The Law on the Road to Baghdad: Sorting through the issues.
>
> By David B. Rivkin Jr. & Darin R. Bartram Attys at Law Baker & Hostetler LLP
>
> As 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.
>
> MANDATE FOR REGIME CHANGE
> The most significant of them is whether, under international law and the
> Constitution, President Bush already has sufficient legal authority to
seek
> a "regime change" in Baghdad through military means, or whether he needs
> additional authorizations from the U.N. and Congress. Once these questions
> are properly analyzed, however, what emerges is a compelling conclusion
> that the administration already has all the legal authority it needs to
> commence military operations leading to Saddam Hussein's ouster. The case,
> if any, for seeking new authorizations is primarily a diplomatic and
> political one. Moreover, if the administration decides that this case is
> strong enough to merit action, the best way for it to gain new expressions
> of support from both the Security Council and Congress would be to argue
> that they are not legally needed, and that the U.S. military action
against
> Saddam Hussein is imminent.
>
> 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
> However, the existence of prior authorizations aside, there are other
> independent legal grounds that would support an American attack on Iraq.
In
> particular, the United States would be entirely within its rights to rely
> on the doctrine of "anticipatory self-defense," which permits a state to
> preempt an opponent's attack. Ackerman, of course, concedes the existence
> of this doctrine, but construes it overly narrowly. He invokes U.S.
> Secretary of State Webster's famous statement, formulated in 1837 after
> British forces had invaded New York to seize and destroy an American ship,
> which posits that a "necessity of self-defense, [must be] instant,
> overwhelming, leaving no choice of means, and no moment for deliberation."
> In his view, Bush's proposed plan to effect the regime change in Iraq
> cannot meet this standard.
>
> 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
> However, perhaps the most important modern example of the anticipatory
> self-defense doctrine's use came during the Cuban Missile Crisis, an
> incident discussed by Ackerman at some length. In 1962, the United States
> imposed a "quarantine" on Cuba, threatening to use force against Soviet
> ships delivering nuclear missiles to the island. This action was taken to
> prevent the installation of Russian medium- and intermediate-range
> offensive nuclear missiles that would have targeted U.S. territory. It was
> publicly justified as an act of defense, both of the United States and the
> Western Hemisphere, by senior U.S. government officials, up to and
> including President Kennedy. Significantly, there were absolutely no
> indications that the Soviets intended to launch these missiles immediately
> against the United States or do so at any particular time in the future.
> Both sides were operating in the context of nuclear deterrence, in which
> the reciprocal ability to threaten nuclear use was viewed as the
> cornerstone of strategic stability and the Soviet Union already possessed
a
> rudimentary long-range nuclear missile force and was building more.
>
> 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
> This brings us to the last issue - Professor Ackerman's claim that the
> president must "leave the final decision of war to Congress." Although in
> this instance, Congress has already authorized the use of force, a
> conclusion which, according to the Washington Post, the administration has
> already reached, it is worth noting that the notion that the president
> cannot initiate the use of military force without congressional
> authorization is not supported by the historical experience amassed during
> the Articles of the Confederation period, which led to the Philadelphia
> Convention and shaped its deliberations, by constitutional text, and the
> ratification debates. While there were some disagreements among the
Framers
> over the precise division of war-related powers between the two political
> branches, the Constitution grants to Congress the ability to declare war,
> understood primarily as a power to alter, for domestic and international
> purposes, the applicable legal norms, e.g., the power to seize the
property
> of belligerents or to detain enemy aliens, while the president has the
> power to commence hostilities and prosecute war. Indeed, there is nothing
> in the Constitution that empowers Congress to authorize the president to
> use force. Hence, when Congress authorizes the president to act, but does
> not bother to "declare war," its action has primarily political and
> symbolic value, and is not endowed with any particular constitutional
> significance. The main congressional check against the president's
military
> overreaching is the power of the purse, which was, for example, used to
> bring to an end the U.S. involvement in the Vietnam conflict.
>
> 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