While I doubt that anyone reading this thinks that our invasion of Iraq was grounded in any genuine threats to our safety, we’re now in a position to look into whether that fact is going to be swept under the rug or examined formally. Recently, I was looking over John Yoo’s OLC Memos coming from the DoJ in the leadup to the invasion. For review:
| OLC: THE PRESIDENT’S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM warpowers925 |
| The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. September 25, 2001 |
| OLC: AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ iraq-opinion-final.pdf |
| The President possesses constitutional authority to use military force against Iraq to protect United States national interests. This independent constitutional authority is supplemented by congressional authorization in the form of the Authorization for Use of Military Force Against Iraq Resolution. Using force against Iraq would be consistent with international law because it would be authorized by the United Nations Security Council or would be justified as anticipatory self-defense.
October 23, 2002 |
| UN: UNSCR 1441 transcript |
| UN Resolution insisting on full inspections in Iraq
November 8, 2002 |
| OLC: EFFECT OF A RECENT UNITED NATIONS SECURITY COUNCIL RESOLUTION ON THE AUTHORITY OF THE PRESIDENT UNDER INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ iraq-unscr-final.pdf |
| United Nations Security Council Resolution 1441 does not alter the legal authority, under international law, granted by existing U.N. Security Council resolutions to use force against Iraq.
November 8, 2002 |
The campaign for war started September 8th, 2002 with t.v. appearances by Cheney, Romsfeld, Rice, and Powell. President Bush addressed the UN General Assembly 4 days later. In the background, Yoo’s Memo was laying a legal foundation for our coming invasion [October 23rd], while we were publicly going to the UN. The UN Security Council responded to the allegations with UNSCR 1441 which imposed a strict inspection scedule on Iraq. Notice that there was an OLC Opinion the same day [November 8th, 2002] as the UN Resolution invalidating its hold on our decision making.
But I missed one of Yoo’s Memos last time around, December 7, 2002. The UN Security Council Resolution [1441] called for the immediate resumption of inspections in Iraq. They were begun on November 27th and Iraq submitted its Report on December 7th. Here’s Yoo’s memo from that same day. Notice who had requested the opinion – David Addington, Vice President Gheney’s Counsel.
| WHETHER FALSE STATEMENTS OR OMISSIONS IN IRAQ’S WEAPONS OF MASS DESTRUCTION DECLARATION WOULD CONSTITUTE A “FURTHER MATERIAL BREACH” UNDER U.N. SECURITY COUNCIL RESOLUTION 1441 |
| False statements or omissions in Iraq’s weapons of mass destruction declaration would by themselves constitute a “further material breach” of United Nations Security Counsel Resolution 1441.
December 7, 2002
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MEMORANDUM OPINION FOR THE COUNSEL TO THE VICE PRESIDENT
You have asked whether the Government of Iraq will have committed a “further material breach” of its international legal obligations, as that term is defined in paragraph 4 of United Nations (“U.N.”) Security Council Resolution 1441 (“UNSCR 1441”), if it makes false statements or omissions in the declaration required by paragraph 3 of that resolution.1 In paragraph 3, the Security Council required that Iraq report on all aspects of its weapons of mass destruction (“WMD”) programs. Paragraph 4 finds that false statements or omissions in Iraq’s paragraph 3 declaration and failure by Iraq to comply and cooperate with UNSCR 1441 would constitute a further material breach. We conclude that false statements or omissions by themselves represent a material breach of the Security Council resolution. We have addressed the meaning of U.N. Security Council resolutions regarding Iraq in previous opinions. See generally Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Authority of the President Under Domestic and International Law to Use Military Force Against Iraq at 30, 35-42 (Oct. 23, 2002) (“Iraq Opinion”); Memorandum for Alberto R. Gonzales, Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Effect of a Recent United Nations Security Council Resolution on the Authority of the President Under International Law to Use Military Force Against Iraq at 2 (Nov. 8, 2002). As the Security Council itself has recognized, Iraq is currently in material breach of pre-existing Security Council resolutions related to its development of WMD programs, its repression of its civilian population, and its threat to international peace and security in the region. S.C. Res. 1441, ¶ 1. Violation of those resolutions authorizes the United States to use force against Iraq in order to enforce the resolutions and restore international peace and security to the region. Iraq Opinion at 17-29. As we have advised, the President (who represents the United States in its foreign affairs) may make the determination whether Iraq has committed a material breach of the U.N. Security Council resolutions regarding Iraq…
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In retrospect, it’s fairly obvious what was happening. Once the Bush Administration came out swinging [September 8th], the invasion was in the cards. John Yoo was churning out legal justifications for the invasion in anticipation of anything that might interfere with their plans. When the UN passed a stiff resolution for inspections, Yoo published a same day response that the UN Resolution did not bind President Bush’s decisions about invading. On the same day that Hussein reported to the UN, Yoo declared that any false statements were a cause for war, and further, that our President could declare what constituted an infraction.
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