington on January 31, 2003. In a recently released Memo from the day before, Lord Goldsmith reminded Blair of the need to get a new UN Resolution. Yet in the official notes from that visit: "Manning records the president – in a minute previously disclosed – telling Blair that military action would be taken with or without a second security council resolution and the bombing would begin in mid-March 2003. The note records Blair’s reaction: "’The prime minister said he was solidly with the president’."

The afternoon deliberations further reaffirm my decision to avoid Law School. Lord Goldsmith’s logic is based on the parsing of the meaning of certain words in UN 1441 – ‘assessment,’ ‘consider,’ etc. He is a very bright man, a master of argument, and implicitly denying any allegation that he was pressured to support the case for the use of force. Yet this seems to be an important fact relating to influence:

Lord Goldsmith met senior US officials and lawyers – including national security adviser Condoleezza Rice and senior State Department legal adviser Will Taft – in Washington on February 10. He said they had all been clear that President George Bush’s one "red line" in the negotiations on 1441 was that they should not "concede a veto" to the French on military action – something which they were adamant had not happened.
"It was hard to believe that, given what I had been told about the one red line that President Bush had, that all these experienced lawyers and negotiators in the United States could actually have stumbled into doing the one thing they had been told must not happen," he said. Two days later, in discussion with his legal assistant in London, he finally came to the conclusion that a second resolution was not necessary and he should revise his earlier draft opinion.

I will await others’ opinion of his argument and his decision. It has to do with the British response, not ours.

I’ll defer my own conclusions until after the July 4^th celebration. For now, here’s the time-line with the new stuff added: