The OLC Memoranda on Iraq: Revisiting the Case for War

Yesterday, the Office of the Legal Counsel of the US Department of Justice released some of its secret memoranda to President Bush, several of which are of interest for international lawyers. Two of them deal with questions of IHL, that is the applicability of the Third Geneva Convention to the Taliban, and of the Fourth Geneva Convention to the occupation of Iraq. Three memos, on the other hand, provide the OLC’s advice to the President on the legality of the use of force against Iraq, both under US constitutional law and under international law.I’d like to say a few words about these three memos (authored by the same indomitable Bybee/Yoo team of torture memo fame), both on the quality of their substantive analysis and on the boundaries of the proper role of government legal advisers.

I’d also like to compare these memos of US legal advisers with those of their British counterparts, particularly the opinion of the then Attorney General, Lord Goldsmith.

The most important of the three opinions was signed by Jay Bybee on 23 October 2002 (Iraq Opinion). In its third part (at 17 ff), it gives two possible justifications for the US use of force against Iraq: (implied or implicit) UN Security Council authorization and (anticipatory or pre-emptive) self-defense. The second opinion, signed by John Yoo on 8 November 2002, deals with the impact of UNSC Resolution 1441 on the implied authorization argument made in the previous Iraq Opinion (1441 Opinion). The third opinion was also signed by Yoo, on 7 December 2002, and it addresses the issue whether false declarations on WMD by Iraq would constitute a further material breach of Resolution 1441 (Material Breach Opinion).

My first impression of the Iraq Opinion was, well, that it was less dreadful than the infamous torture memos, and considerably so. Particularly when it comes to the implied UNSC authorization argument, the memo makes a reasonable case. In short, the argument is that by issuing Resolution 678 the UNSC authorized force against Iraq in 1991; that authorization was suspended, but not terminated by Resolution 687, which imposed a conditional cease fire. Since Iraq was in material breach of the conditions of the cease fire due to its failure to disarm, provide access to arms inspectors etc., the 678 authorization was revived.

Now, I happen to believe that this argument is wrong, but it is not obviously wrong or unreasonable. It is not just that several scholars, such as Ruth Wedgwood or Yoram Dinstein, have advocated this position. The US can also invoke the force of precedent, in regard of Iraq in particular, where it together with the UK relied on this revival argument for several uses of force against Iraq prior to 2003. Indeed, the UN Secretary-General at the time, Boutros Boutros Ghali, appears to have endorsed this position on one occasion.

There are, however, several things that I find striking about the OLC analysis in the Iraq opinion. The first is the drawing of an analogy between the (suspended, but not terminated) 678 authorization and some sort of treaty relationship between the US in Iraq (at 18 ff). For the OLC, the jus ad bellum relationship between the US and Iraq is essentially bilateral. If Iraq is in a material breach, as determined by the US, then the US can resume hostilities. The UNSC and the machinery of collective security are entirely out of the picture. Indeed, the UNSC need not even determine that there was a material breach, because the existence of a breach is an “objective fact”, let alone decide on what would be an appropriate remedy for that breach, e.g. the use of force (at 22-23).

When it comes to self-defense, the OLC argues (in my view correctly) that it cannot be confined solely to situations where an armed attack has already occurred, but also applies to situations where such an attack is imminent (for example, if there are tanks massing on its border and the threatened state knows that they are going to attack in the morning). The OLC discusses, inter alia, the famous Caroline incident on the necessity of self-defense, which must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

However, the OLC proposes that this criterion of imminence and necessity must be redefined in relation to the magnitude of the threat that the US is faced with from the possible use of WMD by terrorist groups (at 36, 43-44), and concludes as follows:

The use of force in anticipatory self-defense must be necessary and proportional to the threat. As outlined above, however, we believe that, at least in the realm of WMD and international terrorism, the test for determining whether a threat is sufficiently “imminent” to render the use of force necessary at a particular point has become more nuanced than Secretary Webster’s nineteenth-century formulation. Factors to be considered include: the probability of an attack; the likelihood that this probability will increase, and therefore the need to take advantage of a window of opportunity; whether diplomatic alternatives are practical; and the magnitude of the harm that could result from the threat. See Travalio, supra at 172 (while use of force in self-defense against terrorists need not meet the Caroline standard for imminence, “there must be a substantial likelihood that the threat will become manifest before it can be eliminated by means other than the use of military force”). If a state instead were obligated to wait until the threat were truly imminent in the temporal sense envisioned by Secretary Webster, there is a substantial danger of missing a limited window of opportunity to prevent widespread harm to civilians. As the President recently cautioned: “If we wait for threats to fully materialize, we will have waited too long.” Remarks by the President at 2002 Graduation Exercise of the United States Military Academy, West Point, New York, at 2 (June 1, 2002) available at http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html (last visited June 26, 2002). Finally, in an age of technologically advanced delivery systems and WMD, international law cannot require that we ignore the potential harm represented by the threat. (at 44)

This anticipatory self-defense redefined of course bears no semblance to the Caroline model. It is not interceptive, but entirely pre-emptive. Indeed, it is not self-defense at all, but merely the use of force when a state considers it to be necessary. Particularly striking is the inverse relationship that the OLC draws between the probability or imminence of an attack and the magnitude of potential harm – the greater the harm, the lesser the imminence needed.

Just as an illustration of how this is nothing like self-defense, there is a very small, but non-zero risk that the (now apparently broken) Large Hadron Collider in Switzerland can create a black hole capable of destroying the Earth. Poof, and all existence is gone for good. In the OLC’s argument, this immense potential harm would offset the extremely small likelihood of the harm occurring, and would give the US the right to, say, bomb Switzerland in self-defense. (cf. Iraq Opinion, at 47). When it comes to determining this overwhelming necessity, the OLC considers that this determination is entirely in the hands of the US President (at 45-48).

This brings me to the way that the OLC uses authority: the most important authority for the OLC seems to be the OLC itself. It thus relies on its own previous opinions regarding uses of force by the US as controversial as the Cuban Missile Crisis or Panama as proof that these uses of force were, in fact, lawful (at 36 ff). When it speaks of state practice, it is actually referring to United States practice, not to how this practice was seen and assessed by other states, as evidence of opinio juris necessary for the establishment of a customary rule. The possibility (let alone the probability) that this US practice was generally seen as unlawful is not acknowledged.

Contrary authority and arguments are rarely, if ever, discussed. They are often casually dismissed, while the OLC’s analysis is portrayed as ironclad and beyond any doubt. For example, the 1998 US and UK airstrikes against Iraq, where the revival argument was first used, were extremely controversial, yet all we get from the OLC on the matter is a dismissive footnote (at 25, n. 30).

Once you read this opinion, it becomes apparent that the OLC did not really answer the question that it was officially asked to, namely “whether the President has the authority, under both domestic and international law, to use military force against Iraq” (at 1, emphasis added).Instead of providing policy makers with legal advice that would outline the whole gamut of possible arguments, and assess the reasonableness and prospect of success of each and every one, the OLC presents arguments which are on any objective assessment extremely controversial (on the fringe, even) as pretty much unimpeachable, and at no point does it explain their weaknesses. What the OLC does, in other words, is not advice, but apology.

Compare the OLC opinion to that of their British counterpart, the Attorney General, Lord Goldsmith. In his confidential memo to the Prime Minister (here and here), Lord Goldsmith outlined both of the possible justifications given by the OLC, that is the revival or implicit UNSC authorization argument, and self-defense. Besides differences in style (the Goldsmith opinion is much more concise and does not suffer from the (compensatory) obsessive citations that one find in the OLC memo), the Goldsmith opinion gives the policy maker both the pros and the cons of each argument. While the OLC memo drips with confidence, the Goldsmith opinion is characterized by caution. Thus, for example, he states in relation to the revival argument that

In reaching my conclusions, I have taken account of the fact that on a number ofprevious occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a “reasonable case” does not mean that if the matter ever came before a court I would be confident that the court would agree with this view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 [of Resolution 1441] do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained. However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing like as great as it is today. (para. 30)

Indeed, Lord Goldsmith was even more cautious in his advice before he heard the views of US (presumably OLC) lawyers on the drafting of Resolution 1441, which impressed him with their sincerity and strength (para. 23). Of interest are also the opinions of Christopher Greenwood, who advised Lord Goldsmith at the time (here and here). Though somewhat less cautioning in tone, because they were given in his personal capacity, they are nonetheless far more realistic, and less apologetic, than the OLC memoranda.

Of course, even Lord Goldsmith’s advice provoked significant public controversy in the UK, since in his statement before Parliament he argued that the use of force against Iraq was authorized by the UNSC, omitting all the caveats found in his confidential opinion (see here and here). But at least in confidence he gave his government sufficiently balanced legal advice, that allowed them to weigh their options and make their policy choices.

Not so with the OLC. Their advice on anticipatory self-defense in particular was so outlandish that it was in the end not formally relied on by the United States to justify its use of force against Iraq, with the only relevant justification being the revival argument (generally on the methodology developed by the ICJ in the Nicaragua case as mandating that only formal legal justification professed by states should be taken into account in assessing the legality of the use of force, see this excellent article by Dino Kritsiotis in the EJIL).

The revival or implicit UNSC argument is, as I’ve said, more reasonable, though still far from mainstream. It has been criticized most recently by the eminent Lord Bingham, the now retired Senior Law Lord, in his Grotius lectures. Likewise, the UNSC itself has in its practice since the Iraq war taken great pains to preclude any reliance on implicit authorization arguments, by expressly reserving for itself any future decision on the use of force. (See, for example, Resolution 1696 (2006) in regard of Iran, at op. para. 8; and Resolution 1718 (2006) in regard of North Korea, at op. para. 16).

Reasonable its ultimate conclusion or not, however, there is much that is questionable in the OLC’s methodology and its disregard for contrary authorities, as if it was its position that was in the mainstream, and not the other way around. Most problematically, the OLC acts as if the regime of collective security established by the Charter simply did not exist. Its analysis is entirely unilateralist in nature – all assessments of fact, necessity and so on are to be made by the US and the US alone, never by the UNSC. Knowing their politics and past work, Yoo’s and Bybee’s unilateralism hardly comes as a surprise. But a government lawyer is still supposed to provide the policy maker with all sides of a legal argument – especially if the legal rules at issue, such as the UN Charter, were built on the opposite policy premise than that subscribed to by the lawyers and the politicians in question.