Regime Change in Iraq from Clinton to Bush
PREFACE: Below is my National Security Law seminar term paper, which was my final assignment in law school. The footnotes from my term paper are incorporated as endnotes. My paper addresses the legality of Operation Iraqi Freedom under American law only, specifically the case and precedent established by President Clinton and carried forward by President Bush. My paper does not address the international legal controversy (which I discuss here at A2) - i.e., the episodic view that demanded specific UN authorization for each US military action and erased (for some critics) Iraq's presumption of guilt, 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 the enforcement of the Gulf War ceasefire UNSC resolutions.
Go here for the companion piece to this post, my explanation of the public controversy over Operation Iraqi Freedom. Go here for a table of sources, including this academic paper summarizing the continuity of counter-terrorism policy from Clinton to Bush. Go here for my retrospective on the 10th anniversary of Operation Iraqi Freedom. Go here for my FAQ-style explanation of the law and policy, fact basis of Operation Iraqi Freedom.
Enjoy:
Eric
Go here for the companion piece to this post, my explanation of the public controversy over Operation Iraqi Freedom. Go here for a table of sources, including this academic paper summarizing the continuity of counter-terrorism policy from Clinton to Bush. Go here for my retrospective on the 10th anniversary of Operation Iraqi Freedom. Go here for my FAQ-style explanation of the law and policy, fact basis of Operation Iraqi Freedom.
Enjoy:
From: Eric
To: Eric's National Security Law professor
Re: Regime Change in Iraq from Clinton to Bush
Date: May 11, 2012
“We will never lower our heads as long as we live, even if we have to destroy everybody."
-- Saddam Husayn [sic], January 1991 1
PROLOGUE:
President Bush erred by deviating from President Clinton’s carefully hewn strategy on Iraq. Substantively, Bush’s Iraq policy was grounded in the same legal bases for military action that had been developed and utilized by Clinton. Indeed, the circumstances within Iraq that had compelled President Clinton to green-light Operation Desert Fox in December 1998 were not substantially different than the circumstances that compelled President Bush to green-light Operation Iraqi Freedom in March 2003. Iraq defied the ultimatums of both American presidents in the same manner, thus twice failing its “final chance” to comply with multiple United Nations Security Council (UNSC) resolutions with verification by UNSCOM inspectors in 1998 and UNMOVIC inspectors in 2002-03.
The Duelfer report findings of 2004, largely ignored within a toxic political discourse, corroborated President Clinton's contentions that Saddam Hussein intended to rebuild his proscribed weapons programs once the sanctions had been defeated, retained his long-term interest in a nuclear program in order to make Iraq a great regional power and to protect Iraq’s interests from foreign interference, and had continued to develop long-range delivery systems. 2
However, President Bush, while relying on the same legal framework for military action used by President Clinton, presented to the public a different case for military action against Iraq than President Clinton had used in 1998. President Clinton, notwithstanding his failure to resolve the Iraq problem, deserves credit for resting his public case for military action on Iraq’s failure to meet its burden of proof, irrespective of Iraq’s store of weaponry, thus ensuring his Iraq policy matched the legal framework of the UNSC resolutions and the matching Congressional acts. Under President Clinton, the burden of proof stayed with the intended and proper party: Iraq.
The foundational premises of the UNSC resolutions were Iraq’s unconditional cooperation and the burden of proof belonged solely to Iraq - not to the United Nations, nor to the United States and her allies. Iraq’s regular failure to cooperate unconditionally was, by itself, an ongoing material breach of the UNSC resolutions. President Bush, however, shifted the burden of proof in the political discourse to the United States with his warnings about existing stockpiles and active programs in Iraq when he should have followed President Clinton’s lead and rested his case for military action on Iraq’s demonstrated noncompliance with the UNSC resolutions. 3
President Bush may have believed the argument was politically necessary to rally the international community (for example, since the late 1990s, UNSC permanent members France, Russia, and China, possibly influenced by the Oil-for-Food scandal, had protested the U.S.-led enforcement of the UNSC resolutions) 4, and he may have sincerely believed Iraq had used the unsupervised years in between inspections to rebuild its proscribed weapons programs, but Bush’s decision was legally imprudent.
In the political discourse, President Bush’s claim of affirmative knowledge of stockpiles and active programs allowed critics to relieve Iraq’s burden to prove compliance and shifted the burden onto the United States to prove the existence of those stockpiles and active programs in Iraq.
If President Bush had simply followed President Clinton's case for military action and added the weight of the broad mandate provided by the Authorization of the Use of Military Forces of September 25, 2001 (Public Law 107-40), Bush could have achieved the same result without losing the essential thread of the legal case for military action. 5 President Bush’s historic error in judgment notwithstanding, the legal tripwire to start Operation Iraqi Freedom remained unchanged from the trigger for President Clinton to order Operation Desert Fox: Iraq’s material breach of the UNSC resolutions on multiple fronts.
CLINTON:
Excerpts from the Statement by the President from the Oval Office, December 16, 1998:
President Clinton established that the failure of Iraq to cooperate with the weapons inspectors and meet its burden of proof, irrespective of Iraq’s actual possession of proscribed weapons, compelled military action due to “a clear and present danger to the stability of the Persian Gulf and the safety of people everywhere.” Moreover, President Clinton defined the continued existence of Saddam Hussein’s regime, irrespective of its compliance with the UNSC resolutions or actual possession of proscribed weapons, as a humanitarian crisis and collective security threat.
President Clinton’s announcement of Operation Desert Fox from the Oval Office is the best statement of authority for the deployment of the nation’s strongest military option against Iraq in December 1998, short of introducing ground forces or deploying a nuclear weapon, because Clinton did not seek additional authorization from Congress or the UNSC. His view was that the legal authority to conduct military action against Iraq was fully vested in his office.
In a comprehensive letter informing Congress of the situation in Iraq on November 5, 1998, President Clinton clarified both his legal authority and the limit of his duty to Congress with the first sentence following the salutation: “Consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) and as part of my effort to keep the Congress fully informed, I am reporting on the status of efforts to obtain Iraq's compliance with the resolutions adopted by the United Nations Security Council (UNSC).” 7
P.L. 102-1, passed on January 12, 1991, stated, “The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678.” 8
UNSC Resolution 678, adopted on November 29, 1990, stated, “[a]cting under Chapter VII of the Charter . . . [a]uthorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, 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.” 9
Finally, Article 42 of Chapter VII of the United Nations Charter states, “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” 10
In other words, President Clinton recognized that the legal authority to deploy the United States military to enforce the UNSC resolutions on Iraq had been bestowed on his office by statute before he had been elected the President of the United States.
President Clinton’s November 5 letter and, indeed, his December 16 speech from the Oval Office seemed deliberately calculated to convey in wording and imagery that the authority for enforcing the UNSC resolutions and confronting Iraq belonged entirely to the office of the President. The letter to Congress merely fulfilled the reporting requirement in P.L. 102-1. No additional permission was requested or needed by the President to order Operation Desert Fox’s extensive bombing of Iraq.
Unfortunately, Operation Desert Fox’s exclusive reliance on airpower, the penultimate enforcement measure before deploying ground forces, utterly failed to convince Saddam Hussein to acquiesce to the UNSC resolutions or cause permanent damage to Iraq’s military infrastructure. 11
According to a New York Times report from August 13, 1999, “the Iraqis have proved more resilient than expected. They have quickly repaired damage done to air-defense weapons, forcing the Americans to bomb some targets over and over. They have even rebuilt some of the factories, barracks and other sites destroyed in December's raids, including buildings at the Al Taji missile complex, one of the critical targets, according to Defense officials.” 12
Perhaps sensing the limit of American resolve, Saddam Hussein’s belligerence increased after Operation Desert Fox. According to a Congressional issue brief on October 16, 2002, “[o]fficial Iraqi media reported on January 3, 1999 that President Saddam Hussein condemned the no-fly zones and said his people would resist them with “bravery and courage.” The Iraqi President followed up by offering a $14,000 bounty to any unit that shot down an allied plane and an additional $2,800 reward for capturing an allied pilot.” 13
Since the no-fly zones had been established in 1991 to enforce UNSC resolution 688, which demanded an immediate end to the repression of the Iraqi civilian population, Iraq had not stopped firing on the allied aircraft patrolling the no-fly zones. However, as the threat to allied aircraft increased after Operation Desert Fox, including radar locks and surface-to-air missiles, the allied counter-fire also increased against Iraqi anti-aircraft defenses. In response, the allied rules of engagement were relaxed to include all Iraqi anti-aircraft defenses, not only the specific unit that had fired at an allied plane. Saddam Hussein took advantage of the heightened allied self-defense measures by co-locating his anti-aircraft systems with civilian populations in order to produce casualties for international propaganda use. 14
President Clinton continued bombing in Iraq after Operation Desert Fox in order to enforce the no-fly zone. The airpower operation in Iraq carried over into the Bush administration. 15 In the waning months of the Clinton administration, it seemed that the United States had played its trump card, failed, and the endgame favored Saddam Hussein’s brinkmanship.
The New York Times report of August 13, 1999 captured the Clinton administration’s frustration over the drifting and ineffective, yet also destructive, costly in funding and military commitment, and vilified enforcement mission in Iraq, and its concern over the greater danger that would result from failing to contain Saddam Hussein:
The Clinton White House had more than “openly called for the overthrow of [Saddam Hussein’s] government.” Under President Clinton, the objective of regime change in Iraq had become American law.
On October 31, 1998, President Clinton signed Public Law 105-338, known as the Iraq Liberation Act. The purpose of the Iraq Liberation Act was to “establish a program to support a transition to democracy in Iraq.” The law also stated that the “sense of the Congress regarding United States policy toward Iraq” is “[i]t 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.” 17
On the same day President Clinton signed the Iraq Liberation Act into law, he issued a statement expanding upon the new legal mandate for regime change in Iraq:
Furthermore, although the Iraq Liberation Act stated, “[n]othing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces,” also embedded in the law was the finding that “[o]n August 14, 1998, President Clinton signed Public Law 105-235, which declared that `the Government of Iraq is in material and unacceptable breach of its international obligations' and urged the President `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.'.” 19
P.L. 105-235, called Iraqi Breach of International Obligations, detailed the long history of Iraq’s resistance to the UNSC resolutions and reinforced the Congressional mandate for the President to bring Iraq into compliance. 20 Where the UNSC had stopped formally declaring Iraq in material breach in 1993 despite continued provocations by Iraq, Congress set the judgment condition necessary for the President to deploy the military against Iraq. 21 While the law did not explicitly define “appropriate action” as military action, “relevant laws” included P.L. 102-1, which authorized use of the military to bring about Iraq’s compliance with international obligations.
President Bush relied on the Iraq Liberation Act to form his Iraq policy.
BUSH:
President Bush took office in January 2001 and inherited from President Clinton an unresolved Iraq problem in which Saddam Hussein’s noncompliance presented a clear and present danger, sanctions were failing, and the United States was bombing Iraq. The choice President Clinton passed onto President Bush was bearing indefinitely the onerous burden of a provocative sanctions and containment regimen that was viewed as eroding, or ending the costly mission and risking the greater danger of a triumphant Saddam Hussein. President Bush also inherited his predecessor’s unwillingness to move beyond bombing and containment in order to press Iraq with the only remaining option to escalate enforcement: the deployment of ground troops in Iraq. 22
Meanwhile, Al Qaeda was using the American mission in Iraq as a founding reason and rallying cry. 23
The attacks of 9/11 caused a seismic shift in American foreign policy in the Middle East and forced President Bush to assess America’s most threatening engagement in the region, Iraq.
While Saddam Hussein was not linked to the 9/11 attacks, it had been established during the Clinton administration that Saddam Hussein’s regime constituted a clear and present danger, U.S. and Iraqi military forces were engaged in hostile military action, Iraq had relations with terrorist groups if not Al Qaeda, an assassination attempt on former President Bush in 1993 had demonstrated Iraq’s willingness to use its own capability to unconventionally attack the U.S., and the material breach of the UNSC resolutions amounted to Iraq’s implied intent to use nuclear, biological, or chemical weapons. 24
At the point of Operation Desert Fox in December 1998, President Clinton had established the legal conditions, reasons, and precedent to use military action in Iraq, and made into law the objective of regime change in Iraq. The attacks of 9/11 only supplied the political will for President Bush to finally resolve America’s intractable Iraq problem. President Bush’s foreign-policy outlook after 9/11 can be summarized as follows:
At the Air Force Academy commencement in 2004, President Bush described the liberal underpinnings of the War on Terror:
President Bush chose to seek new authorizations on Iraq from Congress and the UNSC rather than rely on the UNSC resolutions and American laws used by President Clinton. UNSC resolution 1441 and Public Law 107-243 summarized and restated the existing resolutions and policies on Iraq with firmer language and provided Iraq with a (second) final chance to correct its material breach of multiple UNSC resolutions. 27
UNSC resolution 1441 and P.L. 107-243 established Iraq’s guilt of material breach and, as with previous resolutions and statutes, placed the burden on Iraq to prove its rehabilitation. Iraq’s rehabilitation depended on unconditionally, completely, and immediately cooperating with the weapons inspectors and fulfilling all the obligations imposed by the UNSC resolutions, including humanitarian conditions. Once again, the legal burden was not placed on the United Nations nor the United States to prove Iraq possessed stockpiles or active programs.
In December 1998, President Clinton had given Iraq three weeks to forestall Operation Desert Fox in its first “final chance.” President Bush’s second final chance for Iraq stretched to four months before he ordered Operation Iraqi Freedom. From November 22, 2002 until March 18, 2003, UNMOVIC provided ample opportunity for Iraq to rehabilitate itself under the UNSC resolutions and Iraq failed again to comply. 28 The reasons President Clinton gave for Operation Desert Fox in 1998 applied equally well to Operation Iraqi Freedom in 2003. 29
In a July 22, 2003 interview on CNN, President Clinton cited his presidential experience with Iraq to justify President Bush’s decisions on Iraq:
CARTER DOCTRINE and REAGAN COROLLARY:
By taking military action in Iraq, President Clinton and President Bush moved to honor not only international obligations but also defend a longstanding principal national security interest. Before the Clinton and Bush administrations deployed the military in Iraq, the need to maintain security and stability in the vital oil-producing region had compelled Presidents Carter, Reagan, and Bush (the father) to take an active role in Middle Eastern affairs. As President Carter stated in his 1980 State of the Union Address, “Let our position be absolutely clear: An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.” 31
President Reagan expanded President Carter’s security guarantee from repelling outside forces to also include internal regional stability when Reagan extended a security guarantee to Saudi Arabia due to concern over the Iran-Iraq war. The Reagan corollary to the Carter doctrine paved the way for President Bush to intervene when Iraq occupied Kuwait and threatened Saudi Arabia in 1990. 32
Some Constitutional scholars, such as Professor Frank Askin of Rutgers School of Law-Newark, have argued that P.L. 107-243 did not rise to a declaration of war by Congress or that Congress improperly delegated the power to declare war to President Bush. 33
Unless the Executive's foreign powers and obligations are rolled back to the 19th century and the need and form of a legislative declaration of war are far more narrowly defined, any attempt to have Operation Iraqi Freedom declared unconstitutional has little hope of succeeding. Under President Clinton, Congress had made clear the President was authorized to use military action to bring Iraq into compliance with the UNSC resolutions. Operation Iraqi Freedom was well grounded in the national interest, multiple statutes, as well as modern foreign-policy precedent. For example, P.L. 107-243 and UNSC resolution 1441 included strong humanitarian grounds. In 1999, while still bombing Iraq in the wake of Operation Desert Fox, President Clinton used humanitarian grounds to bypass Congress and the UNSC altogether when he deployed airpower and ground forces against Serbia. 34
CLOSING THOUGHTS:
When the cease-fire ended the 1991 Gulf War, the United Nations mission in Iraq was designed to be a strictly enforced and quickly achieved disarmament mission. 35 It was not intended to be an indefinitely prolonged sanctions and containment regimen that cast the U.N. and U.S. as villains, severely undermined American credibility around the world and in a region with a vital national security interest, and made the U.S. complicit with Saddam Hussein’s oppression of the Iraqi people. 36
The attacks of 9/11 forced the United States to evaluate its relationships with the Muslim world, with the Iraq problem at the top of the list. President Bush faced the same three options on Iraq faced by President Clinton:
President Bush started his presidency where President Clinton had ended his presidency: following Option-A. However, President Clinton had set the stage for Option-C by deploying the military in Iraq (and the Balkans) without applying for additional authorization, making the objective of regime change a legal mandate, and moving the United States to the brink of the ultimate enforcement measure in Iraq.
In 2002-03, with the political will to resolve the Iraq problem thrust upon him by the 9/11 attacks, President Bush followed President Clinton by offering Iraq its final chance to comply with the UNSC resolutions, thus placing the United States on the path to finally conclude the long, damaging American mission in Iraq.
“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. Tonight, the United States is doing just that.”
-- President William J. Clinton announcing Operation Desert Fox, December 16, 1998 37
ENDNOTES:
1 Regime Strategic Intent, https://www.cia.gov/library/reports/general-reports-1/iraq_wmd_2004/chap1.html (last visited May 8, 2012).
2 Id.
3 President Bush Outlines Iraqi Threat, http://georgewbush-whitehouse.archives.gov/news/releases/2002/10/20021007-8.html (last visited May 8, 2012). (In other respects, the speech echoes President Clinton’s positions on Iraq.)
4 Iraq Oil for Food Scandal, http://www.cfr.org/un/iraq-oil-food-scandal/p7631 (last visited May 11, 2012).
5 Public Law 107-40, Authorization of Use of United States Armed Forces, http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf; also see John Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, http://www.justice.gov/olc/warpowers925.htm (both websites last visited May 8, 2012).
6 President Clinton’s Statement on Air Strike Against Iraq, http://clinton4.nara.gov/WH/New/html/19981216-3611.html (last visited May 8. 2012).
7 Clinton Statement on Iraqi Compliance, http://www.mtholyoke.edu/acad/intrel/iraqcomp.htm (last visited May 8, 2012).
8 Public Law 102-1, Authorization of Use of Military Force Against Iraq Resolution, http://thomas.loc.gov/cgi-bin/query/D?c102:4:./temp/~c102QSSBKi:: (last visited May 8, 2012).
9 Resolution 678, http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/28/IMG/NR057528.pdf?OpenElement (last visited May 8, 2012).
10 CHAPTER VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, http://www.un.org/en/documents/charter/chapter7.shtml (last visited May 8, 2012).
11 Recall military historian T.R. Fehrenbach’s famous quote, “You may fly over a land forever; you may bomb it, atomize it, pulverize it and wipe it clean of life—but if you desire to defend it, protect it and keep it for civilization, you must do this on the ground, the way the Roman legions did, by putting your young men in the mud.”
12 Steven Lee Myers, With Little Notice, U.S. Planes Have Been Striking Iraq All Year, New York Times on the web, August 13, 1999, http://www.nytimes.com/library/world/mideast/081399iraq-conflict.html (last visited May 8, 2012).
13 Issue Brief for Congress: Iraq: Former and Recent Military Confrontations with the United States, http://fpc.state.gov/documents/organization/14836.pdf (last visited May 8, 2012).
14 Id; and see supra at 12 (re radar lock and surface to air missiles).
15 Id.
16 Supra at 12.
17 Iraq Liberation Act of 1998, http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.4655.ENR: (last visited May 8, 2012).
18 William J. Clinton: Statement on Signing the Iraq Liberation Act of 1998, http://www.presidency.ucsb.edu/ws/index.php?pid=55205#axzz1uK8VhmVA (last visited May 8, 2012).
19 Supra at 17.
20 Public Law 105-235, Iraqi Breach of Obligations, http://www.gpo.gov/fdsys/pkg/PLAW-105publ235/pdf/PLAW-105publ235.pdf (last visited May 8, 2012).
21 Supra at 13.
22 I do not believe the nuclear option was ever seriously considered.
23 Jihad Against Jews and Crusaders World Islamic Front Statement, http://www.fas.org/irp/world/para/docs/980223-fatwa.htm (last visited May 8, 2012).
24 Public Law 107-243, Authorization for Use of Military Force Against Iraq Resolution of 2002, http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/html/PLAW-107publ243.htm (last visited May 8, 2012).
25 From the author’s personal writings as an undergraduate student in 2003; original source unknown.
26 President Bush Speaks at Air Force Academy Graduation, http://georgewbush-whitehouse.archives.gov/news/releases/2004/06/20040602.html (last visited May 8, 2012). (This is worth the read as an inspiring speech that recalls President Kennedy.)
27 Supra at 24 and Resolution 1441, http://www.un.org/News/Press/docs/2002/SC7564.doc.htm (last visited May 8. 2012).
28 Selected Security Council Briefings, http://www.un.org/Depts/unmovic/new/pages/security_council_briefings.asp (last visited May 8, 2012).
29 Supra at 6.
30 Transcript of Larry King Live with President Clinton and Senator Dole, aired July 22, 2003, http://transcripts.cnn.com/TRANSCRIPTS/0307/22/lkl.00.html (last visited May 8, 2012).
31 Jimmy Carter State of the Union 1980, http://www.jimmycarterlibrary.gov/documents/speeches/su80jec.phtml (last visited May 8, 2012).
32 Remarks at the Welcoming Ceremony for King Fahd bin `Abd al-`Aziz Al Sa`ud of Saudi Arabia, http://www.reagan.utexas.edu/archives/speeches/1985/21185a.htm (last visited May 8, 2012).
33 New Jersey Peace Action, Paula Rogovin, Anna Berlinrut and Joseph Wheeler, Plaintiffs/Appellants, v. The President of the United States of America, Defendant/Respondent., http://law.newark.rutgers.edu/files/u/Appbrieffinalfinaltext.pdf (last visited May 8, 2012).
34 Over a decade later, President Obama cited humanitarian grounds, specifically Responsibility to Protect, to deploy airpower in Libya without Congressional authorization.
35 Compendium Observations and Lessons Learned, page 1058, http://www.un.org/Depts/unmovic/new/documents/compendium/Chapter_VIII.pdf (last visited May 8, 2012).
36 For example, see Sheldon Richman’s Iraqi Sanctions: Were They Worth It?, The Future of Freedom Foundation, http://www.fff.org/freedom/fd0401b.asp (last visited May 8, 2012). (It begins with Secretary of State Albright’s infamous response to a question about 500,000 Iraqi children dead due to the sanctions.)
37 Supra at 6.
To: Eric's National Security Law professor
Re: Regime Change in Iraq from Clinton to Bush
Date: May 11, 2012
“We will never lower our heads as long as we live, even if we have to destroy everybody."
-- Saddam Husayn [sic], January 1991 1
President Bush erred by deviating from President Clinton’s carefully hewn strategy on Iraq. Substantively, Bush’s Iraq policy was grounded in the same legal bases for military action that had been developed and utilized by Clinton. Indeed, the circumstances within Iraq that had compelled President Clinton to green-light Operation Desert Fox in December 1998 were not substantially different than the circumstances that compelled President Bush to green-light Operation Iraqi Freedom in March 2003. Iraq defied the ultimatums of both American presidents in the same manner, thus twice failing its “final chance” to comply with multiple United Nations Security Council (UNSC) resolutions with verification by UNSCOM inspectors in 1998 and UNMOVIC inspectors in 2002-03.
The Duelfer report findings of 2004, largely ignored within a toxic political discourse, corroborated President Clinton's contentions that Saddam Hussein intended to rebuild his proscribed weapons programs once the sanctions had been defeated, retained his long-term interest in a nuclear program in order to make Iraq a great regional power and to protect Iraq’s interests from foreign interference, and had continued to develop long-range delivery systems. 2
However, President Bush, while relying on the same legal framework for military action used by President Clinton, presented to the public a different case for military action against Iraq than President Clinton had used in 1998. President Clinton, notwithstanding his failure to resolve the Iraq problem, deserves credit for resting his public case for military action on Iraq’s failure to meet its burden of proof, irrespective of Iraq’s store of weaponry, thus ensuring his Iraq policy matched the legal framework of the UNSC resolutions and the matching Congressional acts. Under President Clinton, the burden of proof stayed with the intended and proper party: Iraq.
The foundational premises of the UNSC resolutions were Iraq’s unconditional cooperation and the burden of proof belonged solely to Iraq - not to the United Nations, nor to the United States and her allies. Iraq’s regular failure to cooperate unconditionally was, by itself, an ongoing material breach of the UNSC resolutions. President Bush, however, shifted the burden of proof in the political discourse to the United States with his warnings about existing stockpiles and active programs in Iraq when he should have followed President Clinton’s lead and rested his case for military action on Iraq’s demonstrated noncompliance with the UNSC resolutions. 3
President Bush may have believed the argument was politically necessary to rally the international community (for example, since the late 1990s, UNSC permanent members France, Russia, and China, possibly influenced by the Oil-for-Food scandal, had protested the U.S.-led enforcement of the UNSC resolutions) 4, and he may have sincerely believed Iraq had used the unsupervised years in between inspections to rebuild its proscribed weapons programs, but Bush’s decision was legally imprudent.
In the political discourse, President Bush’s claim of affirmative knowledge of stockpiles and active programs allowed critics to relieve Iraq’s burden to prove compliance and shifted the burden onto the United States to prove the existence of those stockpiles and active programs in Iraq.
If President Bush had simply followed President Clinton's case for military action and added the weight of the broad mandate provided by the Authorization of the Use of Military Forces of September 25, 2001 (Public Law 107-40), Bush could have achieved the same result without losing the essential thread of the legal case for military action. 5 President Bush’s historic error in judgment notwithstanding, the legal tripwire to start Operation Iraqi Freedom remained unchanged from the trigger for President Clinton to order Operation Desert Fox: Iraq’s material breach of the UNSC resolutions on multiple fronts.
Excerpts from the Statement by the President from the Oval Office, December 16, 1998:
I concluded then that the right thing to do was to use restraint and give Saddam one last chance to prove his willingness to cooperate. I made it very clear at that time what "unconditional cooperation" meant, based on existing U.N. resolutions and Iraq's own commitments.
. . .
Now, over the past three weeks, the U.N. 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 U.N. Secretary General Annan. The conclusions are stark, sobering and profoundly disturbing. In four out of the five categories set forth, Iraq has failed to cooperate.
. . .
So Iraq has abused its final chance.
. . .
[T]he inspectors are saying that, even if they could stay in Iraq, their work would be a sham. Saddam's deception has defeated their effectiveness.
. . .
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.
. . .
We acted today because, in the judgment of my military advisors, a swift response would provide the most surprise and the least opportunity for Saddam to prepare. 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.
. . .
[W]e must be prepared to use force again if Saddam takes threatening actions, such as trying to reconstitute his weapons of mass destruction or their delivery systems, threatening his neighbors, challenging allied aircraft over Iraq, or moving against his own Kurdish citizens. The credible threat to use force and, when necessary, the actual use of force, is the surest way to contain Saddam's weapons of mass destruction program, curtail his aggression and prevent another Gulf War.
. . .
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.
. . .
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. Tonight, the United States is doing just that. 6
President Clinton established that the failure of Iraq to cooperate with the weapons inspectors and meet its burden of proof, irrespective of Iraq’s actual possession of proscribed weapons, compelled military action due to “a clear and present danger to the stability of the Persian Gulf and the safety of people everywhere.” Moreover, President Clinton defined the continued existence of Saddam Hussein’s regime, irrespective of its compliance with the UNSC resolutions or actual possession of proscribed weapons, as a humanitarian crisis and collective security threat.
President Clinton’s announcement of Operation Desert Fox from the Oval Office is the best statement of authority for the deployment of the nation’s strongest military option against Iraq in December 1998, short of introducing ground forces or deploying a nuclear weapon, because Clinton did not seek additional authorization from Congress or the UNSC. His view was that the legal authority to conduct military action against Iraq was fully vested in his office.
In a comprehensive letter informing Congress of the situation in Iraq on November 5, 1998, President Clinton clarified both his legal authority and the limit of his duty to Congress with the first sentence following the salutation: “Consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) and as part of my effort to keep the Congress fully informed, I am reporting on the status of efforts to obtain Iraq's compliance with the resolutions adopted by the United Nations Security Council (UNSC).” 7
P.L. 102-1, passed on January 12, 1991, stated, “The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678.” 8
UNSC Resolution 678, adopted on November 29, 1990, stated, “[a]cting under Chapter VII of the Charter . . . [a]uthorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, 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.” 9
Finally, Article 42 of Chapter VII of the United Nations Charter states, “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” 10
In other words, President Clinton recognized that the legal authority to deploy the United States military to enforce the UNSC resolutions on Iraq had been bestowed on his office by statute before he had been elected the President of the United States.
President Clinton’s November 5 letter and, indeed, his December 16 speech from the Oval Office seemed deliberately calculated to convey in wording and imagery that the authority for enforcing the UNSC resolutions and confronting Iraq belonged entirely to the office of the President. The letter to Congress merely fulfilled the reporting requirement in P.L. 102-1. No additional permission was requested or needed by the President to order Operation Desert Fox’s extensive bombing of Iraq.
Unfortunately, Operation Desert Fox’s exclusive reliance on airpower, the penultimate enforcement measure before deploying ground forces, utterly failed to convince Saddam Hussein to acquiesce to the UNSC resolutions or cause permanent damage to Iraq’s military infrastructure. 11
According to a New York Times report from August 13, 1999, “the Iraqis have proved more resilient than expected. They have quickly repaired damage done to air-defense weapons, forcing the Americans to bomb some targets over and over. They have even rebuilt some of the factories, barracks and other sites destroyed in December's raids, including buildings at the Al Taji missile complex, one of the critical targets, according to Defense officials.” 12
Perhaps sensing the limit of American resolve, Saddam Hussein’s belligerence increased after Operation Desert Fox. According to a Congressional issue brief on October 16, 2002, “[o]fficial Iraqi media reported on January 3, 1999 that President Saddam Hussein condemned the no-fly zones and said his people would resist them with “bravery and courage.” The Iraqi President followed up by offering a $14,000 bounty to any unit that shot down an allied plane and an additional $2,800 reward for capturing an allied pilot.” 13
Since the no-fly zones had been established in 1991 to enforce UNSC resolution 688, which demanded an immediate end to the repression of the Iraqi civilian population, Iraq had not stopped firing on the allied aircraft patrolling the no-fly zones. However, as the threat to allied aircraft increased after Operation Desert Fox, including radar locks and surface-to-air missiles, the allied counter-fire also increased against Iraqi anti-aircraft defenses. In response, the allied rules of engagement were relaxed to include all Iraqi anti-aircraft defenses, not only the specific unit that had fired at an allied plane. Saddam Hussein took advantage of the heightened allied self-defense measures by co-locating his anti-aircraft systems with civilian populations in order to produce casualties for international propaganda use. 14
President Clinton continued bombing in Iraq after Operation Desert Fox in order to enforce the no-fly zone. The airpower operation in Iraq carried over into the Bush administration. 15 In the waning months of the Clinton administration, it seemed that the United States had played its trump card, failed, and the endgame favored Saddam Hussein’s brinkmanship.
The New York Times report of August 13, 1999 captured the Clinton administration’s frustration over the drifting and ineffective, yet also destructive, costly in funding and military commitment, and vilified enforcement mission in Iraq, and its concern over the greater danger that would result from failing to contain Saddam Hussein:
Of greater concern is Iraq's ability to rebuild its nuclear, chemical and biological weapons, programs that Saddam pledged to halt as part of the cease-fire that ended the Persian Gulf war in 1991. In their letter, the lawmakers said there was "considerable evidence" that Iraq continued to pursue those weapons, though neither they nor their aides elaborated. The administration and Pentagon officials maintain there is no evidence of that, but without international inspections, some acknowledged, there is little to stop Saddam's government from doing so.
. . .
"I've very concerned," Energy Secretary Bill Richardson, who served as the chief American representative at the United Nations during last year's confrontation, told reporters on Wednesday. "My experience with the Iraqis is if you give them an inch, they take a mile."
With the increase in tempo, the fighting over the zones is costing upwards of $1 billion a year, though Pentagon officials say it is difficult to fix an exact cost. More than 200 aircraft, 19 warships and 22,000 American troops are devoted to the effort.
The officials acknowledge that the strikes alone will not topple Saddam, even though the White House has openly called for the overthrow of his government and promised nominal support to opposition figures. That has led to frustration.
"He has been kept in check," one Defense official said. "But the question is: Have you met any of your long-term goals? I don't think so."
A senior administration official said that until a change in government occurs, containment was the only viable policy at this time, politically and diplomatically.
"Neither this administration, nor this Congress, nor any other country is prepared to take the measures that would be truly necessary to ensure there was a change of regime," the official said. "If you want to go beyond containment, you have to put your money where your mouth is. And that means ground troops." 16
The Clinton White House had more than “openly called for the overthrow of [Saddam Hussein’s] government.” Under President Clinton, the objective of regime change in Iraq had become American law.
On October 31, 1998, President Clinton signed Public Law 105-338, known as the Iraq Liberation Act. The purpose of the Iraq Liberation Act was to “establish a program to support a transition to democracy in Iraq.” The law also stated that the “sense of the Congress regarding United States policy toward Iraq” is “[i]t 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.” 17
On the same day President Clinton signed the Iraq Liberation Act into law, he issued a statement expanding upon the new legal mandate for regime change in Iraq:
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. 18
Furthermore, although the Iraq Liberation Act stated, “[n]othing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces,” also embedded in the law was the finding that “[o]n August 14, 1998, President Clinton signed Public Law 105-235, which declared that `the Government of Iraq is in material and unacceptable breach of its international obligations' and urged the President `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.'.” 19
P.L. 105-235, called Iraqi Breach of International Obligations, detailed the long history of Iraq’s resistance to the UNSC resolutions and reinforced the Congressional mandate for the President to bring Iraq into compliance. 20 Where the UNSC had stopped formally declaring Iraq in material breach in 1993 despite continued provocations by Iraq, Congress set the judgment condition necessary for the President to deploy the military against Iraq. 21 While the law did not explicitly define “appropriate action” as military action, “relevant laws” included P.L. 102-1, which authorized use of the military to bring about Iraq’s compliance with international obligations.
President Bush relied on the Iraq Liberation Act to form his Iraq policy.
President Bush took office in January 2001 and inherited from President Clinton an unresolved Iraq problem in which Saddam Hussein’s noncompliance presented a clear and present danger, sanctions were failing, and the United States was bombing Iraq. The choice President Clinton passed onto President Bush was bearing indefinitely the onerous burden of a provocative sanctions and containment regimen that was viewed as eroding, or ending the costly mission and risking the greater danger of a triumphant Saddam Hussein. President Bush also inherited his predecessor’s unwillingness to move beyond bombing and containment in order to press Iraq with the only remaining option to escalate enforcement: the deployment of ground troops in Iraq. 22
Meanwhile, Al Qaeda was using the American mission in Iraq as a founding reason and rallying cry. 23
The attacks of 9/11 caused a seismic shift in American foreign policy in the Middle East and forced President Bush to assess America’s most threatening engagement in the region, Iraq.
While Saddam Hussein was not linked to the 9/11 attacks, it had been established during the Clinton administration that Saddam Hussein’s regime constituted a clear and present danger, U.S. and Iraqi military forces were engaged in hostile military action, Iraq had relations with terrorist groups if not Al Qaeda, an assassination attempt on former President Bush in 1993 had demonstrated Iraq’s willingness to use its own capability to unconventionally attack the U.S., and the material breach of the UNSC resolutions amounted to Iraq’s implied intent to use nuclear, biological, or chemical weapons. 24
At the point of Operation Desert Fox in December 1998, President Clinton had established the legal conditions, reasons, and precedent to use military action in Iraq, and made into law the objective of regime change in Iraq. The attacks of 9/11 only supplied the political will for President Bush to finally resolve America’s intractable Iraq problem. President Bush’s foreign-policy outlook after 9/11 can be summarized as follows:
Among the momentous effects of Al-Qaeda's violent strikes against the United States on September 11, 2001, was a re-orientation of American policy toward the Middle East. The new paradigm adopted in Washington viewed much of the world as being divided into opponents versus supporters of terrorism. Furthermore, the roots of terrorism were ascribed to Mideast regimes that caused social and economic failures while pursuing the interests of small groups of ruling elites. 25
At the Air Force Academy commencement in 2004, President Bush described the liberal underpinnings of the War on Terror:
For decades, free nations tolerated oppression in the Middle East for the sake of stability. In practice, this approach brought little stability, and much oppression. So I have changed this policy. In the short-term, we will work with every government in the Middle East dedicated to destroying the terrorist networks. In the longer-term, we will expect a higher standard of reform and democracy from our friends in the region. Democracy and reform will make those nations stronger and more stable, and make the world more secure by undermining terrorism at it source. Democratic institutions in the Middle East will not grow overnight; in America, they grew over generations. Yet the nations of the Middle East will find, as we have found, the only path to true progress is the path of freedom and justice and democracy. 26
President Bush chose to seek new authorizations on Iraq from Congress and the UNSC rather than rely on the UNSC resolutions and American laws used by President Clinton. UNSC resolution 1441 and Public Law 107-243 summarized and restated the existing resolutions and policies on Iraq with firmer language and provided Iraq with a (second) final chance to correct its material breach of multiple UNSC resolutions. 27
UNSC resolution 1441 and P.L. 107-243 established Iraq’s guilt of material breach and, as with previous resolutions and statutes, placed the burden on Iraq to prove its rehabilitation. Iraq’s rehabilitation depended on unconditionally, completely, and immediately cooperating with the weapons inspectors and fulfilling all the obligations imposed by the UNSC resolutions, including humanitarian conditions. Once again, the legal burden was not placed on the United Nations nor the United States to prove Iraq possessed stockpiles or active programs.
In December 1998, President Clinton had given Iraq three weeks to forestall Operation Desert Fox in its first “final chance.” President Bush’s second final chance for Iraq stretched to four months before he ordered Operation Iraqi Freedom. From November 22, 2002 until March 18, 2003, UNMOVIC provided ample opportunity for Iraq to rehabilitate itself under the UNSC resolutions and Iraq failed again to comply. 28 The reasons President Clinton gave for Operation Desert Fox in 1998 applied equally well to Operation Iraqi Freedom in 2003. 29
In a July 22, 2003 interview on CNN, President Clinton cited his presidential experience with Iraq to justify President Bush’s decisions on Iraq:
Let me tell you what I know. When I left office, there was a substantial amount of biological and chemical material unaccounted for. That is, at the end of the first Gulf War, we knew what he had. We knew what was destroyed in all the inspection processes and that was a lot. And then we bombed with the British for four days in 1998. We might have gotten it all; we might have gotten half of it; we might have gotten none of it. But we didn't know. 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.
. . .
I think the main thing I want to say to you is, people can quarrel with whether we should have more troops in Afghanistan or internationalize Iraq or whatever, but it is incontestable that on the day I left office, there were unaccounted for stocks of biological and chemical weapons. We might have destroyed them in '98. We tried to, but we sure as heck didn't know it because we never got to go back in there. And what I think -- again, I would say the most important thing is we should focus on what's the best way to build Iraq as a democracy? How is the president going to do that and deal with continuing problems in Afghanistan and North Korea? We should be pulling for America on this. We should be pulling for the people of Iraq. 30
By taking military action in Iraq, President Clinton and President Bush moved to honor not only international obligations but also defend a longstanding principal national security interest. Before the Clinton and Bush administrations deployed the military in Iraq, the need to maintain security and stability in the vital oil-producing region had compelled Presidents Carter, Reagan, and Bush (the father) to take an active role in Middle Eastern affairs. As President Carter stated in his 1980 State of the Union Address, “Let our position be absolutely clear: An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.” 31
President Reagan expanded President Carter’s security guarantee from repelling outside forces to also include internal regional stability when Reagan extended a security guarantee to Saudi Arabia due to concern over the Iran-Iraq war. The Reagan corollary to the Carter doctrine paved the way for President Bush to intervene when Iraq occupied Kuwait and threatened Saudi Arabia in 1990. 32
Some Constitutional scholars, such as Professor Frank Askin of Rutgers School of Law-Newark, have argued that P.L. 107-243 did not rise to a declaration of war by Congress or that Congress improperly delegated the power to declare war to President Bush. 33
Unless the Executive's foreign powers and obligations are rolled back to the 19th century and the need and form of a legislative declaration of war are far more narrowly defined, any attempt to have Operation Iraqi Freedom declared unconstitutional has little hope of succeeding. Under President Clinton, Congress had made clear the President was authorized to use military action to bring Iraq into compliance with the UNSC resolutions. Operation Iraqi Freedom was well grounded in the national interest, multiple statutes, as well as modern foreign-policy precedent. For example, P.L. 107-243 and UNSC resolution 1441 included strong humanitarian grounds. In 1999, while still bombing Iraq in the wake of Operation Desert Fox, President Clinton used humanitarian grounds to bypass Congress and the UNSC altogether when he deployed airpower and ground forces against Serbia. 34
When the cease-fire ended the 1991 Gulf War, the United Nations mission in Iraq was designed to be a strictly enforced and quickly achieved disarmament mission. 35 It was not intended to be an indefinitely prolonged sanctions and containment regimen that cast the U.N. and U.S. as villains, severely undermined American credibility around the world and in a region with a vital national security interest, and made the U.S. complicit with Saddam Hussein’s oppression of the Iraqi people. 36
The attacks of 9/11 forced the United States to evaluate its relationships with the Muslim world, with the Iraq problem at the top of the list. President Bush faced the same three options on Iraq faced by President Clinton:
A. Head-line and maintain indefinitely the provocative, harmful, and failing sanctions and containment regimen.
B. End the mission and release Saddam from constraint, in power and triumphant.
C. Offer Saddam Hussein a final chance to comply with the UNSC resolutions, and if Iraq triggered the ultimate enforcement measure, then move ahead with regime change.
President Bush started his presidency where President Clinton had ended his presidency: following Option-A. However, President Clinton had set the stage for Option-C by deploying the military in Iraq (and the Balkans) without applying for additional authorization, making the objective of regime change a legal mandate, and moving the United States to the brink of the ultimate enforcement measure in Iraq.
In 2002-03, with the political will to resolve the Iraq problem thrust upon him by the 9/11 attacks, President Bush followed President Clinton by offering Iraq its final chance to comply with the UNSC resolutions, thus placing the United States on the path to finally conclude the long, damaging American mission in Iraq.
“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. Tonight, the United States is doing just that.”
-- President William J. Clinton announcing Operation Desert Fox, December 16, 1998 37
1 Regime Strategic Intent, https://www.cia.gov/library/reports/general-reports-1/iraq_wmd_2004/chap1.html (last visited May 8, 2012).
2 Id.
3 President Bush Outlines Iraqi Threat, http://georgewbush-whitehouse.archives.gov/news/releases/2002/10/20021007-8.html (last visited May 8, 2012). (In other respects, the speech echoes President Clinton’s positions on Iraq.)
4 Iraq Oil for Food Scandal, http://www.cfr.org/un/iraq-oil-food-scandal/p7631 (last visited May 11, 2012).
5 Public Law 107-40, Authorization of Use of United States Armed Forces, http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf; also see John Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, http://www.justice.gov/olc/warpowers925.htm (both websites last visited May 8, 2012).
6 President Clinton’s Statement on Air Strike Against Iraq, http://clinton4.nara.gov/WH/New/html/19981216-3611.html (last visited May 8. 2012).
7 Clinton Statement on Iraqi Compliance, http://www.mtholyoke.edu/acad/intrel/iraqcomp.htm (last visited May 8, 2012).
8 Public Law 102-1, Authorization of Use of Military Force Against Iraq Resolution, http://thomas.loc.gov/cgi-bin/query/D?c102:4:./temp/~c102QSSBKi:: (last visited May 8, 2012).
9 Resolution 678, http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/28/IMG/NR057528.pdf?OpenElement (last visited May 8, 2012).
10 CHAPTER VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, http://www.un.org/en/documents/charter/chapter7.shtml (last visited May 8, 2012).
11 Recall military historian T.R. Fehrenbach’s famous quote, “You may fly over a land forever; you may bomb it, atomize it, pulverize it and wipe it clean of life—but if you desire to defend it, protect it and keep it for civilization, you must do this on the ground, the way the Roman legions did, by putting your young men in the mud.”
12 Steven Lee Myers, With Little Notice, U.S. Planes Have Been Striking Iraq All Year, New York Times on the web, August 13, 1999, http://www.nytimes.com/library/world/mideast/081399iraq-conflict.html (last visited May 8, 2012).
13 Issue Brief for Congress: Iraq: Former and Recent Military Confrontations with the United States, http://fpc.state.gov/documents/organization/14836.pdf (last visited May 8, 2012).
14 Id; and see supra at 12 (re radar lock and surface to air missiles).
15 Id.
16 Supra at 12.
17 Iraq Liberation Act of 1998, http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.4655.ENR: (last visited May 8, 2012).
18 William J. Clinton: Statement on Signing the Iraq Liberation Act of 1998, http://www.presidency.ucsb.edu/ws/index.php?pid=55205#axzz1uK8VhmVA (last visited May 8, 2012).
19 Supra at 17.
20 Public Law 105-235, Iraqi Breach of Obligations, http://www.gpo.gov/fdsys/pkg/PLAW-105publ235/pdf/PLAW-105publ235.pdf (last visited May 8, 2012).
21 Supra at 13.
22 I do not believe the nuclear option was ever seriously considered.
23 Jihad Against Jews and Crusaders World Islamic Front Statement, http://www.fas.org/irp/world/para/docs/980223-fatwa.htm (last visited May 8, 2012).
24 Public Law 107-243, Authorization for Use of Military Force Against Iraq Resolution of 2002, http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/html/PLAW-107publ243.htm (last visited May 8, 2012).
25 From the author’s personal writings as an undergraduate student in 2003; original source unknown.
26 President Bush Speaks at Air Force Academy Graduation, http://georgewbush-whitehouse.archives.gov/news/releases/2004/06/20040602.html (last visited May 8, 2012). (This is worth the read as an inspiring speech that recalls President Kennedy.)
27 Supra at 24 and Resolution 1441, http://www.un.org/News/Press/docs/2002/SC7564.doc.htm (last visited May 8. 2012).
28 Selected Security Council Briefings, http://www.un.org/Depts/unmovic/new/pages/security_council_briefings.asp (last visited May 8, 2012).
29 Supra at 6.
30 Transcript of Larry King Live with President Clinton and Senator Dole, aired July 22, 2003, http://transcripts.cnn.com/TRANSCRIPTS/0307/22/lkl.00.html (last visited May 8, 2012).
31 Jimmy Carter State of the Union 1980, http://www.jimmycarterlibrary.gov/documents/speeches/su80jec.phtml (last visited May 8, 2012).
32 Remarks at the Welcoming Ceremony for King Fahd bin `Abd al-`Aziz Al Sa`ud of Saudi Arabia, http://www.reagan.utexas.edu/archives/speeches/1985/21185a.htm (last visited May 8, 2012).
33 New Jersey Peace Action, Paula Rogovin, Anna Berlinrut and Joseph Wheeler, Plaintiffs/Appellants, v. The President of the United States of America, Defendant/Respondent., http://law.newark.rutgers.edu/files/u/Appbrieffinalfinaltext.pdf (last visited May 8, 2012).
34 Over a decade later, President Obama cited humanitarian grounds, specifically Responsibility to Protect, to deploy airpower in Libya without Congressional authorization.
35 Compendium Observations and Lessons Learned, page 1058, http://www.un.org/Depts/unmovic/new/documents/compendium/Chapter_VIII.pdf (last visited May 8, 2012).
36 For example, see Sheldon Richman’s Iraqi Sanctions: Were They Worth It?, The Future of Freedom Foundation, http://www.fff.org/freedom/fd0401b.asp (last visited May 8, 2012). (It begins with Secretary of State Albright’s infamous response to a question about 500,000 Iraqi children dead due to the sanctions.)
37 Supra at 6.
Eric
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posted by Eric at 5/16/2012 08:54:00 PM
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