Authority of the President Under Domestic and International Law to Use Military Force Against Iraq, 02-15

• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Citation: 26 Op. O.L.C. 143
• Docket Number: 02-15
• Parties: Authority of the President Under Domestic and International Law to Use Military Force Against Iraq
• Decision Date: 23 October 2002

26 Op. O.L.C. 143

Authority of the President Under Domestic and International Law to Use Military Force Against Iraq

No. 02-15

United States Department of Justice

October 23, 2002

JAY S. BYBEE Assistant Attorney General Office of Legal Counsel

Authority of the President Under Domestic and International Law to Use Military Force Against Iraq

The President possesses constitutional authority to use military force against Iraq to protect United States national interests. This independent constitutional authority is supplemented by congressional authorization in the form of the Authorization for Use of Military Force Against Iraq Resolution.

Using force against Iraq would be consistent with international law because it would be authorized by the United Nations Security Council or would be justified as anticipatory self-defense.

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT ^[*]

I. Background......................................................................................................145

II. Domestic Legal Authority for Use of Force Against Iraq...............................150

A. Constitutional Authority..........................................................................150

B. Statutory Authority..................................................................................153

1. Public Law 102-1..............................................................................153

2. Public Law 105-235..........................................................................158

3. Public Law 107-40............................................................................159

C. The War Powers Resolution....................................................................159

III. Authority Under International Law to Use Force Against Iraq.....................162

A. U.N. Security Council Authorization......................................................162

1. The Cease-Fire, Material Breach, and Treaty Law............................163

2. Remedies...........................................................................................167

3. State Practice on Suspension in Response to Material Breach..........169

4. Armistice Law...................................................................................173

5. UNSCR688.......................................................................................176

B. Anticipatory Self-Defense.......................................................................177

1. The Caroline Test..............................................................................180

2. Necessity...........................................................................................182

3. State Practice.....................................................................................184

a. Cuban Missile Crisis..................................................................184

b. Osirak Reactor Strike.................................................................186

c. 1986 Strike Against Libya..........................................................187

d. 1989 Intervention in Panama......................................................189

e. 1993 Strike Against Iraq.............................................................190

f 1998 Attack on Afghanistan and Sudan......................................191

4. The Current Test................................................................................194 [ 144]

5. Iraq....................................................................................................195

IV. Conclusion.....................................................................................................197

You have asked our Office whether the President has the authority, under both domestic and international law, to use military force against Iraq. This memorandum confirms our prior advice to you regarding the scope of the President's authority.^[1] We conclude that the President possesses constitutional authority to order the use of force against Iraq to protect our national interests. This independent authority is supplemented by congressional authorization in the form of the Authorization for Use of Military Force Against Iraq Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991), which supports the use of force to secure Iraq's compliance with its international obligations following the liberation of Kuwait, and the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001), which supports military action against Iraq if the President determines Iraq provided assistance to the perpetrators of the terrorist attacks of September 11, 2001. In addition, using force against Iraq would be consistent with international law, because it would be authorized by the United Nations ("U.N.") Security Council, or would be justified as anticipatory self-defense.

This memorandum is divided into three sections. First, we explain the background to the current conflict with Iraq, touching upon the U.N. Security Council resolutions related to the Persian Gulf War and its aftermath, and highlighting the situations in which the United States has used force against Iraq between 1991 and the present. Second, we discuss the President's authority under domestic law to direct military action against Iraq, examining both his constitutional authority and supplementary congressional support. Finally, we detail the justification under international law for the United States to use force against Iraq, considering the circumstances in which the U.N. Security Council has authorized such action and the scenarios in which it would be appropriate to use force in anticipatory self-defense. [ 145]

I. Background

Prior to examining the President's legal authority to use force in Iraq, it is useful to explain some of the background to the current conflict. On August 2, 1990, Iraq invaded Kuwait. The next day, the U.N. Security Council ("Security Council") passed U.N. Security Council Resolution ("UNSCR") 660, the first of many resolutions condemning Iraq's actions and demanding withdrawal from Kuwait. See S.C. Res. 660, U.N. Doc. S/RES/660 (Aug. 2, 1990). For months, the world community sought a diplomatic solution, including sanctions, to persuade Iraq to leave Kuwait. See Address to the Nation Announcing Allied Military Action in the Persian Gulf, 1 Pub. Papers of Pres. George Bush 42, 43 (Jan. 16, 1991).

On November 29, 1990, the Security Council adopted UNSCR 678, which gave Iraq until January 15, 1991 to implement UNSCR 660 fully. See S.C. Res. 678, U.N. Doc. S/RES/678 (Nov. 29, 1990). In the absence of compliance by Iraq, paragraph 2 of UNSCR 678 authorized member states "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." Id. Iraq refused to withdraw from Kuwait before the January 15th deadline, and Operation Desert Storm began the next day. Allied air forces commenced an attack on military targets in Iraq and Kuwait. Ground forces were introduced on February 23, 1991, and Iraq was expelled from Kuwait four days later. Exactly 100 hours after ground operations began, President George H.W. Bush suspended offensive combat operations. See Address to the Nation on the Suspension of Allied Offensive Combat Operations in the Persian Gulf, 1 Pub. Papers of Pres. George Bush 187 (Feb. 27, 1991).

On April 3, 1991, the U.N. Security Council adopted UNSCR 687, which established the conditions for a formal cease-fire suspending hostilities in the Persian Gulf. UNSCR 687 "reaffirm[ed] the need to be assured of Iraq's peaceful intentions" given Iraq's invasion and occupation of Kuwait, its prior use of chemical weapons and ballistic missiles in unprovoked attacks, and reports that it had attempted to acquire materials to build nuclear weapons. S.C. Res. 687, pmbl. ¶4, U.N. Doc. S/RES/687 (Apr. 3, 1991). To that end, section C of UNSCR 687 imposed a variety of conditions on Iraq. First, the Security Council "decide[d]" that Iraq must:

unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of

(a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities . . .; [and] [ 146] (b) All ballistic missiles with a range greater than [150] kilometres, and related major parts and repair and production facilities

Id. ¶ 8. Second, Iraq must agree to "urgent, on-site inspection" to ensure its compliance with this requirement. Id. ¶ 9(a). Third, Iraq must "unconditionally undertake not to use, develop, construct or acquire" such weapons of mass destruction ("WMD") and their delivery systems. Id. ¶ 10. Finally, Iraq must "unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapon[s]-usable material or any subsystems or components or any [related] research, development, support or manufacturing facilities, " and to accept "urgent on-site inspection and the destruction, removal or rendering harmless as appropriate" of all such nuclear-related weapons or materials. Id. ¶ 12. To carry out on-site inspections of Iraq's WMD programs, the Resolution called for the establishment of a Special Commission ("UNSCOM") to act in cooperation with the International Atomic Energy Agency ("IAEA"), which was to take custody of all of Iraq's nuclear-weapons-usable materials. Id. ¶¶ 9, 13.^[2] In addition, UNSCR 687 required Iraq, inter alia, to renounce international terrorism. Id. ¶ 32. On April 6, 1991, Iraq officially accepted the terms set forth in UNSCR 687, and a formal cease-fire went into effect between Iraq, Kuwait and the U.N. members who had cooperated with Kuwait under UNSCR 678, including the United States. Id. ¶ 33.

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