Watching the Chilcot Inquiry this morning, I realized that although Tony Blair did follow Bush down a yellow brick road, he did, at least, follow the rules of his own government and he did consult the appropriate agencies. Looking back at our own process, particularly the part that had to do with the Law, I was struck with the differences. The landmarks in the US are below:
| September 14, 2001 | US CONGRESS: AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES |
| That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. | |
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| September 25, 2001 | OLC DOJ: THE PRESIDENT’S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM |
| 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. | |
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| October 2, 2002 | US CONGRESS: AUTHORIZATION FOR THE USE OF MILITARY FORCE AGAINST IRAQ |
| SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS.
The Congress of the United States supports the efforts by the President to–
AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES – The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to–
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| October 23, 2002 | OLC DOJ: AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ |
| 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. | |
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| November 8, 2002 | UN SECURITY COUNCIL: UNITED NATIONS SECURITY COUNCIL RESOLUTION 1441 |
| Resolution 1441 stated that Iraq was in material breach of the ceasefire terms presented under the terms of Resolution 687. Iraq’s breaches related not only to weapons of mass destruction, but also the known construction of prohibited types of missiles, the purchase and import of prohibited armaments, and the continuing refusal of Iraq to compensate Kuwait for the widespread looting conducted by its troops during the 1991 invasion and occupation. It also stated that "…false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations." The resolution text was drafted jointly by the United States and the United Kingdom, the result of eight weeks of tumultuous negotiations, particularly with Russia and France. France questioned the phrase "serious consequences" and stated repeatedly that any "material breach" found by the inspectors should not automatically lead to war; instead the UN should pass another resolution deciding on the course of action. In favour of this view is the fact that previous resolutions legitimizing war under Chapter VII used much stronger terms, like "…all necessary means…" in Resolution 678 in 1990 and that Resolution 1441 stated that the Security Council shall "remain seized of the matter." | |
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| November 8, 2002 | OLC DOJ: EFFECT OF A RECENT UNITED NATIONS SECURITY COUNCIL RESOLUTION ON THE AUTHORITY OF THE PRESIDENT UNDER INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ |
| 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. | |
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| December 7, 2002 | OLC DOJ: 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. | |
Within the week of the September 11, 2001 attack on New York, Congress authorized the President to use military force broadly against anyone involved in attacking us. The Administration quickly obtained an opinion from the DoJ Office of Legal Counsel that significantly broadened Bush’s powers ["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 "]. In so far as we knew at that time, Iraq was not part of that attack nor part of our Agenda in responding. We didn’t hear about Iraq until the SOTUS when Bush talked about the "Axis of Evil" on January 29, 2002. Looking back, the OLC opinion of September 23, 2002 laid the base for what was to come. Since the opinion contained the highlighted phrases, the wishes of the Admnistration must’ve been communicated to the OLC.
From where we sat in 2002, the focus was on our War in Afghanistan. We didn’t really notice Bush’s introduction of what became known as the Bush Doctrine at his graduation speech at West Point on June 1, 2002. Then on September 8, 2002, members of the Administration hit the airways in unison with their campaign for war with Iraq, followed by Bush’s Speech to the UN on September 12, 2002. By October 2, 2002, he had gotten Congressional Authorization to use force against Iraq. Again, he turned to the DoJ OLC. Notice the wording – "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." Like the earlier OLC Memo, it says that the President’s war powers already exist and are only "supplemented" rather than granted by Congressional Authorization. Finally, in spite of the Congressional injunction to work through the UN Security Council, the OLC adds, "or would be justified as anticipatory self-defense."
By November 8, 2002, the UN Security Council passed UN 1441 – Iraq’s last chance to comply with inspections. While the wording was strong, their intent was that the decision about what to do if Hussein did not fully comply rested with the UN Security Council [in spite of the US and UK attempt to make it a "do or die" resolution]. The OLC opinion was published the same day as the Security Council Resolution. It said that President Bush was not bound by the UN – or, I suppose, the UN Charter. A month later, the OLC added a caveat [requested by the OVP], any false statement or omission by Iraq constituted a "material breach." How either the OVP or the OLC thought they had the authority to interpret a UN Resolution is beyond my understanding.
This is obviously a game of cat and mouse, using these OLC opinions to stay one step ahead of any constraints on their march to invade Iraq. I didn’t bother to comment on the logic of these OLC opinions, because there really isn’t any. They are pronouncements that start with a conclusion, then wrap various words around it. From first to last, they represent a period in American history in which the Rule of Law was suspended. The Law was represented by an idiosyncratic Junior Professor who was a member of the Federalist Society, wrote his opinions outside the public dialog, and seemed to answer to no other legal authority. These opinions were obviously designed to block any constraints on the wishes of the Administration by the rest of our government or the world [UN].
Mickey, this is a marvelous service your are doing on this inquiry and all the background. You’re right up there with our hero(ine) bloggers.
Yes, it is, and yes, you are. Please keep it up. This stuff appears nowhere else!
[…] to struggle with. They just generated Memos invalidating Congress, the UN, and International Law [the whims of power…, the crime of aggression…]. Our process wasn’t flawed, it was absent. Throughout the […]