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MANDATE
FOR REGIME CHANGE Professor Bruce Ackerman, of the Yale Law School, recently made one of the most comprehensive arguments for the proposition that new legal authorizations are needed. In an August 18 Washington Post op-ed, he juxtaposes what he perceives to be the fundamental difference between the way former President George H. W. Bush, and President George W. Bush have approached the Iraqi problem. Bush 41, according to Ackerman, chose to uphold the rule of law and, therefore, sought and obtained authorization for the 1991 Gulf War from both the U.N. and Congress. He argues that, by contrast, Bush 43 is so committed to unilateralism that, "freed from the restraints of the Security Council abroad and Congress at home, [his] imperial presidency claims the authority to strike preemptively at any danger." Despite this soaring rhetoric, Ackerman's assessment of the legal and constitutional principles underlying President Bush's Iraqi policy is incorrect. To begin with, both Congress and the Security Council have already authorized military operations against Saddam Hussein. The grants of authority, obtained by Bush 41 1990-91, remain perfectly valid today. When Iraq occupied Kuwait in 1990, the Security Council adopted, pursuant to its authority under Chapter VII of the U.N. Charter, a series of resolutions directed at Iraq. These resolutions authorized the use of military force, both to drive Saddam from Kuwait and "to restore international peace and security in the area." Kuwait has been liberated, but there is no reasonable argument that peace and security have been restored to the region. Iraq has never complied with its cease-fire agreements — obligations both to disarm and to demonstrate to the international community that it has done so — no peace treaty has ever been concluded, and the Security Council has never revoked its original resolutions. Indeed, both the United States and Great Britain have been continuously prosecuting military operations against Iraq under the authority of those resolutions since 1991, enforcing the so-called "no-fly" zones in the country's north and south, and periodically attacking Iraqi military targets (including just his past week). Occasionally, fighting has escalated. The most recent major military operation was undertaken by President Clinton in 1998 and was code-named Desert Fox. This action went on for a period of several days, and a number of important Iraqi military targets were destroyed. The fact that the original U.N. authorizations for the use of force against Saddam Hussein's regime are now over a decade old does nothing to diminish their force and effect under international law. The Security Council has in place many resolutions that are much older than those authorizing military action against Iraq, that continue in full force and effect. Examples include various Israel-related resolutions dating to the 1940s, 1950s, 1960s and 1970s, as well as the 1950s resolutions authorizing the Korean War. There has been no suggestion that these resolutions are no longer effective because of their hoary pedigree. Thus, even if one subscribes to Ackerman's belief that Security Council authorization is necessary before the United States, or any other nation, can use force, that requirement has been already satisfied. The same is true with respect to congressional authorization. In advance of Desert Storm, Congress passed Public Law 102-1. This law authorized the use of force to enforce the Security Council's resolutions against Iraq, which went beyond the liberation of Kuwait, and it too remains in full force today. Both President Clinton and President Bush have launched attacks on Iraqi targets under this law, and both have made periodic reports to Congress as required by the law. The last such report was filed this year. In addition, to the extent the administration has evidence that Saddam Hussein's agents were involved in the September 11, 2001, attacks on the United States, or that he has harbored al Qaeda members, the president also could rely on Congress's authorization for the use of: "all necessary and appropriate force against those nations, organizations, or persons [that the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . . " To be sure, as Ackerman correctly points out, the administration has not yet explicitly made such a claim, but this does not mean that no such evidence exists — apart from an apparent meeting between9/11 terrorist Mohammad Atta and an Iraqi intelligence officer in Prague — or that it will not be produced when the time comes. Thus, while seeking a renewed expression of congressional support, perhaps in the form of a joint resolution, may well be politically advisable, the necessary legal basis for the administration's "regime change" strategy vis — vis Iraq already exists. In truth, what Ackerman appears really to want is a second set of Security Council and congressional authorizations. LOOKING
FORWARD Secretary Webster, however, was deliberately stating the doctrine narrowly, in an effort to constrain its use by a more powerful Britain. Actual state practice, always a better indicator of what international law provides than the statements of politicians, suggests a far broader application. Over the past 400 years or so, there have, in fact, been many examples of states taking preemptive action to protect their vital interests. In 1587, for example, English warships attacked ports in Spain and Portugal in an effort to forestall the sailing of the Spanish Armada, then still in the planning stages. In 1801, another British fleet attacked the Danish navy in Copenhagen harbor, in order to prevent the use of Danish ships against British interests during the Napoleonic wars. A similar attack was launched, this time involving land operations as well, in 1807, again to ensure that Danish naval assets did not fall into French hands. More recently, in 1967, Israel preemptively attacked Egypt, Syria, and Jordan and, in 1981, it destroyed an Iraqi nuclear reactor. Similarly, in 1986, President Reagan ordered attacks against terrorist targets in Libya, to prevent them from acting in the future against U.S. interests. In 1982, Britain claimed a 150-mile exclusion zone around the Falkland Islands as a preventive measure and, in 1983, Sweden asserted the right to use armed force against any foreign submarine sailing within 12 miles of her territorial sea. All of these actions can be justified only by a right of anticipatory self-defense. STRATEGIC
OPTIONS In making the case for a robust American military response, President Kennedy emphasized such factors as the purpose of the Soviet deployments — "to provide a nuclear strike capability against the Western Hemisphere" — the fact that the buildup was "secret, swift and extraordinary" — the notion that the Soviet conduct amounted to "a deliberately provocative and unjustified change in the status quo which cannot be accepted by this country, if our courage and our commitments are ever to be trusted again by either friend or foe" — and last, but not least, the point that the Soviet leaders had been lying through their teeth about their actions. The U.S. threat assessment was also shaped by our perception that Soviet leader Khrushchev has engaged in nuclear saber rattling, threatened the United States, in Berlin and elsewhere, and may have been irrational and impulsive. Kennedy's bottom-line conclusion was that, in a nuclear age, a precipitous effort by an avowed American foe to change the strategic balance of power was enough of a threat to American security to justify the resort to an anticipatory self-defense doctrine. Instead of acknowledging these strategic factors prompting Kennedy's decision, Ackerman merely notes that President Kennedy "relied on the regional peacekeeping provisions of the U.N. Charter." However, those provisions (found in Chapter VIII), do not permit a regional organization, such as the Organization of American States (OAS), to operate as the Security Council's surrogate. During the Cuban Missile Crisis, the foundation of both the right of the United States, and the OAS, to take action against the Soviet Union and Cuba was their inherent right of individual and collective self-defense, including the right of anticipatory self-defense. In fact, the October 23, 1962, OAS resolution supporting the quarantine of Cuba specifically described the threat to the security of the Western Hemisphere posed by the installation of offensive Soviet missiles. As a matter of international law, the imprimatur of regional organizations, while perhaps valuable as a matter of diplomatic legitimacy, is of no particular value. A group of states has no more right to use force than any one of its nation-state members. It is quite ironic that Professor Ackerman, in his quest to constrain the circumstances in which a nation-state can legitimately use force and to exalt the role of Security Council, has no problems with endowing regional organizations with powers that are derived from neither the U.N. Charter, nor the customary international law. In any case, even if Webster's very narrow articulation of anticipatory self-defense is accepted as correct, the United States can meet that test in the case of Iraq. The "immediacy" that Webster emphasized must be judged in context. The weapons, and delivery systems, of today are as different from those of 1837 — when smooth bore muskets were standard issue — as those muskets were from the weapons of the Bronze Age. The margin of safety — the real factor to be measured by "immediacy" — a state may properly insist on today is far broader, given the far more lethal nature of available weapons. It is established that Saddam Hussein already has weapons of mass destruction in the form of weaponized biological agents and poison gas, and is frantically developing nuclear weapons and their delivery systems. Iraq has not been the subject of inspections since 1998. Two years ago, the International Atomic Energy Agency predicted, based upon its knowledge about the state of Iraqi nuclear-weapons program derived from a series of U.N.-led inspections, conducted in the aftermath of the 1991 Gulf War, and various other intelligence data, that an all-out effort by Saddam Hussein to build an operational nuclear weapon might bear fruit within two years. This time is upon us now. Moreover, contrary to the claims of the administration's critics, it is virtually impossible to predict precisely when Saddam Hussein will fully complete his build up of an arsenal of weapons of mass destruction. The past U.S. record of predicting the pace and particulars of the Soviet and Chinese nuclear-weapons programs is far from perfect. Indeed, aside from the inherent difficulties of penetrating a closed, repressive society, the pace of any complicated weapons program is impossible to gage reliably. In all likelihood, even Saddam Hussein himself may not know for sure when his efforts would fully bear fruit. Meanwhile, his use of chemical weapons against his own people, and his oft-stated hatred for the United States — which he correctly regards as the only impediment to his domination of the Arab world — make his intentions quite clear. In fact, as Henry Kissinger correctly points out, while containment and deterrence worked well against a slew of cautious and plodding Soviet leaders, they are unlikely to work against Saddam Hussein. Moreover, just was the case with Khrushchev in 1962, the facts of Hussein's lying and the existence of a long-standing and oft-articulated U.S. policy of denying him access to nuclear weapons are also important. Our failure to act would greatly diminish American credibility and weaken our security. Overall, while President Kennedy had a good anticipatory self-defense case against the Soviet Union in 1962, President Bush's case against Saddam Hussein today is much stronger. International law does not require the United States to absorb a nuclear, biological, or chemical attack before responding. Having the U.S. wait, until all of the unambiguous intelligence warnings have been fully received and processed and the case has been made beyond a reasonable doubt, is a recipe for a national disaster. In fact, the United Nations Charter, upon which Professor Ackerman also relies, does not even contemplate such a requirement. Indeed, his claim that the Charter explicitly prohibits "any state using force to cross another's border" is plainly wrong. The Charter actually prohibits the use of force in only three circumstances: (1) to seize territory; (2) to impose a colonial-style government; and (3) in a manner "inconsistent with the Purposes of the United Nations." The first among these "purposes" is the maintenance of "international peace and security." Military action designed to promote international peace and security, by removing from power a man who is seeking apocalyptic weapons to even the playing field between himself and the only country both willing and capable of thwarting his designs, and who has been thumbing his nose at the Security Council for well over a decade is entirely consistent with the U.N. Charter. Indeed, the U.N. Charter exists for the precise reason that, during the 1930s, the states of Europe failed miserably to check the not too dissimilar impulses and aspirations of Adolf Hitler. SORRY,
CONGRESS The claim that Congress has to declare war before the president can proceed is also utterly inconsistent with the 210 years of actual practice. Throughout U.S. history, Congress has declared war only five times, with the World War II being the most recent example. During this period, presidents have initiated combat at least 125 times, on many occasions without any congressional authorization. For example, the entire Korean War, which lasted for years and caused over 50,000 American casualties, was undertaken by President Truman entirely on his own authority. Ackerman's assertion that the need to secure congressional approval "is especially compelling when the President seems intent on acting without the authorization of the Security Council" is particularly puzzling. Whatever one thinks about the war-related prerogatives of the Security Council (under international law) and of Congress (under the Constitution) the relationship between the two is not obvious. Even if one assumes that the failure to seek a new Security Council authorization would constitute a violation of international law by the United States, it is not clear how seeking and gaining congressional authorization would cure this deficiency. By the same token, if, as a matter of constitutional law, the president is not required to seek congressional authorization, how does his alleged failure to comply with international law augment Congress's war-related powers? While the United States Senate has ratified the U.N. Charter, this action does not amount to, and cannot be constitutionally construed as an advance delegation of congressional war-related powers to the Security Council. About the only way in which these two of Ackerman's points can be plausibly linked, is that both Congress and the Security Council can be perceived as the means of limiting the president's war-related powers. This, of course, is a policy and not a legal proposition, and one of dubious merit. In short, both the U.N. Security Council and U.S. Congress have already authorized the use of force to effect a regime change in Iraq. These authorizations remain in force and, in and of themselves, provide sufficient basis for any U.S. military campaign against the Saddam Hussein regime. Suggestions by former Secretary of State James A. Bake, III, writing in the New York Times, for seeking a new Security Council resolution on Iraq, as part of an effort to bolster international support for the administration's regime change policy, have policy merit. Yet, the best way to accomplish this goal is to put the Security Council on notice that the administration does not need its new blessing and would proceed without it. Since the Security Council, as an institution, and its key individual members, would hate the notion of unilateral U.S. action, undertaken in the face of U.N. opposition, even more than they would dislike giving the U.S. a green light, this strategy is very likely to succeed. Moreover, given Saddam Hussein's entire past record and his ongoing conduct, the Bush administration, under the anticipatory self-defense doctrine, has a full right to engage militarily his regime without any Security Council blessings. Meanwhile, under the president's powers as the commander-in-chief and the head of the executive branch, he can also initiate military operations against Iraq without seeking congressional authorization. With the legal quandaries out of the way, the debate on Iraq should properly focus on the foreign-policy and military issues. — David B. Rivkin Jr. & Darin R. Bartram are partners in the Washington, D.C., office of Baker & Hostetler LLP. Rivkin served in the Department of Justice and the White House in the Reagan and George H. W. Bush administrations. His articles on the legal issues implicated by the Iraq debate have appeared in the Wall Street Journal and the National Review and NRO. |
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is usually the case with major foreign-policy contretemps in Washington,
the current debate over Iraq is often cast in legal or at least legalistic
terms. The skeptics talk in terms of the president making his case on
Iraq and wonder aloud what proof the administration can proffer that Saddam
Hussein has either acquired, or is about to acquire, weapons of mass destruction.
Meanwhile, the legal questions are commingled with non law-related matters.
Thus, commentators who oppose, on foreign-policy grounds, the U.S.-led
removal of Saddam Hussein invariably claim that, as a matter of law, President
Bush cannot proceed without gaining new endorsements from the U.N. Security
Council and from Congress. The debates also feature a hefty dose of partisanship;
most of Bush's current critics registered no legal objections to President
Clinton's military operations in Haiti and Yugoslavia, which, whatsoever
their policy merits, received endorsements from neither the Security Council
nor the U.S. Congress. They were quiet even during President Clinton's
operations in Iraq that took place in a similar legal context to President
Bush's contemplated actions. Yet, while the ongoing Iraq debate cannot
and should not be reduced to the issues of law — military and foreign-policy
aspects matter as well — there are serious legal questions that have
to be answered.
