New Cheney biopic Vice is a gift opportunity to clarify the Iraq issue for the public

Appeal to OIF supporters and other humanitarian liberal policy advocates:

Vice, the new biopic about Vice President Cheney by Adam McKay, features the false narrative stigmatizing the Iraq intervention, which makes the film a precious gift opportunity for you (and other like-minded persons) to clarify the Iraq issue for the public. For that purpose, the Operation Iraqi Freedom FAQ is ready to help you as a cheat sheet and study guide for the Iraq issue. I show my work, cite my sources, and remind that I'm not the authority: the sources are the authority.

Objectively on the law and facts, the American and British decision on Iraq was correct; the case against Saddam is substantiated. But if you feel that upholding the women and men, including President Bush and VP Cheney, who conscientiously rose to their duty with the vital ethical, principled, resolute, adaptive leadership that manifested with Operation Iraqi Freedom (OIF) isn't good enough reason for zealous advocacy, then consider that OIF stigma is the purposeful v2.0 strategic heir of Vietnam War stigma as the keystone premise in the politics subverting American leadership of the free world. Like the Vietnam War stigma, the OIF stigma won't go away until you've corrected it and discredited its proponents in the politics.

By refreshing the false narrative stigmatizing the Iraq intervention, McKay is practically inviting you (and other like-minded persons) to counteract the OIF stigma for our children's sake as an earlier generation should have counteracted the Vietnam War stigma for our sake. Your competitive advantage is the basic narrative of the OIF stigma is brazenly false and thus readily corrected by properly fixing the discourse with the incontrovertible plain law, policy, precedent, and facts that define the Iraq issue. On the other hand, if the Vice propaganda is conceded, then the metastatic OIF stigma will grow deeper.

I suggest my Rebuttal of Prime Minister Brown's memoir argument against Operation Iraqi Freedom to prep your mindset to exploit Vice — with the understanding that setting the record straight will demand more than that from my work and your expertise.

Please share this appeal with like-minded family, friends, and colleagues, most importantly those with the means to compete in the politics. Adam McKay's gift opportunity to clarify the Iraq issue for the public will be viable for only so long.

In an interview with me, "Vice" director Adam McKay explains/defends his tragi-comedy film about Dick Cheney & reminds us George W. Bush, whose launched-with-lies war in Iraq killed 1000s of US GIs & 100Ks of Iraqi civilians, deserves no rehabilitation. https://t.co/J2foRcDMM7

— David Corn (@DavidCornDC) January 8, 2019

Eric

Rest in peace, President Bush

Another president from my childhood, President George HW Bush, has died. I wrote about his seminal role in the UNSCR 660-series Iraq intervention here.

Rest in peace, sir.

Eric

Criticism of Prime Minister Blair's response to the Chilcot report

PREFACE: I generally refrain from direct critical evaluation of the 06JUL16 Chilcot (UK Iraq Inquiry) report because I'm an American versed in the workings of the American domestic decision on Iraq who's not similarly versed in the workings of the British domestic decision on Iraq. However, the American and British decisions on Iraq share the predominant, international context of the enforcement of Iraq's compliance with the UNSCR 660-series, Gulf War ceasefire mandates. As such, I have on occasion critically evaluated UK-based commentary related to the Chilcot report on the mutual grounds of the US and UK decision on Iraq. For example, see my Rebuttal of Prime Minister Brown's memoir argument against Operation Iraqi Freedom.

In the same vein, here is a brief criticism of Prime Minister Blair's response to the Chilcot report.

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A brief criticism of Prime Minister Blair's 06JUL16 response to the Chilcot report:

Prime Minister Blair's response to the Chilcot report attempts to justify the British decision on Iraq using an apology format, and indeed, a savvy political apology can be strategically affirmative while actually unapologetic. Otherwise, an apology normally is an implicit acceptance of the accuser's contextual frame and contrite admission of culpability and/or error. Blair's response to the Chilcot report is inclined to be strategically affirmative of the Iraq intervention, but it falls short of the intended political impact because Blair failed to clarify the operative contextual frame that's necessary to properly sort, order, and evaluate the data he listed.

Context is essential. Blair properly cited that UNSCR 1441 was "[d]etermined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations" and afforded Iraq's "final opportunity to comply". However, Blair critically omitted the operative context of UNSCR 1441 that "recall[ed] that the resolutions of the Council constitute the governing standard of Iraqi compliance" and "[re]cogniz[ed] the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security". Review the OIF FAQ and my rebuttal of Prime Minister Brown and attend to their dialectical structure. Suffice to say, in contrast, Blair's omission of core load-bearing elements much explains his dooming failure to clarify the operative contextual frame of the Iraq issue.

Blair provides a workable list of relevant data points, which could and should have been quilted onto the operative contextual frame to present a persuasive response to the Chilcot report that clarified the Iraq issue. Instead, Prime Minister Blair's failure to correct Sir John Chilcot's distorted context carried over Chilcot's mis-ordered mis-evaluation of the data and lets lay the obfuscation that enables Chilcot's faulty premises. In other words, Blair presented to the public an incoherent pile of puzzle pieces instead of a coherently assembled, clarified narrative-picture of the Iraq issue that could dispel and replace the prevailing, Chilcot-abetted revisionist narrative-picture.

Compounding his fundamental failure to clarify the operative contextual frame, Prime Minister Blair misrepresented key fact findings, especially from the Iraq Survey Group, just like President Bush did in his 2010 memoir, which I correctively criticized here. Regarding Blair's comments on the post-war competition for Iraq, also see my commentary on the post-war planning, setbacks, and adjustments.

Blair's exhortation to "learn the right ... lessons from Iraq" is precluded by the Chilcot-abetted revisionist narrative that has deformed those lessons. The historical record and, by the same token, the broader politics of Iraq can't cure themselves. Which is to say, history doesn't "tell" — it's told. How it's told is course-setting: Past is prologue. Past is premise. Inasmuch Blair "says that history will tell in the end what was right" (Shehadi), he's passed the buck to other public expert authorities, leaders and pundits, to clarify the operative contextual frame that's necessary to pick up his relevant yet inarticulate pile of data points, and sort, order, and evaluate them properly to set the record straight on the Iraq intervention. In turn, a clarified narrative is necessary to lay the proper foundation to "learn the right ... lessons from Iraq".

Eric

Criticisms and suggestions for "International Law and the War in Iraq" (John Yoo, 2003)

PREFACE: The John Yoo is a professor at UC Berkeley law school. More significantly, "From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers."

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from: Eric
to: [John Yoo]
date: Sun, Dec 10, 2017 at 7:03 AM
subject: Edited v1.1: Criticisms and suggestions for "International Law and the War in Iraq" (July 2003) Re: President Bush's decision on Iraq was correct on the law and facts

Professor Yoo,

Due to the White House's recent derisive invocation of the Iraq intervention to put down President Bush's implied criticism of President Trump, followed the next day by Prime Minister Brown's accusation that the Bush administration lied about Saddam's WMD to trick the UK into war with Iraq (see my rebuttal), I'm moved to e-mail you my criticisms and suggestions for your monograph, International Law and the War in Iraq (2003), with the hope that they will encourage and help you to set the record straight on the Iraq issue in the public discourse. Public corrective on the Iraq issue is urgently needed.

First, before I begin the critical exercise, the compliance basis for the decision for Operation Iraqi Freedom was the proper one, and knowing what we know now, it has been well substantiated. The Bush administration should have hewed to the established compliance frame instead of tacking on an "independent" 2nd claim of intelligence-based anticipatory self-defense. More on that below.

Criticism:
Your description of the UNSCR 687 WMD disarmament process misstates the procedure with "destroy its chemical and biological weapons and ballistic missiles and agree to on-site inspections" (Yoo). Your construction implies that Iraq was permitted to unilaterally destroy proscribed items and separately agree to inspections, when in fact, destruction was integrated with disclosure, verification, and supervision. Whereas unverified unsupervised unilateral destruction subverted the mandated accountability.

Following Operation Desert Fox, on January 25, 1999, UNSCOM executive chairman Richard Butler clarified the UNSCR 687 WMD disarmament procedure and summarized Iraq's strategy to undermine it:

3. For the conduct of this work [mandated by "Paragraphs 8 and 9, in section C of resolution 687 (1991)"], the resolutions of the Council established a three-step system: full disclosure by Iraq; verification of those disclosures by the Commission; destruction, removal, or rendering harmless, under international supervision, of all proscribed weapons, materials and facilities.
4. From the inception of the relevant work, in 1991, Iraq's compliance has been limited. Iraq acknowledges that, in that year, it decided to limit its disclosures for the purpose of retaining substantial prohibited weapons and capabilities.
5. Actions by Iraq in three main respects have had a significant negative impact upon the Commission's disarmament work:
Iraq's disclosure statements have never been complete;
contrary to the requirement that destruction be conducted under international supervision, Iraq undertook extensive, unilateral and secret destruction of large quantities of proscribed weapons and items;
it also pursued a practice of concealment of proscribed items, including weapons, and a cover up of its activities in contravention of Council resolutions.

It's important to be a stickler about clarifying the disclosure, verification, and supervision elements of the UNSCR 687 "three-step system" (Butler) because anti-OIF propagandists tout Iraq's unverified unsupervised unilateral destruction of proscribed items as proof of false accusation by President Bush and exoneration of Saddam, when in fact, unverified unsupervised unilateral destruction was a critical ceasefire breach.

Suggestion:
Pair President Bush's "axis of evil" quote from the 2002 State of the Union with matching quote from President Clinton's 17FEB98 remarks at the Pentagon regarding the Iraqi threat. For example:

In the next century, the community of nations may see more and more the very kind of threat Iraq poses now: a rogue state with weapons of mass destruction, ready to use them or provide them to terrorists, drug traffickers, or organized criminals, who travel the world among us unnoticed.

Suggestion:
Update the statement, "At the time of this writing, coalition forces in Iraq continue to search for WMD sites; while no weapons have yet been discovered, it may take months if not years to learn the fate of Iraq’s WMD stockpile" (Yoo).

It should be clarified to the public that the Iraq Survey Group's findings are rife with UNSCR 687-proscribed items and activities. The operative definition of WMD violation per UNSCR 687 included more proscribed items and activities than battlefield-ready stockpile. ISG confirmed Saddam was reconstituting his WMD program via the IIS. The Iraqi Perspectives Project also confirmed Saddam's UNSCRs 687 and 688-violating IIS-run domestic, "regional and global terrorism" was vastly underestimated before OIF.

At the same time, it should be clarified to the public that we don't actually know the fate of Iraq's WMD stockpile. The ISG non-findings, which are prevalently portrayed in the politics as unequivocal evidence of absence, are in fact heavily qualified with evidentiary gaps and other practical limitations to the ISG investigation. The ISG report is properly read as a floor, not a complete account of Saddam's WMD. Although David Kay, Charles Duelfer, et al. did their best, the highly adverse conditions they encountered on the ground in Iraq meant the ISG survey of Saddam's WMD was not a thorough investigation. Duelfer's assessment of the fate of Saddam's missing weapons is really a heavily qualified best guess, not a proven disposition.

For more detail, see my criticism of President Bush's memoir for its misrepresentation of the ISG findings as a "thorough search of Iraq".

Suggestion:
You take much care to rebut the opposing view that the decision for OIF was illegal, eg, "Some have argued, however, that, Resolution 678’s authorization had expired. Representatives from France, Germany, and Russia, for example, seemed to take the position that because the current members of the Security Council would not agree to the use of force in the spring of 2003, the 1991 resolution’s broad authorization was somehow extinguished."

I suggest working in the credibility factor that the UNSC members, including and especially Russia, France, and Germany, that led the international opposition to OIF were implicated in the Oil For Food scandal and complicit with Saddam breaking the UNSCR 687 arms embargo.

For example, ISG found that even as the UNSCR 1441 inspections were ramping up in late 2002, France was selling UNSCR 687-proscribed anti-aircraft technology to Iraq. If OIF hadn't happened in March 2003 and the illegal French sale had gone through, then the US and UK presumably would have continued to enforce the UNSCR 688 humanitarian no-fly zones versus newly purchased UNSCR 687-proscribed French anti-aircraft technology.

Clarifying that the casus bellli [belli] was Iraq's evidential noncompliance, and not the pre-war intelligence estimates, sets the stage to highlight the fault of Saddam's accomplices on the UNSC who increased Saddam's threat, exacerbated his harm, and helped cause OIF by encouraging and enabling Saddam's intransigent choice to breach rather than comply and disarm in his "final opportunity to comply" (UNSCR 1441). More on that below.

Nitpick:
UNSCR 678 was adopted in 1990, not 1991.

Criticism:
The choice of frame that "International law permitted the use of force against Iraq on two independent grounds" was a compounding political error. I agree with Jeanne [Jeane] Kirkpatrick that the Bush administration should have hewed to the well established compliance basis for enforcement with Iraq and should not have tacked on a claim of intelligence-based anticipatory self-defense as an "independent" cause of action.

I appreciated your fine explication of the Caroline test and your well-reasoned argument that it should adjust for modern threats. But the novel character of the intelligence-based anticipatory self-defense argument for OIF, no matter how sensible, should have warned President Bush's legal advisors that it was unwise to claim it as an "independent" basis for OIF's casus belli.

It looks like Bush's legal advisers were getting ahead of themselves in trying to set a modern precedent for intelligence-based anticipatory self-defense. Instead of trying to set a precedent with "independent grounds" for OIF, you should have incorporated the component parts of anticipatory self-defense in the established compliance-based case against Saddam for future reference, while making sure to strictly frame the case against Saddam with the well established operative context of the UNSCR 660-series compliance enforcement.

In fact, the defense and compliance enforcement grounds were already related because Saddam's threat was defined as and measured by the "threat [of] Iraq's non-compliance with Council resolutions" (UNSCR 1441), ie, Iraq's ceasefire breach. Saddam's noncompliance was demonstrably evidential and thus indisputable, and it was plainly stated as the casus belli in the operative US law, policy, and precedent, and UNSCRs. Yet the Bush administration's "independent" 2nd claim of intelligence-based anticipatory self-defense enabled anti-OIF propagandists to obfuscate in the politics that Saddam's evidential ceasefire breach was the casus belli.

Evidence of Bush's legal advisors getting ahead of themselves is exemplified in your statement, "In future cases, the possession of WMD and signs of hostile intent must be taken into account in deciding whether to use force preemptively. That decision will rely, in part, on intelligence about a rogue nation’s WMD programs, their ability to acquire components and technical knowledge, and their ability to assemble a weapon."

Instead of trying to litigate "future cases", you should have stayed focused on the task at hand of properly reiterating the long established case against Saddam, wherein the threat of Saddam's WMD was not primarily defined by and based on the intelligence. Rather, the threat of Saddam's WMD was primarily defined by the UNSCR 687 mandates and based on Iraq's evidential noncompliance in the operative context of Iraq's burden to prove it disarmed upon the UNSCOM/IAEA-established fact of Iraq's proscribed armament. The pre-war intelligence, if raised at all, should have been carefully presented only as supporting indicators of Iraq's noncompliance within the operative context of the "threat [of] Iraq's noncompliance" (UNSCR 1441) and Saddam's burden of proof, not as "evidence" for an "independent" cause of action that obfuscated the well established, operative grounds for enforcement.

The "independent" 2nd claim of intelligence-based anticipatory self-defense opened the door for anti-OIF propagandists to shift the burden of proof and assert the legally inapposite but politically viral claim that the legitimacy of OIF rested on proving the predictive precision of pre-war estimates.

It was a dumbfounding mistake. The Clinton administration spoon-fed its successor a long developed mature compliance-based case for regime change against intransigently noncompliant Saddam. As you explained, President Bush properly carried forward the compliance-based case against Saddam. Yet Bush [officials] also chose to deviate from his predecessor by tacking on an [inapposite] "independent" 2nd claim that relied on misrepresenting speculative pre-war estimates of Saddam's secret holdings as "evidence" of specific armament. That's an obviously improper use of intelligence in general, and worse in the specific instance, the struggle of Western intelligence to assess Saddam's WMD versus rigorous Iraqi counter-intelligence was well known by the time that Bush entered office.

Worse still, the notion of finding WMD in Iraq to match the pre-war estimates was always unrealistic. The UNSCR 687 disarmament process, OIF invasion, and post-war occupation were not designed to seize, guard, and preserve evidence in order to later prove the predictive precision of the pre-war estimates. If the burden of proof was shifted to the US to prove the predictive precision of the pre-war estimates, then of course, OIF would be de-legitimated given that Saddam had a long, practically free hand to conceal, alter, and destroy evidence before and during the ex post ISG investigation.

See my rebuttal to Gordon Brown's new argument against OIF for a proper apposite presentation of the compliance-based case for regime change against Saddam.

Given that intelligence analysis is by nature inexact, then how does the leader of the free world sufficiently enforce against a rogue nation's WMD threat while also guarding against ex post accusations like Brown's conjectural accusation of conspiracy? The answer is rigorously upholding a UNSCR 687-type disarmament process which establishes and presumes the rogue nation's guilt of proscribed armament, and fixes the burden of proof on the rogue nation to comply and disarm in accordance with a comprehensive "governing standard". Clarify that noncompliance, rather than intelligence, establishes threat and triggers enforcement.

Evidential noncompliance with a robust disarmament process, such as the justification for Operation Desert Fox, not only the intelligence, can define (and with Operation Iraqi Freedom should have defined) the WMD threat to establish the justification for anticipatory self-defense.

The takeaway from the 2002-2003 enforcement with Sad[d]am for "future cases" should have been to fix up and strengthen the compliance-based UNSCR 687 model as the gold standard for disarming rogue nations. On the facts, according to the compliance-based operative law, policy, and precedent that actually defined the OIF decision, the case against Saddam was a slam dunk. Saddam's guilt of "material breach" (UNSCR 1441) was decided by UNSC and has been confirmed and corroborated as categorical. In the operative context, the OIF decision was correct.

But the Bush administration's ham-handed attempt to tack on an "independent" 2nd claim in order to set a modern precedent for intelligence-based anticipatory self-defense enabled anti-OIF propagandists to shift the burden of proof in the politics so that the legitimacy of OIF pivoted on proving the predictive precision of inherently inexact intelligence estimates despite that the disarmament process, invasion, and occupation were not designed to seize, guard, and preserve evidence for that kind of proof.

President Clinton, the Yale JD, was savvy enough to strictly hew to the operative compliance basis of the case against Saddam. The members of President Bush's team who convinced the Harvard MBA to tack on the "independent" 2nd claim of intelligence-based anticipatory self-defense - when they should have incorporated the component parts into the well established compliance-based case against Saddam - are responsible [share responsibility] for the political, policy, and real harms that have drastically compounded from that deviant, inapposite, uncalled for, stupid error.

Suggestion:
Regarding the national security priority to prevent rogue nations from committing terrorism with WMD or supplying terrorists with WMD, cite President Clinton's Presidential Decision Directive/NSC-39 (21JUN95) as a background reference.

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Also see Decision Points suggests President Bush has not read key fact findings on Iraq carefully and Rebuke of and advice to Charles Duelfer.

For more exposition on the "independent" 2nd claim of intelligence-based anticipatory self-defense in addition to the John Yoo monograph linked in the e-mail, see The Legality of Using Force Against Iraq by Christopher Greenwood (2002), War, Responsibility, and the Age of Terrorism by John Yoo (2004), Less than Bargained for: The Use of Force and the Declining Relevance of the United Nations by John Yoo and Will Trachman (2005), Preventive War by Gary Becker (2004), and Preventive War by Richard Posner (2004).

Eric

Critique of Christopher Hitchens's answer to Jon Stewart

PREFACE: Columbia University and University of Texas law professor Philip Bobbitt thought I'd enjoy journalist Christopher Hitchens's argument for the Iraq intervention on the August 25, 2005 episode of The Daily Show with Jon Stewart. My critique of Hitchens's answer to Stewart is adapted from my response to Professor Bobbitt.

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Christopher Hitchens's answer to Jon Stewart makes for a good teaching example because, one, it's popularly considered a model defense of the Operation Iraqi Freedom (OIF) regime change, yet two, Hitchens's answer was critically flawed. Watch it, then read my critique:

Did I enjoy Hitchens's response? Well, I appreciate that Hitchens put forth the public effort that's needed from like-minded pundits to set the record straight on OIF.

However, I'm critical of the argument he made. If Hitchens were still alive, I'd convey my work to him to shore up his presentation. Hitchens's answer wasn't wrong per se, but his unanchored if scholarly take on the Iraq issue is better suited to an academic discussion in a collegial setting. Whereas the political forum in which Hitchens answered Stewart is more like the adversarial settings in which I've honed my legally based take on the Iraq issue.

The critical flaw in Hitchens's answer is he neglected to establish the contextual frame with the operative thread that's needed to properly evaluate his points and tie them together: namely, that President Bush's decision on Iraq fundamentally upheld the US-led, UN-mandated compliance enforcement of the Gulf War ceasefire terms purpose-designed to resolve Iraq's Gulf War-established manifold threat.

To set the proper frame with the operative context, Hitchens should have opened his answer with 'Saddam breached the Gulf War ceasefire in his final opportunity to comply'. Once the operative context is established, then everything else can be placed in proper order and effectively brought to bear to clarify the Iraq issue.

For example, in the operative context:

Hitchens should have grounded his main argument for the Iraqi regime change by noting that his criterions for loss of sovereignty — i.e., genocide, harboring "gangsters"/terrorists, violation of the Nonproliferation Treaty, and/or aggression — were in fact manifested in the Gulf War ceasefire mandates. UNSCRs 687, 688, and 949 explicitly covered Hitchens's criterions and were featured as such in Public Law 107-243.

If he had established the operative context properly, Hitchens could have proffered the same essential viewpoint but elevated his argument from a personally preferred policy theory referring to general international norms to the actual Iraq-specific enforcement procedure for the "governing standard of Iraqi compliance" (UNSCR 1441) defined by the concrete law, policy, and precedent that President Bush carried forward from Presidents HW Bush and Clinton and faithfully upheld in his Office.

Hitchens should have corrected Stewart's mischaracterization in detail, e.g., contra Stewart, President Bush's decisions with Iraq tracked the US laws and UNSC resolutions that defined the Gulf War ceasefire enforcement.

Hitchens should have explained that the Gulf War ceasefire compliance enforcement assigned Saddam a probationary status and threat evaluation that distinguished Iraq from the other international bad actors that Stewart named. (Note that Stewart's "What about ..." is a typical anti-war rhetorical tactic.) The ceasefire mandates provided for a procedural measurement of Saddam's outstanding threat. Iraqi noncompliance equated to Iraqi threat, and it's confirmed that Saddam's threatening breach of the ceasefire terms was categorical.

Hitchens should have clarified that President HW Bush didn't simply leave Saddam in power in 1991. Rather, the Gulf War was suspended with a comprehensive set of reformative conditions that Iraq was obligated to fulfill in order to make the ceasefire permanent. In fact, by May 1991 at the latest, President HW Bush had an active regime change policy versus the noncompliant Saddam regime. The regime change policy was carried forward and progressed under President Clinton.

Hitchens should have shown that the interval between Desert Storm and Operation Iraqi Freedom was not a flat delay. Rather, it involved a progression that exhausted the lesser compliance enforcement measures against Saddam's intransigence. Operation Desert Fox (ODF) in 1998 was the penultimate military enforcement action in the continuum. The stopgap, last measure before Iraq's "final opportunity to comply" (UNSCR 1441) was the post-ODF ad hoc 'containment', which Saddam and his accomplices had broken by 2000-2001. The ultimate military enforcement action, the OIF regime change that responded to Saddam's failed "final opportunity to comply" (UNSCR 1441) in order to “bring Iraq into compliance with its international obligations” (P.L. 105-235), was the coda of the progression.

Clarifying that OIF was the coda of a progression engages President Clinton's preceding enforcement with Iraq. If Hitchens had made the ceasefire enforcement connection, he could have cited Presidents Clinton and Bush together to correct Stewart's mischaracterization.

As it was, Hitchens should have corrected Stewart by at least clarifying President Bush's compliance-based case against Saddam, which carried forward President Clinton's compliance-based case against Saddam. Bush's case against Saddam was really Clinton's case against Saddam, updated from 9/11, and Bush's enforcement procedure for OIF carried forward Clinton's enforcement procedure for ODF. Clinton's decision for ODF completed the operative set of law, policy, and precedent that set the stage for OIF.

Hitchens should have clarified the OIF regime change was fundamentally a compliance enforcement measure. Public Law 105-338 legislated the regime change solution for the noncompliant-Saddam problem that was already a long active executive policy. The preamble for the Iraq Liberation Act of 1998 was about Saddam's noncompliance with the ceasefire mandates. P.L. 105-338 paired with P.L. 105-235, which mandated the President to bring Iraq into its mandated compliance.

The Gulf War ceasefire mandates included Iraq renouncing terrorism in view of Saddam's terrorist threat in the Gulf War. Citing to paragraph 32 of UNSCR 687 would have provided a stronger frame for Hitchens's description of Saddam's terrorism.

Consider the difference between opinion and correction, then compare the construction of Hitchens's argument to the dialectical structure of the OIF FAQ, and imagine the ways that setting a proper frame with the operative context would have helped Hitchens answer Stewart and clarify the Iraq issue for the public.

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Related: Regarding pundits and David Brooks's "Saving the System".

Eric

Rebuttal of Prime Minister Brown's memoir argument against Operation Iraqi Freedom

PREFACE: Gordon Brown served as Prime Minister of the United Kingdom from 2007 to 2010. My rebuttal criticizes Prime Minister Brown's claim of American conspiracy on Saddam's WMD, assertion the Iraq intervention was unjustified, and choice to end British peace operations with Iraq. A comment for liberal advocates regarding PM Brown's argument against OIF follows the rebuttal. Enjoy:

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In his November 5, 2017 The Guardian article, Gordon Brown says Pentagon misled UK over case for Iraq invasion, Michael Savage relates "an explosive new claim from [former UK prime minister] Gordon Brown" that the "US defence department knew that Saddam Hussein did not have weapons of mass destruction but kept Britain in the dark".

The "explosive new claim" that the Pentagon secretly knew Saddam had no WMD and kept that knowledge from the UK is the premise for Prime Minister Brown's new memoir argument that Operation Iraqi Freedom (OIF) was unjustified:

Brown states that had the evidence been shared, history could have been different. ... ["]If I am right that somewhere within the American system the truth about Iraq’s lack of weapons was known, then we were not just misinformed but misled on the critical issue of WMDs.

“Given that Iraq had no usable chemical, biological or nuclear weapons that it could deploy and was not about to attack the coalition, then two tests of a just war were not met: war could not be justified as a last resort and invasion cannot now be seen as a proportionate response.”

However, Brown's premise for his argument, the "US defence department knew that Saddam Hussein did not have weapons of mass destruction" (Savage), is flawed.

First, on its face, the evidence cited by Brown does not support the notion that the Pentagon knew the status of Saddam's WMD. Rather, the The Guardian article describes a Pentagon report that assessed pre-war intelligence estimates as "analysis of imprecise intelligence. These assessments, the report said, relied ‘heavily on analytic assumptions and judgment rather than hard evidence.[']" (Brown).

In other words, as described in the article, the cited Pentagon report made no statement on the status of Saddam's WMD. Rather, it amounted to a 2nd-derivative assessment of pre-war intelligence estimates. Equivalent 2nd-derivative assessments of British pre-war intelligence estimates, such as Dr. Brian Jones's dissent, are discussed in the UK 2004 Review of Intelligence on Weapons of Mass Destruction chaired by Lord Butler. Furthermore, the Butler review shows that British decision-makers relied on British intelligence estimates rather than American intelligence estimates. Brown neglects to explain why an American 2nd-derivative assessment would have swayed UK leaders above the British 2nd-derivative assessments that said practically the same thing.

The Butler review and its American counterpart, the Silberman-Robb Commission, explain that the extreme difficulty of gathering "hard evidence" about Saddam's WMD was familiar to British and American leaders tasked with the duty of enforcing Iraq's Gulf War ceasefire-mandated compliance. The operative role of the intelligence in the UNSCR 687 disarmament process was assisting the UN weapons inspections that tested Iraq's compliance with the UNSCR 687 disarmament mandates. As Iraqi counter-intelligence expertly adapted, intelligence analysts depended on data from the UN weapons inspections, which were also well opposed by Iraqi counter-intelligence. When the UN weapons inspections were cut off in 1998, so was the principal source of data on Saddam's WMD. As such, in the operative context of the decision for OIF, intelligence estimates based on "analysis of imprecise intelligence" were understood to be necessitated by Iraq's effective "denial and deception operations" (Iraq Survey Group), which in and of themselves violated UNSCR 687, not as evidence of Brown's conspiracy.

Second, Brown's premise that "Saddam Hussein did not have weapons of mass destruction" contradicts the operative context of the OIF decision and the fact record.

In the operative context of the OIF decision, Iraq's guilt of proscribed armament was established fact by UNSCOM and IAEA in the UNSCR 687 disarmament process and presumed until Iraq proved it disarmed in accordance with the "governing standard of Iraqi compliance" (UNSCR 1441). The mandated question of Saddam's WMD was never for the US, UK, and UN to answer. Iraq was obligated to answer the question in accordance with UNSCR 687. The intelligence was weighed in the operative context of the established fact of Saddam's WMD with the burden on Iraq to prove the mandated compliance and disarmament.

As such, Brown's premise elides that the determination "Saddam Hussein did not have weapons of mass destruction" was not for the Pentagon to make in the first place. The determination of disarmament could only be made by Iraq proving it had disarmed as mandated. Gauging Iraq's compliance with UNSCR 687 and related resolutions was the necessary measuring stick for Iraq's WMD-related threat due to Saddam's commitment to "concealment and deception activities" (ISG) throughout the Gulf War ceasefire, including the final UNSCR 1441 inspection period. Iraq's proscribed items and activities that could be demonstrated in hand were not the main WMD-related threat because the violations that could be demonstrated could be corrected as mandated. Rather, Iraq's main WMD-related threat was the proscribed items and activities that could not be accounted for due to Saddam's "denial and deception operations" (ISG). Answering the question of Iraq's proscribed items and activities was not guesswork. It was not even intelligence work, where Western intelligence was evidently outmatched by Iraqi counter-intelligence. Gauging Iraq's compliance with the "governing standard of Iraqi compliance" (UNSCR 1441) was the mandated way to answer the question.

For Saddam's "final opportunity to comply" (UNSCR 1441), Hans Blix and UNMOVIC asked Iraq to answer for Saddam's WMD as mandated, and Iraq answered that Saddam did not disarm as mandated, e.g., "With respect to stockpiles of bulk agent stated to have been destroyed, there is evidence to suggest that these was [sic] not destroyed as declared by Iraq." Iraq was obligated to prove "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441) in order to switch off the capacitating threat of regime change, yet in 2003, the UNSCR 1441 UNMOVIC inspections found Iraq made no significant disarmament progress from the UNSCR 1205 UNSCOM inspections that had triggered Operation Desert Fox (ODF) in 1998. UNMOVIC's confirmation of Iraq's "continued violations of its obligations" in Saddam's "final opportunity to comply" (UNSCR 1441) thus triggered OIF. Following the regime change, the Iraq Survey Group (ISG) corroborated Iraq's "material breach" (UNSCR 1441) of the UNSCR 687 mandates.

Brown's assertion "Iraq had no usable chemical, biological or nuclear weapons that it could deploy" elides that Saddam did not account for his WMD stocks with the UNSCR 1441 inspections, and subsequently in his stead, ISG was unable to account for Saddam's WMD stocks as mandated, e.g., "ISG cannot determine the fate of Iraq’s stocks of bulk BW [biological weapon] agents ... There is a very limited chance that continuing investigation may provide evidence to resolve this issue." In fact, in many instances where ISG cited a lack of evidence, it meant the evidence required for a definite determination was missing or lost, not that absence of evidence was evidence of absence.

ISG's non-findings, which are prevalently interpreted in the politics as unequivocal evidence of absence, are in fact predominantly attributed to evidentiary gaps due to rigorous regime operations and information security practice that prevented evidence, "many of these [WMD-related] sites were sanitized by the Regime", and other "concealment and destruction efforts" before and during the ISG investigation. The UNSCR 687 disarmament process placed the burden of proof on Iraq and hence was not like a crime-scene forensic investigation that searched for evidence while guarding carefully against the contamination or loss of physical evidence in a controlled area. Carrying the burden to prove the mandated disarmament upon the established fact of Iraq's proscribed armament, Saddam was in effect allowed by the UN weapons inspections to hide, alter, or destroy evidence of proscribed armament. Iraq's "concealment and deception activities" (ISG) only hindered Iraq from proving it disarmed according to the “governing standard of Iraqi compliance” (UNSCR 1441). Therefore, despite its name, the ISG report should be read as a floor, not a complete survey of Saddam's WMD.

The notion of demonstrating that Saddam's WMD matched pre-war estimates was always unrealistic since, as a practical matter, the UNSCR 687 disarmament process, OIF invasion, and post-war occupation were not designed for that kind of proof. If legitimacy pivoted on ISG proving the pre-war intelligence estimates were predictively precise, rather than the operative context of Iraq proving it complied and disarmed as mandated, then of course the Iraq intervention likely would be de-legitimated given that Saddam's forces had a long, practically free hand to manipulate the evidence before and during the ex post investigation. And in fact, the ISG report is heavily qualified with caveats about significant limitations to its reach and scope, including that much evidence of Iraq's specific armament was missing or lost.

For example, although the chemical weapon (CW) munitions missed by ISG and confiscated under Operation Avarice are often devalued as older stocks, they nonetheless were still dangerous, were proscribed under UNSCR 687 and further corroborated Iraq's "material breach" (UNSCR 1441), and bore out ISG's caveat "ISG cannot discount the possibility that a few large caches of munitions remain to be discovered within Iraq."

Brown's premise that "Saddam Hussein did not have weapons of mass destruction" also contradicts that the ISG findings are rife with violations across the board of the UNSCR 687 mandates. Comparison of the ISG report to the pre-war intelligence and 2nd-derivative assessment described by Brown shows that much of the "analysis of imprecise intelligence" has been substantiated and areas where Saddam's WMD-related activity was underestimated. Despite evidentiary gaps and other practical limitations, ISG was able to confirm Saddam's rearmament intent and Iraq had in fact been undertaking WMD-related activity for years, including a clandestine active program run by the Iraqi intelligence services (IIS) with a "large covert procurement program" and a secret chemical and biological laboratory network that "provided an ideal, compartmented platform from which to continue CW agent R&D or small-scale production efforts" (ISG), chemical and biological "dual-use" capabilities (including an obviously suspect "BW agent simulants" capability) that were readily convertible for larger production, illicit missile and nuclear development, and "fragmentary and circumstantial" evidence of greater WMD-related activity, including indications of BW production.

In short, Brown's argument is premised on evidence, i.e., a 2nd-derivative assessment, that fails on its face to substantiate his conspiracy theory. Further, Brown's notion the Pentagon "knew that Saddam Hussein did not have weapons of mass destruction" contradicts the operative context of the UNSCR 687 disarmament process, the UNSCOM-established fact of Saddam's WMD, the UNMOVIC-established fact that Saddam did not disarm his WMD, other nations' intelligence on Iraq, and the ISG findings of Saddam's WMD intent and capabilities. Brown's assertion "Iraq had no usable chemical, biological or nuclear weapons that it could deploy" also elides that Iraq failed to account for Saddam's WMD with UNMOVIC and ISG's non-findings are heavily qualified.

If for the sake of argument one accepts the unproven notion that Iraq secretly unilaterally eliminated all its "militarily significant WMD stocks" (ISG) outside of the Gulf War ceasefire-mandated disarmament process before the pre-war intelligence estimates were formulated, that still leaves intact the primary threat assessment of noncompliant Saddam's unaccounted for armament and Iraq in breach of the ceasefire. Practically speaking, too, there is thin threat margin between battlefield-ready WMD stockpile and Saddam's confirmed WMD intent and capabilities. Iraq's WMD threat was measured by the UNSCR 687 mandates, which proscribed more items and activities than battlefield-ready WMD stockpile, notwithstanding that Brown's arbitrary standard for Saddam's WMD is considerably more permissive than the "governing standard of Iraqi compliance" (UNSCR 1441).

The thin threat margin shrinks further with the IIS's previously undetected WMD and terrorism capabilities that were found by the Iraq Survey Group and Iraqi Perspectives Project (IPP) investigations. The post-war assessments of Saddam's IIS substantiate President Bush's warning in the 2003 State of the Union, "Before September the 11th, many in the world believed that Saddam Hussein could be contained. But chemical agents, lethal viruses and shadowy terrorist networks are not easily contained." The criteria for "usable chemical, biological or nuclear weapons that it [Iraq] could deploy" (Brown), such as the CW munitions confiscated under Operation Avarice, are different for military and terrorist methods. The IIS's "ideal, compartmentalized platform from which to continue ... small-scale production efforts" (ISG) may not have been scaled for production on the military level, but it was scaled for production on the terrorism level. Counter-terrorism is intrinsically preventive because terrorist threat is not detected and tracked as readily as military threat, yet Brown's judgement "two tests of a just war were not met" ignores Saddam's vastly underestimated IIS-run "regional and global terrorism" (IPP), which included "considerable operational overlap" (IPP) with the al Qaeda network and "the top ten graduates of each Fedayeen Saddam class were specifically chosen for assignment to London, from there to be ready to conduct operations anywhere in Europe" (IPP). Of course, Saddam's "regional and global terrorism" (IPP) and deployment of terrorists to London violated the aggression and terrorism-related terms of the Gulf War ceasefire to add on to the justification for OIF.

Alongside his flawed conception of the WMD aspect of the Iraq issue, Prime Minister Brown also evinces a flawed conception of "just war" and "proportionate response" in the context of the OIF regime change that successfully brought Iraq into its mandated compliance after Saddam declined his "final opportunity to comply" (UNSCR 1441):

“I am convinced that if resolutions of the United Nations are approved unanimously and repeatedly they have to be upheld if we are to have a safe and stable world order,” he writes. “On this basis, Saddam Hussein’s continuing failure to comply with them justified international action against him.

“The question is whether it required war in March 2003. ...

“Given that Iraq had no usable chemical, biological or nuclear weapons that it could deploy and was not about to attack the coalition, then two tests of a just war were not met: war could not be justified as a last resort and invasion cannot now be seen as a proportionate response.”

The basic premise of the manifold ceasefire terms was "the need to be assured of Iraq's peaceful intentions in the light of its unlawful invasion and occupation of Kuwait" (UNSCR 687). Brown elides that the de jure and essential threat was the noncompliant Saddam regime, not the WMD in and of itself. Brown's arbitrary standard for his judgement "two tests of a just war were not met" obfuscates the operative context of the OIF decision wherein UNSCR 1441 "Recogniz[ed] the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security". The set condition meant Saddam's threat, including his WMD-related threat, was measured by Iraq's evidential noncompliance with the ceasefire terms purpose-designed to resolve Saddam's Gulf War-established manifold threat, not by Brown's misrepresented 2nd-derivative assessment. The US, UK, and UN were not obligated to predict and demonstrate any of Saddam's WMD to justify enforcement. At the decision point, the WMD-related "threat [of] Iraq's non-compliance" (UNSCR 1441) was confirmed by Hans Blix and UNMOVIC's measurement of "about 100 unresolved disarmament issues".

WMD was not the only "critical issue" (Brown) that weighed on the OIF decision. "Saddam Hussein's continuing failure to comply with them" (Brown) equated to the continuing "threat [of] Iraq's non-compliance with Council resolutions" (UNSCR 1441) related to aggression (UNSCR 949), WMD and conventional armament (UNSCR 687), terrorism (UNSCR 687), and repression (UNSCR 688). Today, with corroboration of Iraq's noncompliance piled high from the UNSCR 1441 inspections and post-war ISG, IPP, IIC, and UNCHR investigations — e.g., "[i]n addition to preserved capability, we have clear evidence of his [Saddam's] intent to resume WMD" (ISG), "the Saddam regime regarded inspiring, sponsoring, directing, and executing acts of terrorism as an element of state power" (IPP), and "[t]he new evidence, particularly that of eyewitnesses, added another dimension to the systematic crimes of the former regime, revealing unparalleled cruelty" (UNCHR) — Iraq's threatening breach of the Gulf War ceasefire can now be seen as categorical.

At the same time, the modern theory of just war is not limited to defensive action. Modern just war theory also encompasses the "use [of] all necessary means" (UNSCR 678) for the international compliance enforcement of the UNSCR 660 series and humanitarian intervention per UNSCRs 688 and 1483 that defined OIF. Brown's judgement "two tests of a just war were not met" is inapposite on its face since his arbitrary standard mismatches the "governing standard of Iraqi compliance" (UNSCR 1441). According to the operative enforcement procedure for the "governing standard of Iraqi compliance" (UNSCR 1441), the OIF decision was triggered by Hans Blix and UNMOVIC's confirmation of Iraq's "continued violations of its obligations" in Saddam's "final opportunity to comply" (UNSCR 1441), which confirmed the UNSC decision "Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687" (UNSCR 1441). Saddam failed his "final" compliance test well short of the mandated "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441). Iraq's UNMOVIC-confirmed UNSC-decided breach of the Gulf War ceasefire was casus belli.

Therefore, in the operative context of the OIF decision, proportionate response to the "threat [of] Iraq's non-compliance with Council resolutions" (UNSCR 1441) was marked by the measures needed to "bring Iraq into compliance with its international obligations" (Public Law 105-235). In that regard, Brown's assertion, according to Savage, that “peaceful options for disarmament” had not been exhausted contradicts that Saddam had exhausted the non-military and lesser military enforcement measures over a decade-plus of intransigent noncompliance with the UNSCR 660 series, conclusively failed his "final opportunity to comply" (UNSCR 1441) with the UNSCR 1441 inspections, and ISG confirmed Saddam "never intended" to comply and disarm as mandated. By 1998, President Clinton and Congress had concluded regime change was the only realistic way to bring Iraq into its mandated compliance. In fact, the UNSCR 1441 "final opportunity to comply" in 2002-2003 marked Saddam's second final chance after Clinton had pronounced "Iraq has abused its final chance" when Saddam triggered ODF in 1998.

Blair officials, unlike Bush officials, were on duty for the 1998 penultimate compliance push with UNSCRs 1154, 1194, and 1205 that ran aground with ODF and the aftermath of Saddam's increased intransigence. As the veteran ceasefire enforcers on Blair's team would (or should) have understood better than the newer Bush team, by the point of ODF in 1998, military threat of regime change was requisite to induce even a deficient degree of Saddam's mandated cooperation because he was already well on his way to breaking the sanctions. After Saddam successfully called the ceasefire enforcers' bluff with ODF and then nullified the ceasefire, including (and especially) UNSCR 687, in Iraqi law, the bar was raised for mustering the credible threat of regime change that was prerequisite for restoring the UN inspections-centered compliance process.

Saddam established from the outset of the UNSCR 660 series that the negotiatory "spiral" model of defusing conflict only encouraged his malfeasance. Drawing out even deficient cooperation from Saddam required leveraging with credible threat according to the "deterrence" model. Yet the ODF bombing campaign used up the penultimate military enforcement measure in 1998 and the non-military threat of sanctions was de facto neutralized by 2000-2001. "As UN sanctions eroded there was a concomitant expansion of activities that could support full WMD reactivation" (ISG) even before UNSCOM failed in 1998 with "military reconstitution efforts starting in 1997" (ISG). The post-ODF ad hoc 'containment' relied chiefly on the constraint of sanctions and thus was collapsed by 2000-2001, if it ever worked at all. Saddam was on the verge of victory and knew it because he had earned it. ISG found "The Regime’s strategy was successful to the point where sitting members of the Security Council were actively violating the resolutions passed by the Security Council." UNSC members that opposed OIF were implicated in the Oil For Food scandal and complicit with Saddam breaking the UNSCR 687 arms embargo.

For British and American leaders confronting the festering "threat [of] Iraq's non-compliance" (UNSCR 1441) in 2002, there were no other expedients left to apply leverage with Saddam except the ultimate measure of unsuspending the Gulf War in response to Iraq's breach of ceasefire. The UNSCR 678 mandate 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" did not obligate the US, UK, and UN to exhaust the lesser enforcement measures over a decade-plus in the face of noncompliant Saddam's escalating intransigence, threat, and harm until the UNSCR 660-series compliance enforcement was on the verge of defeat. But that's what they did. Ultimately, in Iraq's "final opportunity to comply" with "full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions" (UNSCR 1441), Saddam recycled his "tactics of delay and deception" (Clinton) in concert with his accomplices on the Security Council to undermine the capacitating threat and foreclose reliance on further diplomatic efforts to enforce all relevant UNSC resolutions regarding Iraq.

Given the real alternatives at the decision point, Brown's view that OIF "could not be justified as a last resort and invasion cannot now be seen as a proportionate response" contradicts his simultaneous view that the Gulf War ceasefire "resolutions ... ha[d] to be upheld if we are to have a safe and stable world order". The decision point for Bush and Blair was in effect a binary choice: regime change to bring Iraq into its mandated compliance or else give in to Saddam's intransigent noncompliance. Once the despot responded to Iraq's "final opportunity to comply" (UNSCR 1441) by again calling the ceasefire enforcers' bluff, the effective real alternative to OIF was compromising the "governing standard of Iraqi compliance" (UNSCR 1441) and discrediting the last remaining leverage to let noncompliant and unreconstructed, ambitious and aggressive, practically uncontained and rearming, sectarian terrorist and tyrant Saddam slough off Iraq's international obligations.

The real alternative to OIF at the decision point was not available to President Bush under the operative US law and policy to "ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq" (Public Law 107-243). Accommodation with the "threat [of] Iraq's non-compliance" (UNSCR 1441) was not an option. I assume the same is true in the UK mandate for Prime Minister Blair who had helped President Clinton build the operative enforcement procedure that President Bush faithfully carried forward to enforce Saddam's "final opportunity to comply" (UNSCR 1441).

Finally, Prime Minister Brown should be taken to task for his admission that "the moment he [Brown] took office in 2007, he planned to pull British troops out of Iraq well before the Americans" (Savage). It's striking that Brown concocted his abandonment of the Iraqi people in the same historical moment, i.e., the heart of the counterinsurgency "surge" and Sahwa "awakening", that the coalition's peace operations were the most needed by the Iraqi people and doing the most good versus the vicious illiberal forces attacking post-Saddam Iraq. Brown fingers himself as the British leader responsible for the profoundly inhumane mistake that paved the way for current Middle East crises: the premature withdrawal of the necessary peace operations from Iraq. Incredibly, Brown comes off as self-righteous about his course-setting error:

“At this time I made another decision: not to use our future departure from Iraq as an occasion to draw a contrast with Tony or score points against him either,” he writes.

That being said, it's possible that President Obama was committed regardless of British input to his disastrous radical course deviation of contravening the Strategic Framework Agreement and removing the essential US peace operations from Iraq, and dropping President Bush's Freedom Agenda and reneging Obama's own pledge to the Arab Spring activists. Nonetheless, we can speculate what difference it might have made had Brown strategically positioned the UK where it could have at least tried to stop the US from Obama's deviation.

As it happened, Brown led the way in taking the wrong turn with Iraq. He has the least excuse because Brown, unlike Obama, was on duty for the heart of the counterinsurgency "surge" and Sahwa "awakening", so Brown should have understood what was at stake. Yet Brown still chose to make the profoundly inhumane, course-setting error of prematurely withdrawing UK peace operations from Iraq, which at least encouraged and possibly enabled Obama's subsequent US error with Iraq. Which, along with the defamation of the Iraq intervention, set the path for the feckless Western response to the illiberal actors who hijacked the Arab Spring by avidly exploiting the vacuum created first by Brown and followed by Prime Minister Cameron and President Obama.

Prime Minister Brown should have stayed the course. Instead, his inhumane commitment to abandoning the Iraqi people "well before the Americans" empowered illiberal actors to generate a destructive ripple effect in and outside Iraq. Brown ought to be held to account for his fundamental error of prematurely withdrawing UK peace operations from Iraq to which he has added a fundamental misrepresentation of the Iraq issue to rationalize his mistake.

The OIF decision demonstrably was correct on the law and facts. The actual case against Saddam is validated. Prime Minister Blair and President Bush were right on Iraq; not perfect, which would have been abnormal for leadership in a world-changing contest of war and peace, but they were strategically wise, ethically humane, and competitively resolute. Operation Iraqi Freedom was justified.

By-line: [Eric] is a graduate of Columbia University and Rutgers School of Law, and clarifies and relitigates the Iraq issue at Operation Iraqi Freedom FAQ.

Postscript:

The Guardian's article about Prime Minister Brown's argument against OIF was jarring. On the substance, his argument is readily rebuttable. Which makes it jarring that a UK PM that close to OIF — indeed, the UK PM on duty for the heart of the Surge and Sahwa — would proffer that kind of argument in the 1st place. It shows the problem growing worse. Keeping in mind the OIF stigma is the purposeful strategic heir to the still powerfully influential Vietnam War stigma, it's not going to scab over and heal on its own. The revisionist stigmatization of the Iraq intervention is a progressive cancer that's spreading at the premise level of politics and policy with no immune response fighting it. Brown's argument is bad enough within the Iraq issue, but it also broadly implicates the Pentagon, the US, the US-UK relationship, and the effectual reach of liberal international enforcement.

His premature withdrawal of UK peace operations from Iraq was profoundly inhumane and harmfully course-setting, yet incredibly, Brown appears to be perversely proud of his error. His new memoir position on the Iraq issue ought to be setting off alarm bells for IR liberals everywhere, let alone the US and UK. It ought to function as a call to action for concerted, resolute, sufficient corrective on the Iraq issue in the politics — now.

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Related: Criticism of Prime Minister Blair's response to the Chilcot report.

Eric

Decision Points suggests President Bush has not read key fact findings on Iraq carefully

I finally read the Iraq-related sections of President Bush's memoir, Decision Points (2010). That's not an oversight. While Bush's post-presidency reflections are interesting and worth reviewing for their corroborative and background value, they're not essential for an issue-rule, fact pattern-type analysis of the Iraq issue which refers to primary source material from his presidency.

Most of what President Bush wrote about Iraq in Decision Points aligned as expected with my research.

However, I was surprised by several statements that suggest President Bush has not read key fact findings on Iraq's "material breach" (UNSCR 1441) — namely, the UNMOVIC, Iraq Survey Group (ISG), and Iraqi Perspectives Project (IPP) reports — carefully. I guess he's read summaries of the WMD-related fact findings rather than the reports directly. Based on Bush's characterization of Saddam's terrorism, I believe he hasn't read the IPP report at all.

I block-quote President Bush's suspect statements and respond to them. I may have overlooked suspect statements on the Iraq issue, but these should provide a representative sample.

Bush:

Later, many of the assertions in Colin's speech would prove inaccurate.

President Bush is incorrect. In fact, nearly all the main points of Secretary of State Powell's 05FEB03 case presentation to the UN Security Council are substantiated.

Many of Powell's points on Iraq's WMD weren't "assertions" (Bush) at all but rather reiteration of the operative enforcement procedure and the fact record established by UNSCOM/UNMOVIC and IAEA in the decade-plus course of the UNSCR 687 disarmament process.

When I say "substantiated", I don't necessarily mean the intelligence-estimated details Powell presented were proven to be predictively precise, but rather that the substantive element in Powell's point was validated.

For example, the Iraq Survey Group did not find “mobile production facilities used to make biological agents” (Powell). However, ISG confirmed "secret biological work in the small IIS [Iraqi intelligence service] laboratories discovered by ISG" and “The UN deemed Iraq’s accounting of its production and use of BW [biological weapon] agent simulants—specifically Bacillus subtilis, Bacillus lichenformis, Bacillus megaterium and Bacillus thuringiensis to be inadequate … the equipment used for their manufacture can also be quickly converted to make BW agent.”

Moreover, ISG did not conclusively determine the extent of Saddam's BW program. Rather, ISG was unable to account for the fate of much of Iraq’s BW agents, stocks, and equipment due to Iraq’s “denial and deception operations” and “concealment and destruction efforts” in breach of UNSCRs 687 and 1441. ISG also noted "fragmentary and circumstantial" evidence of greater WMD-related activity, including BW production.

The only part of Powell’s speech that falls down in hindsight, knowing what we know now, is the extent to which the Saddam regime sought fissile material for the ISG-confirmed Iraqi Atomic Energy Commission (IAEC) modernization program.

Bush:

Kay conducted a thorough search of Iraq and found irrefutable evidence that Saddam had lied to the world and violated Resolution 1441.

The second part of Bush's statement is correct. By procedure, Iraq's violation of UNSCRs 687 and 1441 established casus belli.

However, the first part of the statement was the first thing in Decision Points that made me suspect President Bush has not read the ISG report firsthand.

In fact, the Iraq Survey Group was not able to conduct a "thorough search of Iraq" (Bush). As David Kay informed the Senate Armed Services Committee on January 28, 2004:

I regret to say that I think at the end of the work of the [Iraq Survey Group] there's still going to be an unresolvable ambiguity about what happened.
A lot of that traces to the failure on April 9 to establish immediately physical security in Iraq -- the unparalleled looting and destruction, a lot of which was directly intentional, designed by the security services to cover the tracks of the Iraq WMD program and their other programs as well, a lot of which was what we simply called Ali Baba looting. "It had been the regime's. The regime is gone. I'm going to go take the gold toilet fixtures and everything else imaginable."
I've seen looting around the world and thought I knew the best looters in the world. The Iraqis excel at that.
The result is -- document destruction -- we're really not going to be able to prove beyond a truth the negatives and some of the positive conclusions that we're going to come to. There will be always unresolved ambiguity here.

ISG was able to corroborate UNMOVIC's confirmation of Iraq's WMD-related "material breach" (UNSCR 1441) of the Gulf War ceasefire. But as a "thorough" account of Saddam's WMD, the ISG report falls short. The Iraq Survey Group's findings are heavily qualified with caveats about significant limitations to the reach and scope of the post hoc investigation, including that the Saddam regime was expert at hiding proscribed items and activities, much evidence was lost prior to, during, and after the war, key regime officials were not forthcoming, statements conflicted, suspect areas were found "sanitized", and other practical factors, such as the terrorist insurgency, impaired the ISG investigation. As such, ISG's findings constituted a floor, not a "thorough" account of Saddam's WMD.

Even if ISG had been able to conduct a thorough post-war search of Iraq, it still would not have been a reliable account of Saddam's WMD because the pre-war UNSCR 687 disarmament process was not like a crime-scene forensic investigation that searched for evidence while guarding carefully against the contamination or loss of physical evidence in a controlled area. Carrying the burden of proof, Saddam was in effect allowed by the UN weapons inspections to hide, alter, or destroy evidence of proscribed armament — which ISG confirmed happened. Iraq's known denial and deception only hindered Iraq from meeting its burden to prove it disarmed according to the “governing standard of Iraqi compliance” (UNSCR 1441). For that matter, the OIF invasion and post-war occupation also were not designed to scour for, guard, and preserve evidence.

Bush:

But there was one thing Kay did not find: the WMD stockpiles everyone expected.
...
I had a sickening feeling every time I thought about it.

That expectation, however widespread, was incongruous with the operative enforcement procedure and practical circumstances. Again, the UNSCR 687 disarmament procedure was designed upon Iraq's burden of proof to provide a total verified account of its proscribed armament with no obligation on the US and UN to demonstrate it. Therefore, the UN weapons inspections that preceded the ISG investigation were not designed to guard carefully against the contamination or loss of physical evidence. Neither were the OIF invasion and post-war occupation designed to scour for, guard, and preserve evidence.

Case in point. Although the ISG account of Iraq's WMD stocks is usually represented as unequivocal, it is in fact heavily qualified in the ISG report:

With the degradation of the Iraqi infrastructure and dispersal of personnel, it is increasingly unlikely that these questions will be resolved. Of those that remain, the following are of particular concern, as they relate to the possibility of a retained BW capability or the ability to initiate a new one.

• ISG cannot determine the fate of Iraq’s stocks of bulk BW agents remaining after Desert Storm and subsequent unilateral destruction. There is a very limited chance that continuing investigation may provide evidence to resolve this issue.
• The fate of the missing bulk agent storage tanks.
• The fate of a portion of Iraq’s BW agent seed-stocks.
• The nature, purpose and who was involved in the secret biological work in the small IIS laboratories discovered by ISG.

...
ISG’s investigation of Iraq’s ammunition supply points—ammunition depots, field ammunition supply points (FASPs), tactical FASPs, and other dispersed weapons caches—has not uncovered any CW [chemical weapon] munitions. ISG investigation, however, was hampered by several factors beyond our control. The scale and complexity of Iraqi munitions handling, storage, and weapons markings, and extensive looting and destruction at military facilities during OIF significantly limited the number of munitions that ISG was able to thoroughly inspect.

• ISG technical experts fully evaluated less than one quarter of one percent of the over 10,000 weapons caches throughout Iraq, and visited fewer than ten ammunition depots identified prior to OIF as suspect CW sites.
• The enormous number of munitions dispersed throughout the country may include some older, CW-filled munitions, and ISG cannot discount the possibility that a few large caches of munitions remain to be discovered within Iraq.

I appreciate that Bush "had a sickening feeling" over the Iraq Survey Group not finding battlefield-ready WMD stockpiles. And I could understand if he made a strategic choice to deemphasize the shortcomings of the ISG investigation while President. But not acknowledging the qualified nature of the ISG account in his memoir, despite the potential political impact, strikes me as an oversight rather than a purposeful choice.

Bush:

While the world was undoubtedly safer with Saddam gone, the reality was that I had sent American troops into combat based in large part on intelligence that proved false.

I agree with the first part of Bush's statement. On the second part, yes and no.

I address this issue in the OIF FAQ answer to "Did Bush lie his way to war with Iraq". Note especially parts 5 to 7 of the answer.

President Bush is correct that the pre-war intelligence estimates were predictively imprecise, and the intelligence community is fairly criticized concerning its tradecraft but with the understanding that demonstration of WMD to match the pre-war estimates was not an element of the "governing standard of Iraqi compliance" (UNSCR 1441) that determined casus belli, the effectualness of Iraqi counter-intelligence denial and deception was known, and ISG's non-findings — the basis of criticism — are heavily qualified, so it's indeterminate how much the estimates were off the mark. The political demand to prove that pre-war estimates of Saddam's secret inventory were predictively precise was inapposite of and practically incompatible with the UNSCR 687 disarmament process and an abnormal treatment of intelligence in general.

At the same time, Bush is not correct to say the "intelligence ... proved false". ISG's heavily qualified non-findings do not make for a proven disposition and the pre-war intelligence correctly indicated Saddam was illicitly reconstituting Iraq's conventional armament and WMD capabilities in violation of UNSCR 687 for casus belli. Much of the underlying data of Iraq's "material breach" (UNSCR 1441) was sound: the baseline fact of Saddam's WMD established by UNSCOM and IAEA, the ISG-confirmed data of Iraq's illicit procurement and activities, and the UNSCR 1441-inspection findings that triggered enforcement.

Bush:

That was a massive blow to our credibility — my credibility — that would shake the confidence of the American people. No one was more shocked or angry than I was when we didn't find the weapons.

The President should not have been shocked. The notion of demonstrating that Saddam's WMD matched the pre-war intelligence estimates was always unrealistic since the UNSCR 687 disarmament process, OIF invasion, and post-war occupation were not designed for that kind of proof. If the Iraq intervention's legitimacy pivoted on proving the pre-war estimates were predictively precise, then of course it likely would be de-legitimated given that Saddam's forces had a long, practically free hand to conceal, alter, and destroy evidence before and during the ISG investigation.

Nonetheless, the UNMOVIC and ISG findings are rife with UNSCR 687 violations. With the burden of proof on Iraq to cure the "continued violations of its obligations" (UNSCR 1441), the pre-war intelligence estimates should not have been positioned politically to overshadow Saddam's evidential categorical breach of the "governing standard of Iraqi compliance" — including the UNSCR 687 WMD mandates — in Iraq's "final opportunity to comply" (UNSCR 1441).

Bush blames the "intelligence failure on Iraq's WMD" for the political controversy, but President Bush should blame himself for enabling the political controversy by deviating from the standing precedent of President Clinton's presentation of the case against Saddam. In accordance with the operative enforcement procedure, Clinton cited to Iraq's noncompliance as "clear evidence of a weapons of mass destruction program". Clinton didn't cite to the intelligence at all when justifying his Gulf War ceasefire enforcement. Yet inapposite of the compliance-based enforcement that Bush faithfully carried forward from Clinton, Bush officials improperly characterized speculative estimates as "evidence" of Saddam's secret inventory. The intelligence, if cited at all, should have been properly characterized as indicators of Iraq's "material breach" (UNSCR 1441). In some cases, such as records of Iraq's illicit procurement, the intelligence did qualify as evidence in hand of the Saddam regime violating UNSCR 687.

In Decision Points, President Bush compounds the "massive blow to our credibility" enabled by his presentation error by fixating on "Kay did not find: the WMD stockpiles everyone expected" at variance with the actual case against Saddam, overlooking the qualified nature of the ISG account, and barely crediting the raft of UNSCR 687 violations reported by UNMOVIC and ISG that confirmed Iraq's "material breach" (UNSCR 1441) of the Gulf War ceasefire.

Bush:

If Saddam didn't have WMD, why wouldn't he just prove it to the inspectors?
...
Saddam still had the infrastructure and know-how to make WMD.

Bush answers his question by referring to Saddam's policy of bluffing Iran and Saddam wrongly evaluating the US-led threat of regime change. Which is correct, but incomplete.

A more complete answer is Saddam wouldn't prove he didn't have WMD to the UNSCR 1441 inspections because he couldn't — Iraq was in fact heavily violating the UNSCR 687 WMD mandates.

The notion, "Saddam didn't have WMD", assumes a narrow definition of WMD proscription inapposite to the US-enforced "governing standard of Iraqi compliance" (UNSCR 1441) that Saddam violated to trigger Operations Desert Fox and Iraqi Freedom. Yet on September 12, 2002, President Bush reiterated the (paraphrased) UNSCR 687 standard to the UN General Assembly, "If the Iraqi regime wishes peace, it will immediately and unconditionally forswear, disclose, and remove or destroy all weapons of mass destruction, long-range missiles, and all related material."

UNMOVIC verified Iraq's "continued violations of its obligations" (UNSCR 1441) to establish casus belli, and then the Iraq Survey Group, notwithstanding its practical limitations, was able to confirm Saddam was guilty of many UNSCR 687 violations:

Iraq was in clear violation of the terms of [U.N.] Resolution 1441. Resolution 1441 required that Iraq report all of its activities -- one last chance to come clean about what it had. We have discovered hundreds of cases, based on both documents, physical evidence and the testimony of Iraqis, of activities that were prohibited under the initial U.N. Resolution 687 and that should have been reported under 1441, with Iraqi testimony that not only did they not tell the U.N. about this, they were instructed not to do it and they hid material. [Kay, 28JAN04]

Bush's phrasing, "Saddam still had the infrastructure and know-how to make WMD," connotes a holdover quality. But ISG found more than retained Gulf War-vintage infrastructure and know-how, although that would have been sufficient by itself to violate UNSCR 687 and corroborate Iraq's "material breach" (UNSCR 1441). The chiefly sanctions-based 'containment' was de facto neutralized by 2000-2001, and "[a]s UN sanctions eroded there was a concomitant expansion of activities that could support full WMD reactivation" (ISG) even before UNSCOM failed in 1998 with "military reconstitution efforts starting in 1997" (ISG). ISG confirmed Saddam was applying the funds from the Oil For Food scandal to illicitly reconstitute a broad array of conventional arms, military infrastructure, and nuclear, biological, chemical, and missile research, development, and production capabilities with a "large covert procurement program" under cover of "denial and deception operations".

Saddam was bluffing, which by itself violated UNSCRs 687 and 1441 for casus belli. But Saddam wasn't only bluffing, and it's not clear how much he was bluffing. Iraq was hiding many UNSCR 687-proscribed items and activities, including IIS and production capabilities. When viewed with the operative lens of the "governing standard of Iraqi compliance" (UNSCR 1441), the facts show Saddam was rearming. Due to the ISG investigation's practical limitations and evidentiary gaps that Bush doesn't acknowledge in Decision Points, the Iraq Survey Group can offer a guess, but ISG can't be sure about the fate of all Saddam's secret stores and the extent Iraq's WMD program was reconstituted. For example, the CW munitions missed by ISG and confiscated under Operation Avarice bore out ISG's caveat "ISG cannot discount the possibility that a few large caches of munitions remain to be discovered within Iraq."

Regarding the casus belli for OIF, the Iraq Survey Group is sure that "the Iraqis never intended to meet the spirit of the UNSC’s resolutions" and "ISG judges that Iraq failed to comply with UNSCRs".

Bush:

Saddam could have turned to Sunni terrorist groups like al Qaeda — a marriage of convenience, not ideology — as surrogates in an attempt to match Iran's use of Shia terrorist groups like Hezbollah.

President Bush appears not to have read the IPP report. His statements on Saddam's terrorism in Decision Points seem to be grounded in the pre-war assessment of Saddam's terrorism, which to be fair, was already sufficient to satisfy the counter-terrorism element of OIF's casus belli.

However, the post-war analyses by the Iraqi Perspectives Project and UN Commission on Human Rights (UNCHR) show pre-war assessments underestimated Saddam's "regional and global terrorism" (IPP) in breach of UNSCR 687 and "widespread terror" (UNCHR) ruling Iraq in breach of UNSCR 688.

Bush is correct to say that "Saddam could have turned to Sunni terrorist groups like al Qaeda" because there is ample evidence that Saddam was already deeply engaged with Sunni terrorist groups including al Qaeda. Jim Lacey, who authored the IPP report, concluded based on the IPP and ISG findings, "Given the evidence, it appears that we removed Saddam’s regime not a moment too soon."

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President Bush's suspect statements in Decision Points look like the popular yet misleading summaries that conceal that the UNMOVIC and ISG reports are rife with disarmament violations, and the often-cited ISG conclusion, "it appears that Iraq, by the mid-1990s, was essentially free of militarily significant WMD stocks", is more equivocal than it's usually portrayed. In fact, the ISG report's non-findings are heavily qualified due to the procedural and practical character of the UNSCR 687 disarmament process and other factors that impaired ISG's post hoc investigation. As such, the ISG findings of UNSCR 687-proscribed armament constituted a floor only, not a complete account of Saddam's WMD.

It's possible that Bush was simply trying to be unsparing in his memoir. But his harsh self-recrimination can only misinform the public by obscuring that the burden of proof was on Saddam, which Bush does reiterate in Decision Points, the UNSCR 1441 inspections verified Iraq did not disarm as mandated, and the Iraq Survey Group found many UNSCR 687 and 1441 violations. The UNSCR 660 series' enforcers were not obligated to find anything to justify enforcement: by procedure, "[r]ecognizing the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security" (UNSCR 1441), casus belli was established with UNMOVIC's confirmation of Iraq's "material breach" (UNSCR 1441) of the Gulf War ceasefire.

The political fallout enabled by his presentation error with the pre-war intelligence estimates doesn't negate that President Bush's decision on Iraq was substantively correct on the facts, procedurally correct on law and precedent, and justified on the policy. As Saddam was in violation of the spectrum of essential international norms that defined the Gulf War ceasefire, President Bush's decision on Iraq was also essentially correct for the sake of liberal international order.

Note that the above criticisms of President Bush's memoir apply as well to Prime Minister Blair's response to the Chilcot report. Regarding Blair's statement, also see my criticism of his "apology" and my commentary about the post-war setbacks.

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PREFACE: On October 19, 2017, President Bush announced the George W. Bush Institute Human Freedom Initiative's The Spirit of Liberty: At Home, In the World, a new project advocating "freedom, free markets, and security". I e-mailed the following recommendation to Ken Hersh, the George W. Bush Presidential Center President and Chief Executive Officer, Holly Kuzmich, the George W. Bush Institute Executive Director and Senior Vice President, and the Human Freedom Initiative's general contact. Reference.

from: Eric
to: [Ken Hersh], [Holly Kuzmich], humanfreedom@bushcenter.org
date: Thu, Oct 19, 2017 at 5:45 PM
subject: You must clarify the Iraq issue to effectually advocate the spirit of liberty at home, in the world

Mr. Hersh, Ms. Kuzmich, and the George W. Bush Institute Human Freedom Initiative,

I support your campaign to champion the revival of American leadership of the free world that President Bush heralded today in New York City.

However, your political effort will be constantly undermined by the prevalent conjecture, distorted context, and misinformation that have obfuscated the Iraq issue and stigmatized Operation Iraqi Freedom (OIF). The prevailing OIF stigma, in addition to shading President Bush and his namesake organization, is purposefully applied as keystone premise in the politics to degrade the essential international norms and neutralize the vital enforcement principles that embodied with the paradigmatic US-led compliance enforcement of the UNSCR 660 series with Iraq. The "Spirit of Liberty" campaign advocates the same fundamental set of norms and principles that are purposefully degraded and neutralized by the OIF stigma.

For your political effort to be effectual, your team must publicly clarify — relitigate — the pivotal Iraq issue in order to re-lay the foundation of the politics at the premise level. The People at home and in the world must be made to understand that President Bush's decision for OIF was correct on the law, justified on the policy, and right on essential principle. That the US and our allies demonstrably were right on Iraq. And OIF opponents demonstrably have been revisionist and wrong.

To equip you for that contest, here is my explanation of Operation Iraqi Freedom's law and policy, fact basis: https://learning-curve.blogspot.com/2014/05/operation-iraqi-freedom-faq.html.

The OIF FAQ post synthesizes the controlling law, policy, and precedent and determinative facts that define the OIF decision. Its FAQ-style framework is oriented on the usual main talking points of the revisionist anti-OIF narrative. Hewing to the bedrock of the primary source authorities is the most effective way to correct the prevalent conjecture, distorted context, and misinformation that have obfuscated the Iraq issue.

In other words, the OIF FAQ is essentially the relitigation of the Iraq issue that Governor (Jeb) Bush should have undertaken when he was confronted with the Iraq issue during the 2015-2016 presidential campaign. "Knowing what we know now", President Bush's decision on Iraq demonstrably was correct on the law and facts.

You're trying to do the right thing, and it's needed. But to make headway, you must re-lay the foundation of the politics by clarifying the Iraq issue to the public. If you have questions about my work, please ask.

[See 2015 advice to Republican presidential candidates, How Republicans should talk about the Iraq issue.]

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Also see Criticisms and suggestions for "International Law and the War in Iraq" (John Yoo, 2003) and Rebuke of and advice to Charles Duelfer.

Eric