The Chilcot Inquiry reminds me that we had a legal process to get to Iraq, such as it was. Some time back, I summarized the Office of Legal Counsel Legal Memos from 2001-2003 [link]. If you look them over, there are a number that are still secret [in red]. The public ones are uncolored. And those obtained by FOIA are in blue. A number of them have been withdrawn, principally the Memos that have to do with suspending the Geneva Conventions and the Torture Memos [with a line through them]. The attention of this post is focused on four John Yoo Memos that have to do with the War Powers and the Invasion of Iraq. Notice the pattern:
| September 14, 2001 | US CONGRESS: AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES |
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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. | |
Here, within a couple of weeks of the September 11th attack, Congress acted quickly to give a broad authorization to the President to respond militarily. So why did we need a OLC legal opinion? If you read the synopsis, this Congressional authorization is changed into Congress acknowledging "this inherent executive power" – essentially declaring Congress superfluous. Then comes a phrase [preemptively] from the Bush Doctrine that won’t even be talked about for another nine months – "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." Says who?
| 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. | |
This time, the OLC went even further. Again when Congress specifically authorizes the use of force in Iraq, Congress is marginalized as "supplemental" to the President’s "independent authority." Moreover, the Congressional Authorization goes out of its way to prescribe acting through the United Nations Security Council. In the OLC opinion, the authorization by the UN Security Council is assumed to have already occurred.
| November 8, 2002 | UN SECURITY COUNCIL: UNITED NATIONS SECURITY COUNCIL RESOLUTION 1441 |
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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. | |
In the earlier two memos, the OLC has essentially nullified the Congressional Constitutional powers – US Constitution: Article 1 Section 8: The Congress shall have power to … declare war … Here, the OLC takes on the UN. First, they declare that UNSCR 1441 doesn’t alter UNSCR 678, which they consider to still be in play – the authorization for the Gulf War in 1991. Then they paradoxically pronounce on the conditions in UNSCR 1441, a resolution that they’d already said didn’t matter. What absolute silliness! Since when does the Department of Justice in the US have the authority to interpret UN Resolutions?
These OLC Opinions are as far out of line as the already withdrawn memos on torture. They just declare that the Congressional Power to declare war isn’t in the Constitution – which it is. If you read the full text of the Memo, it makes no real sense. Yoo might as well have said, "Because I say so." In the last three OLC Opinions, the OLC holds itself capable of interpreting United Nations Security Council decisions. Again, the text of the opinions are just legalese, and never address the source of the authority for the DoJ to even rule on UN Resolutions [because there is no such authority].
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