07 April 2008

When does Iraq end?

This, it would seem, is a simple question with a simple answer: whenever the President declares victory. Very simple in concept, that the CinC and Head of State and Head of Government declare victory, and is in the powers of sovereignty generally held by the Office. The Legislative branch, however, in the Republic of the United States, also holds power and that is the originating authority to go to war. With that power comes the setting of the goals for the Nation to meet in the authorized conflict. Here I will take a moment to address that a 'Congressionally Authorized Use of Force' is the same thing as a 'Declaration of War' as it sends the forces of the Union against a foreign State under the auspices of the Legislative command power to engage the Nation in war. It may have a more modern, and longer, title, but the end result is Congress using one of its few direct Foreign Policy powers to initiate combat against a foreign State. The Congressional war powers come in these lines from Article I, Section 8:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

These two sub-sections define the Congressional war powers in Private War, under the first sentence, and Public War, under the second sentence. These are two different areas of war and are given separate sentences to differentiate between these powers, although Congress may incorporate *both* into making war policy.

Now, as Law of Nations is cited in capitalized form, it gives the broader categories of these powers an incumbent responsibilities to those who have them. Republics, however, may even divide *those* up and the Republican form of governance is recognized as Sovereign, so long as all are made aware of its divisions of power. And for all things directly related to War in Law of Nations (although many other interactions with this phenomena are given elsewhere) one needs go to Book III.

The very first paragraph of Book III is as follows:

§ 1. Definition of war.(136)

WAR is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force: but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it.

The next paragraph defines Public war as that between nations or sovereigns and is in accord with the public and open use of national capability. Private war is that done by individuals and is part of the more base Law of Nature of which all are at perfect liberty and no liability of exercising those liberties via codified law. After that the right of making war is given only to the sovereign, but the right to defend oneself is universal and paramount. And as only sovereigns may declare war for a nation, and as Republics act as sovereign government, those powers may duly be divided for that government.

One of the primary misunderstandings about the conflict that started up in 2002-03 was that it was not a new conflict. The cease-fire for the previous conflict of Desert Storm/Shield went into stasis to allow for the signatory sides to carry out their cease-fire agreements and work on a final peace solution. Skipping over much of the text, although pertinent parts play a role in Iraq, we skip to Ch. XVI:

§ 233. Truce and suspension of arms.

WAR would become too cruel and destructive, were all intercourse between enemies absolutely broken off. According to the observation of Grotius,1 there still subsists a friendly intercourse in war, as Virgil2 and Tacitus3 have expressed it. The occurrences and events of war lay enemies under the necessity of entering into various conventions. As we have already treated in general of the observance of faith between enemies, it is unnecessary for us in this place to prove the obligation of faithfully acting up to those conventions made in war: it therefore only remains to explain the nature of them. Sometimes it is agreed to suspend hostilities for a certain time; and, if this convention be made but for a very short period, or only regards some particular place, it is called a cessation or suspension of arms. Such are those conventions made for the purpose of burying the dead after an assault or a battle, and for a parley, or a conference between the generals of the hostile armies. If the agreement be for a more considerable length of time, and especially if general, it is more particularly distinguished by the appellation of a truce. Many people use both expressions indiscriminately.

§ 234. Does not terminate the war.

The truce of suspension of arms does not terminate the war; it only suspends its operations.

§ 235. A truce is either partial or general.

A truce is either partial or general. By the former, hostilities are suspended only in certain places, as between a town and the army besieging it. By the latter, they are to cease generally, and in all places, between the belligerent powers. Partial truces may also admit of a distinction with respect to acts of hostility, or to persons; that is to say, the parties may agree to abstain from certain acts of hostility during a limited time, or two armies may mutually conclude a truce or suspension of arms without regard to any particular place.

Thus comes the hard fact of the cease-fire that Saddam had voluntarily signed on to. He was to repatriate Kuwaitis he had abducted, restore POWs, allow searches for the remains of POWs, and, yes, create a system to openly dismantle his WMD production capability for ALL TO SEE. A more general truce was not given and the war was suspended for Saddam to demonstrate that he could act in good faith to uphold his word on a mere cease-fire. This was not a truce nor a treaty made during war which has even higher prerequisites, but they would be built on the demonstration of openness and good faith in the cease-fire. The cease-fire and adhering to its terms were to be the fundamental building block to a truce and then, with luck, a treaty to ensure that Saddam would not, again, re-build his WMD industries and seek to threaten his neighbors.

Saddam did not do even that, however, he tried to undermine the cease-fire, fired on coalition personnel and then played games to ensure that no one would know for sure if his WMD creation capability had been dismantled. It was not just his weapons that had to go, but his accountability on creating them and demonstrating that he would not keep those systems going. He obligated himself to this accountability by the contract made with his enemies. Nor would he account for all of those he had kidnapped, nor aid in the searches for missing soldiers. He would do as many things to show that he was making 'an effort' but those efforts were not full, nor complete, nor open, nor honest and he did not want to be held accountable for what he was holding back.

What Saddam wanted to do was wear down his opponents to do what is described in the next paragraph:

§ 236. General truce for many years.

A general truce, made for many years, differs from a peace in little else than in leaving the question which was the original ground of the war still undecided. When two nations are weary of hostilities, and yet cannot agree on the point which constitutes the subject of their dispute, they generally have recourse to this kind of agreement. Thus, instead of peace, long truces only have usually been made between the Christians and the Turks, — sometimes from a false spirit of religion; at other times, because neither party were willing to acknowledge the other as lawful owners of their respective possessions.

It is a very strange thing in this world when many people wanted to give up to a *cease-fire* and capitulate during a conflict that lasted 100 hours. Yes, such great war weariness must have happened during that time, no? Unfortunately Saddam continued to snipe, fire missiles, and have other actions taken to ensure that the actual conflict was not seen as ended, and yet, in the great and grand coalition that everyone crows about was put to the simple test of saying 'enough is enough', not a single ONE OF THEM DID A DAMNED THING. The UN may have asked for Nations to restore Kuwait, but it is those nations that put it on the line to do so that created the coalition, ran the war, passed their articles of conflict and declared that such belligerency would be put to an end that took up that cause. If you want the UN to be considered in the original Gulf War, then make sure that you can find all the bureaucrats with briefcases in the front lines in the news footage... the UN could do *nothing* beyond create common agreement for that conflict. And when the UN asked for nations to help in doing that, it put ITSELF at the mercy of the Law of Nations and must abide by that as a mere treaty organization.

Thus liberating Kuwait, the theoretical 'hard part' led to the cease-fire, which should have been 'the easy part' as Saddam would realize the error of his ways. No? Didn't happen that way, and when years dragged on and Saddam was still not holding accountable to his word given to SAVE HIS PEOPLE, Congress took up its part and decided to look at another part of Law of Nations, just to make sure that all the bases were covered. They issued the *second* authorization and it would fall under this section in Ch.III :

§ 41. War undertaken to punish a nation.

When offensive war has for its object the punishment of a nation, it ought, like every other war, to be founded on right and necessity. 1. On right: — an injury must have been actually received. Injury alone being a just cause of war (§ 26), the reparation of it may be lawfully prosecuted: or if, in its nature, it be irreparable (the only case in which we are allowed to punish), we are authorized to provide for our own safety, and even for that of all other nations, by inflicting on the offender a punishment capable of correcting him, and serving as an example to others. 2. A war of this kind must have necessity to justify it; that is to say, that, to be lawful, it must be the only remaining mode to obtain a just satisfaction; which implies a reasonable security for the time to come. If that complete satisfaction, be offered, or if it may be obtained without a war, the injury is done away, and the right to security no longer authorizes us to seek vengeance for it. — (See Book II. §§ 49, 52.)

The nation in fault is bound to submit to a punishment which she has deserved, and to suffer it by way atonement: but she is not obliged to give herself up to the discretion of an incensed enemy. Therefore, when attacked she ought to make a tender of satisfaction, and ask what penalty is required; and if no explicit answer be given, or the adversary attempts to impose a disproportionate penalty, she then acquires a right to resist, and her defence becomes lawful.

On the whole, however, it is evident that the offended party alone has a right to punish independent persons. We shall not here repeat what we have said elsewhere (Book II. § 7) of the dangerous mistake, or extravagant pretensions, of those who assume a right of punishing an independent nation for faults which do not concern them — who, madly setting themselves up as defenders of the cause of God, take upon them to punish the moral depravity, or irreligion, of a people not committed to their superintendency.

Thus, when Congress authorized its use of force a *second time*, it was doing so because Saddam had not kept to his cease-fire. The United States had a grievance against Saddam and, thusly, was the aggrieved party. The interval between the authorization and actual re-start of hostilities gave Saddam more than enough time to see that this was no joke, that he did have to come clean, that he did have to be accountable and that his word, to be worth anything to anyone *ever* he would have to abide by it.

Instead he played diplomatic games.

The US and other Nations had gone to the UN for over a decade seeking to get Saddam to comply.

Small operations were conducted in response to his firing on coalition forces, and that got only more bluster.

Kuwaitis beseeched Saddam to let go those who were picked up by his secret police while in Kuwait, and he did *nothing*.

Thus the Joint Resolution of Congress to authorize the use of force is as follows and I will give some context between pieces:

Whereas in 1990 in response to Iraq's war of aggression against and
illegal occupation of Kuwait, the United States forged a coalition
of nations to liberate Kuwait and its people in order to defend the
national security of the United States and enforce United Nations
Security Council resolutions relating to Iraq;

[P1 - Note that this paragraph re-iterates the nature of the first conflict, and the unjust actions of Saddam. This was done in accord with international agreement brokered at the UN. As Saddam had agreed to this body to oversee inspections of his facilities, when it was thwarted in getting full accountability it called for action to force Saddam to comply to his word. From that the groundwork of the rest of the authorization follows.]

Whereas after the liberation of Kuwait in 1991, Iraq entered into a
United Nations sponsored cease-fire agreement pursuant to which Iraq
unequivocally agreed, among other things, to eliminate its nuclear,
biological, and chemical weapons programs and the means to deliver
and develop them, and to end its support for international

[P2 - This paragraphs stipulates that Saddam had signed a cease-fire. As was seen in Law of Nations, the sovereign is required to adhere to that cease-fire agreement and all of its terms. One things that those decrying Iraq forget is that Congress and the cease-fire stipulated the entire weapons programs: not just munitions, but everything from facilities to make pre-cursor material to casting to production to storage, plus all knowledge used in those things for those purposes. That includes all production systems and their attendant tool and die equipment. There are specific provisions for 'dual-use' equipment and its oversight for purely civilian manufacturing, and Saddam violated that, too. Saddam was not forced to agree or sign these things, he did so willingly at the time.]

Whereas the efforts of international weapons inspectors, United States
intelligence agencies, and Iraqi defectors led to the discovery that
Iraq had large stockpiles of chemical weapons and a large scale
biological weapons program, and that Iraq had an advanced nuclear
weapons development program that was much closer to producing a
nuclear weapon than intelligence reporting had previously indicated;

[P3 - Here Congress cites the programs that were found as cited by the Kay report, and by initial INTEL. Additionally the use of chemical weapons against the Kurds indicates a large scale chemical weapons program. The ongoing programs also include phosphorus processing facilities for triple use in chemical, biological and nuclear weapons.]

Whereas Iraq, in direct and flagrant violation of the cease-fire,
attempted to thwart the efforts of weapons inspectors to identify
and destroy Iraq's weapons of mass destruction stockpiles and
development capabilities, which finally resulted in the withdrawal
of inspectors from Iraq on October 31, 1998;

[P4 - This is a direct citation by Congress to the cease-fire violations by Saddam. When invoking this Congress is utilizing its power "and Offences against the Law of Nations" to cite such offences and then prescribe activity to remedy them. That power is beyond just Private War, and yet is limited by the scope of the other Congressional powers. In this instance the ability to formulate the laws of the Armed Forces, uphold and supply them, and identify those taking action against them puts that power into play in those areas. As the wartime cease-fire requires good faith and upholding by Saddam, his lack of same is a clear threat not only to the US, but to all Nations dealing with him.]

Whereas in Public Law 105-235 (August 14, 1998), Congress concluded that
Iraq's continuing weapons of mass destruction programs threatened
vital United States interests and international peace and security,
declared Iraq to be in ``material and unacceptable breach of its
international obligations'' and urged the President ``to take
appropriate action, in accordance with the Constitution and relevant
laws of the United States, to bring Iraq into compliance with its
international obligations'';

[P5 - Congressional citation of previously passed law in this area. Congress has urged action, previously, to force Saddam to either abide by his cease-fire. He had not done so. Further, the President was obligated to use activities under that law, including withdrawing from the cease-fire as that is a power of the President, to force the issue.]

Whereas Iraq both poses a continuing threat to the national security of
the United States and international peace and security in the
Persian Gulf region and remains in material and unacceptable breach
of its international obligations by, among other things, continuing
to possess and develop a significant chemical and biological weapons
capability, actively seeking a nuclear weapons capability, and
supporting and harboring terrorist organizations;

[P6 - Congress now cites the omnibus form of threat that Saddam poses not only to the US, but to all Nations. In seeking to promulgate Private War groups inside and outside of Iraq, along with his WMD infrastructure, Congress can no longer abide by the threat he poses. This, again, uses the Private War area and the Public War under the Law of Nations (Book III, para 34), which is a rare citation. Less rare is that of the gathering threat (para 44), and the previously cited punishment (para 41). What has become more prevalent is the citation for international stability under Law of Nations (paras 47-50) which is the Leftist view of warpower. Note that terrorism is not stated to be of any single sub-type and that all support and harboring of terrorists is a resultant cause.]

Whereas Iraq persists in violating resolution of the United Nations
Security Council by continuing to engage in brutal repression of its
civilian population thereby threatening international peace
and security in the region, by refusing to release, repatriate, or
account for non-Iraqi citizens wrongfully detained by Iraq,
including an American serviceman, and by failing to return property
wrongfully seized by Iraq from Kuwait;

[P7 - This is a more clear and fundamental statement of Law of Nations (paras 47-50) for stability by Saddam adhering to the cease-fire accords. He is also cited as breaking with the Geneva Conventions by his refusal to all non-Iraqi citizens to go free and to safety. He additionally violates the proper accounting for captured soldiers and notifying their home country of their disposition (even if it is remains that are found). Property unlawfully seized by Iraq in Kuwait (notoriously premature infant sustainment equipment and killing infants using them in Kuwait) are violations under the GC and the larger Law of Nations Book III, Ch. IV, VIII, IX and X. By committing crimes against civilians, women and children, and taking private property by no legal proceeding, Saddam Hussein has broken with all norms of Nations in warfare.]

Whereas the current Iraqi regime has demonstrated its capability and
willingness to use weapons of mass destruction against other nations
and its own people;

[P8 - Iraq, having such outlook has also demonstrated that it will do the exact, same, thing to its own people. This is the strongest citation of a 'rogue nation' with a sovereign that will aggrandize everything to himself and inflict harm against his own people. Government is established as seen in Book I, Ch. IV, para 39, solely for the safety and advantage of society. In that doing as seen in Book I, para 54, he has become an enemy to his own people. Even more deeply, Book II, Ch. I, para 4 sees a duty of nations to preserve other nations, especially when threatened by a powerful enemy that attacks or oppresses it. This is not a direct humanitarian appeal, but one of Justice between nations, and in citing the abrogations of Saddam against his own people, resulting in his becoming their enemy, Congress lays the foundation for removal of that enemy for that nation. With the prior examination that all good offices of all of humanity have been disrespected by Saddam (multiple signatories to treaties of the GC and UN; specific bodies set up by those treaties to address Saddam's misdeeds; and even the re-direction of aid to his own aggrandizement) Congress puts forward that this is not only an enemy of the US and the international order, but to all of mankind. All civilized manner of non-interference to gain compliance to Saddam's wartime agreement have been rebuked, thwarted, corrupted or failed outright. Congress, by its Private War power has just declared this Public enemy, deserving of sovereign rights, to be outlaw and international criminal under Law of Nations.]

Whereas the current Iraqi regime has demonstrated its continuing
hostility toward, and willingness to attack, the United States,
including by attempting in 1993 to assassinate former President Bush
and by firing on many thousands of occasions on United States and
Coalition Armed Forces engaged in enforcing the resolutions of the
United Nations Security Council;

[P9 - This is the supporting paragraph to P8. It is the citation of those things that are making Saddam Hussein outlaw. Every bullet fired is a violation of the cease-fire, and yet the US has held itself in abeyance. By doing so he has put at risk all standard and recognized obligations of a sovereign during war and simultaneously threatens the international order. His perfidy stoops so low as to try and assassinate a former President who is no longer in power, and is a common citizen due to all rights and protections due to all citizens lawfully engaged in the normal course of their lives.]

Whereas members of al Qaida, an organization bearing responsibility for
attacks on the United States, its citizens, and interests, including
the attacks that occurred on September 11, 2001, are known to be in

[P10 - Saddam has made common cause with those waging Private War against the US. Al Qaeda in the form of Ansar al-Islam/Sunnah, had been invited in by Saddam in the 1990's and had been waging Private War on his behalf against his own people in the Kurdish region of Iraq. Al Qaeda had attacked the US prior to 9/11 and those attacks along with 9/11 make it an international outlaw. As with the more common case of Piracy, those who help, aid, abet and actively support those engaging in Private War are seen as helping those acts they support by those actions.]

Whereas Iraq continues to aid and harbor other international terrorist
organizations, including organizations that threaten the lives and
safety of United States citizens;

[P11 - Nor is al Qaeda the only organization that has gotten such support. Abu Nidal had sought and gotten direct aid from Iraq. Likewise Nadhmi Auchi had orchestrated finances between Iraq, al Qaeda and HAMAS. Further Saddam supported the Mujahedin-e-Kalq, which was headquartered in Iraq. Saddam has also supported al-Turabi in Sudan, which was a supporter of al Qaeda and who was with the Muslim Brotherhood. More famously he had provided checks to the families of suicide bombers who had attacked Israel, including many PLO and associated organizations.]

Whereas the attacks on the United States of September 11, 2001,
underscored the gravity of the threat posed by the acquisition of
weapons of mass destruction by international terrorist

[P12 - Congress is citing the threat of those making Private War on the US and that these organizations can no longer be considered to be minor nor inconsequential. State support in the area of WMDs for these organizations is particularly troublesome as the cost to creation, once the technology is known and understood, yields relatively low cost weapons with a high fatality rate across large areas. Indeed, at the beginning of operations, the Ansar organizations announced it was using equipment provided by Saddam to create chemical weapons. The ricin investigation in London post-invasion also shows the knowledge of basic chemical weapons spreading into terrorist organizations. The most worrying of organizations was the Aum Shinrikyo cult in Japan, unassociated with any state support, independently creating the capability for Vx, Sarin, and the weaponization of anthrax. Similarly the numerous citations of nuclear material flowing through Russian criminal channels makes nucleotide dispersal technology via conventional explosives a troubling threat.]

Whereas Iraq's demonstrated capability and willingness to use weapons of
mass destruction, the risk that the current Iraqi regime will either
employ those weapons to launch a surprise attack against the United
States or its Armed Forces or provide them to international
terrorists who would do so, and the extreme magnitude of harm that
would result to the United States and its citizens from such an
attack, combine to justify action by the United States to defend

[P13 - The threat of Saddam smuggling WMD components and capability out of Iraq was not something that could be ignored. Not only was his Mukhabarat capable of such, but assassinations by Mukhabarat agents and sophisticated weapons components in their hands had already made that threat clear. Leading up to the war, individuals held by the Kurds for smuggling had demonstrated knowledge of Saddam supplying similar capability to the Taliban and al Qaeda. This threat could not and cannot be ignored, given state sponsorship and technical support by North Korea, Iran and Syria to terrorist organizations, and Saddam's was one of the worse of the supporters in this arena seeking influence for himself beyond ethnic affiliation, religion or ideology.]

Whereas United Nations Security Council Resolution 678 (1990) authorizes
the use of all necessary means to enforce United Nations Security
Council Resolution 660 (1990) and subsequent relevant resolutions
and to compel Iraq to cease certain activities that threaten
international peace and security, including the development of
weapons of mass destruction and refusal or obstruction of United
Nations weapons inspections in violation of United Nations Security
Council Resolution 687 (1991), repression of its civilian population
in violation of United Nations Security Council Resolution 688
(1991), and threatening its neighbors or United Nations operations
in Iraq in violation of United Nations Security Council Resolution
949 (1994);

[P14 - This is the 'laundry list' of support for Saddam's perfidy. All the cease fire definitions and supporting international accords are cited.]

Whereas in the Authorization for Use of Military Force Against Iraq
Resolution (Public Law 102-1), Congress has authorized the President
``to use United States Armed Forces pursuant to United Nations
Security Council Resolution 678 (1990) in order to achieve
implementation of Security Council Resolution 660, 661, 662, 664,
665, 666, 667, 669, 670, 674, and 677'';

[P15 - Congress cites what is to be done: use military force against Iraq in pursuit of all breaches of the cease-fire. When a nation announces they are going to remove a cease-fire, this is more textbook than one can imagine: Saddam gets clear and ample forewarning that Congress is setting aside that agreement if he will not come into accord with his given word. That is what using force to get compliance means: the cease-fire is ending. Saddam is given one last chance to demonstrate that he has any rational mental capabilities and duty to his nation left to his soul. He squandered that opportunity. So that any who cannot comprehend get it plainly: you cannot heal a cease-fire with force as that ends a cease-fire.]

Whereas in December 1991, Congress expressed its sense that it
``supports the use of all necessary means to achieve the goals of
United Nations Security Council Resolution 687 as being consistent
with the Authorization of Use of Military Force Against
Iraq Resolution (Public Law 102-1),'' that Iraq's repression of its
civilian population violates United Nations Security Council
Resolution 688 and ``constitutes a continuing threat to the peace,
security, and stability of the Persian Gulf region,'' and that
Congress, ``supports the use of all necessary means to achieve the
goals of United Nations Security Council Resolution 688'';

[P16 - Congress cites its previous support in doing this. That previous resolution had bi-partisan support and was signed into law by a Democratic Administration under President Clinton. Congress supports its sovereignty powers to keep international order and to see to the safety of the United States and when that safety and that order are threatened, Congress is to act. Again, Saddam is given a last chance by adhering to his agreements and international accords made to give him a chance to keep to his word.]

Whereas the Iraq Liberation Act of 1998 (Public Law 105-338) expressed
the sense of Congress that it should be the policy of the United
States to support efforts to remove from power the current Iraqi
regime and promote the emergence of a democratic government to
replace that regime;

[P17 - Congress had previously cited the threats of the regime. Congress has allowed that any other way to remove the threats of the regime of Saddam Hussein should be tried first. They had been tried both before PL105-338 and subsequent to it to no avail. Congress calls for the creation of a democratic government in Iraq to replace the regime and safeguard Iraqis and bring stability to the region.]

Whereas on September 12, 2002, President Bush committed the United
States to ``work with the United Nations Security Council to meet
our common challenge'' posed by Iraq and to ``work for the necessary
resolutions,'' while also making clear that ``the Security Council
resolutions will be enforced, and the just demands of peace and
security will be met, or action will be unavoidable'';

[P18 - Congress agrees that other means should be exhausted in pursuit of bringing Saddam to see reason and adhere to his word. Force will be used if he does not as he will demonstrate one last time, that he will not abide to wartime agreements.]

Whereas the United States is determined to prosecute the war on
terrorism and Iraq's ongoing support for international terrorist
groups combined with its development of weapons of mass destruction
in direct violation of its obligations under the 1991 cease-fire and
other United Nations Security Council resolutions make clear that it
is in the national security interests of the United States and in
furtherance of the war on terrorism that all relevant United Nations
Security Council resolutions be enforced, including through the use
of force if necessary;

[P19 - Congress cites that removing support for international terrorist groups from Iraq is now a legitimate concern of the US and force can be used to do that. Congress is adding this in to the bill of particulars against Saddam Hussein and is above and beyond the cease-fire problem.]

Whereas Congress has taken steps to pursue vigorously the war on
terrorism through the provision of authorities and funding requested
by the President to take the necessary actions against international
terrorists and terrorist organizations, including those nations,
organizations, or persons who planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001, or
harbored such persons or organizations;

[P20 - Congress cites its funding power for the armed forces to go after terrorist organizations. There is missing from this paragraph any mention of Iraq or Saddam Hussein. It is a direct citation against al Qaeda and those who helped it in regards to 9/11 or those that harbor such organizations. This singular paragraph, by not delimiting itself to Iraq or the problems of Iraq and not citing them in any way, is a much larger scope than many want to admit. I will address this later.]

Whereas the President and Congress are determined to continue to take
all appropriate actions against international terrorists and
terrorist organizations, including those nations, organizations, or
persons who planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such
persons or organizations;

[P21 - This, too, is like the preceding a wider scope paragraph. Note lack of Iraq citation.]

Whereas the President has authority under the Constitution to take
action in order to deter and prevent acts of international terrorism
against the United States, as Congress recognized in the joint
resolution on Authorization for Use of Military Force (Public Law
107-40); and

[P22 - Again, like the preceding, this is not dealing solely with Iraq.]

Whereas it is in the national security interests of the United States to
restore international peace and security to the Persian Gulf region:
Now, therefore, be it

Resolved by the Senate and House of Representatives of the United
States of America in Congress <<NOTE: Authorization for Use of Military
Force Against Iraq Resolution of 2002. 50 USC 1541 note.>> assembled,


This joint resolution may be cited as the ``Authorization for Use of
Military Force Against Iraq Resolution of 2002''.


The Congress of the United States supports the efforts by the
President to--
(1) strictly enforce through the United Nations Security
Council all relevant Security Council resolutions regarding Iraq
and encourages him in those efforts; and
(2) obtain prompt and decisive action by the Security
Council 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.

[S2 - Congress supports these efforts on the diplomatic front, to get Iraq to comply. Congress does have a memory of all past efforts, so this is the 'last chance' notice, not a 'status quo' notice. Congress doesn't much bother with the status quo in foreign affairs, but in a Use of Force document, this is a finality to such efforts.]


(a) Authorization.--The President is authorized to use the Armed
Forces of the United States as he determines to be necessary and
appropriate in order to--
(1) defend the national security of the United States
against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council
resolutions regarding Iraq.

[S3a - Congress calls on the President to uphold his Oath and sovereignty powers. Also to give all agreements a fair chance of enforcement.]

    (b) Presidential Determination.--In connection with the exercise of
the authority granted in subsection (a) to use force the President
shall, prior to such exercise or as soon thereafter as may be feasible,
but no later than 48 hours after exercising such authority, make
available to the Speaker of the House of Representatives and the
President pro tempore of the Senate his determination that--
(1) reliance by the United States on further diplomatic or
other peaceful means alone either (A) will not adequately
protect the national security of the United States against the
continuing threat posed by Iraq or (B) is not likely to lead to
enforcement of all relevant United Nations Security Council
resolutions regarding Iraq; and
(2) acting pursuant to this joint resolution is consistent
with the United States and other countries continuing to take
the necessary actions against international terrorist and
terrorist organizations, including those nations, organizations,
or persons who planned, authorized, committed or aided the
terrorist attacks that occurred on September 11, 2001.

[S3b - The President is given to make a determination on the feasibility of the use of force and the utility of continued diplomacy in this matter. Further Congress extends this to go beyond Iraq and to those that aided and abetted the 9/11 attacks in the ways listed.]

    (c) War Powers Resolution Requirements.--
(1) Specific statutory authorization.--Consistent with
section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific
statutory authorization within the meaning of section 5(b) of
the War Powers Resolution.
(2) Applicability of other requirements.--Nothing in this
joint resolution supersedes any requirement of the War Powers

[S3c - This is a statutory authorization under the War Powers Resolution.]


(a) <<NOTE: President.>> Reports.--The President shall, at least
once every 60 days, submit to the Congress a report on matters relevant
to this joint resolution, including actions taken pursuant to the
exercise of authority granted in section 3 and the status of planning
for efforts that are expected to be required after such actions are
completed, including those actions described in section 7 of the Iraq
Liberation Act of 1998 (Public Law 105-338).

(b) Single Consolidated Report.--To the extent that the submission
of any report described in subsection (a) coincides with the submission
of any other report on matters relevant to this joint resolution
otherwise required to be submitted to Congress pursuant to the reporting
requirements of the War Powers Resolution (Public Law 93-148), all such
reports may be submitted as a single consolidated report to the
(c) Rule of Construction.--To the extent that the information
required by section 3 of the Authorization for Use of Military Force
Against Iraq Resolution (Public Law 102-1) is included in the report
required by this section, such report shall be considered as meeting the
requirements of section 3 of such resolution.

Approved October 16, 2002.

That is the CAUF (with some bureaucratic things removed at the header) and it is a wide-ranging document. While addressing Iraq in the main body of P1-19, at P20 the document takes a sudden change from Iraq and addresses a wider sphere in which Iraq is an instance: the wider effort to fight terrorism. I will set that aside for the moment to get after the Iraq portion of the document, which is quite clear in its goals.

First, Saddam is to comply with his cease-fire and all subsequent attempts to thwart it are to be recognized and all such attempts to thwart it ended. Congress painstakingly goes through the list of reports, problems and other calls by those organizations agreed-to in assuring the world that Saddam had, indeed, complied with his word. Those are all to be ended and Iraq to 'come clean'.

Second, in not expecting the first to work, force is to be used and the cease-fire ended. Congress did not give a blank check to continued diplomacy, and that long list of things done over a decade demonstrates that diplomacy has its limits lacking force. This is one of the few times that the generally spineless institution known as Congress has shown more backbone than EVERY OTHER LEADER in the coalition. You remember that listing of nations going beyond the obvious and heading down into small contingents from South Korea, Norway and Hungary from 1991? Not a single leader of a single nation in that contingent would call for the cease-fire to be ended. The time to end diplomacy was 1992-3 when Saddam started his violations, not a decade later. International institutions and the lethargy they inspire has proven to be too slow to that most spineless and sluggish of institutions known as the US Congress. Fascinating that those that place such investment in Congress don't want to address this: it is doing better at addressing international problems that relate to the US better than the UN or President Clinton did. Heaven help the United States of America... because no one else will.

Third, is the ending of support for terrorism in Iraq. This becomes a subheading of the more global Congressional view of P20-21. At the end, it is not even the then current regime's support that is to be ended, but *all* support inside Iraq for international terrorism of *all* kinds. Particularly called out is al Qaeda, but a more general rule is applied that terrorism of any stripe is not to find a safe harbor in Iraq. This is something of a shock to the Kurds, no doubt, as the PKK is within that scope, too, and the Kurds are starting to realize that dreams of a greater Kurdistan supported in Iraq are not going to be given a 'wink and a nod' by anyone. Turkey has been more than willing to make that point and it is getting across. The Sadr and Badr organizations to the south are likewise in the 'my god they mean it!' boat, and the Badr organization has tried to infiltrate its way into Iraqi security institutions, but has found COINTEL by the US and, more recently, Iraq is making that difficult to do with national organs. Support for terrorism does not begin nor end with al Qaeda and Congress is very, very clear on that. It may be the worse, but it is only the most foul of a rotten barrel of fish.

Fourth, help the Iraqi people found a democracy of some sort there. Really, anything has got to be preferable to the 'strong man du jour' of the Middle East. Using a bit of historical experience, the US failed with the Articles of Confederation (although it got the colonies through the Revolution) and its run length to dissolving from 1776-1787 points out that it can take decades to get a reliable democratic system up and running. Actually that can be a rather open-ended commitment as democracy is not an end-state of being, but a process of governing, but getting something up that has open, free, and fair elections with devolution of power to lower levels (provincial/governate, municipal, town, local) is the goal of democracy. To that end the first round of provincial elections this fall will spell the end of the beginning of this process. The first set of parliamentary elections after that will see how Iraq fares shifting from its wartime government to one more regularly secured. Like the US in the early 1780's, the initial Articles proved to have serious drawbacks and Iraqis, once they get a relatively stable process in place, will need to address that. This was expected to be the hardest thing to achieve, but may actually outpace the removal of terrorism by a few years.

Fifth, and largely glossed over, is that Iraq *still* has to ensure that WMDs are not created nor that technology and material fall into the wrong hands. This will require that Iraq get on-board with some agreements, perhaps draft some treaties, and otherwise assure the international community that the import/export controls it will put in place ensure that no trafficking in these goods to illegal parties happens. In the longer run this will require the equivalent of an FBI with some industrial legislation to create civil laws on this. A foreign information service to ensure that Iraq is not infiltrated by terrorist or rogue regime supporters will be necessary, too. Even industrialized nations, like Japan, have problems in this area as witness the 10,000 or so nuclear separators sold on the black market by Mitutoyo in the 1990's. Also a large effort to find what Saddam actually *did* with the WMD equipment and stockpiles needs to be mounted. Just as MiG jets buried in the desert can easily go undiscovered, so, too, can barrels of toxic materials, pre-filled warheads and equipment. Some went to other nations, and reports of Syrian and Russian support for the movement of equipment has been brought to light, and the Netherlands has found illegal equipment headed to the scrap heap via its disposal contracts in the region. Still, much of the larger hardware pieces that are not easily transported or destroyed, must be *somewhere*.

What has plagued the US in Iraq and Afghanistan, however, are the lack of individuals to create and sign this thing known as a 'Peace Treaty'. Unlike regular nations, Saddam and the Taliban do not see mere removal from power as a 'loss'. By not acceding to a victor, like Germany, Italy and Japan did in WWII, the US lacks a definitive end-point to these conflicts. The older route, taken in the Philippines, is to get a relatively stable government up and running and then draw down over a few years with only minimal support via treaty to newly recognized government. That recognition and normalization usually ends the actual wartime participation, although it may involve the US in much longer term problems of insurgencies. If the Taliban or Ba'athist regimes had laid down their arms and ordered all under arms for their nations to do so, we would not have these problems. They did not take the honorable way out and surrender, thus they are left with the less honorable path: being ground down to nothingness and final defeat.

Exactly how close is the US to meeting the goals set by Congress?

Well the immediate WMD capability is gone, so that is a plus. As noted above the new Iraqi government will need to put restrictions and controls on their industrial capacity to ensure that such things don't happen again. Like all parliamentary systems, that is receiving a lower priority to actually ending the insurgency, standing up reliable forces, getting a democratic system in-place and securing the Nation. The final legislation I cannot imagine taking all that long to pass and joining with other Import/Export agreements to ensure that it doesn't happen again. Because it *is* now a low priority, a five year expectation is not out of bounds of reason. It *could* happen tomorrow, but it does require an actual understanding of Iraq's needs, as a Nation, and its ability to stand-up industrial capacity. The US could help immensely, there, but I expect the ability to recognize this as a need by anyone in the Executive Branch (current or from any of the contestants) will make this impossible to even conceive of.

The removal of support for terrorism in Iraq is now going apace, with al Qaeda/Ansar al-Sunnah/Islam on the run, the Mahdi Army now in disarray, and the PKK being targeted by Turkey and that is getting some help from Iraq and the US. These elements are 'in progress' at the moment and will remain so until Iran stops supplying the JaM/Qods "Secret Cells" and Hezbollah operatives entering into Iraq. Ditto with Syria, though it has had a lesser role to play, it must also stop that. The Kurds need some strong coffee and to start cutting off the PKK and *that* may be the most difficult of the things to do... yes Iran may actually start the end of its support for insurgents in Iraq before the Kurds stop their support of the PKK. Lovely world, no? This period of the 'second half-life of COIN' should take about as long as the first, so... given we really started doing COIN in late 2005, give that another 3-5 years with the possible long-term problem of divorcing and extinguishing the PKK lingering on until *it* becomes a sticking point.

Getting a democratic system in place that is stable is usually more than one election deep. This requires organic parties with popular support and diverse views coming together to get an electoral base. With the first round of provincial elections, I expect the post-war government basis to crumble. Luckily parliamentary elections come the following year and most of what is now the present government of Iraq I expect *not* to be around after that. The Kurds represent a cohesive viewpoint and are an exception to this and will retain 'organizational memory' between the two parliaments. Already the calls by Shias to amend the Constitution to better suit the Sunnis and cultural make-up of the Nation are being heard and that marks a hard realization that the current arrangement will engender bad blood if not changed. This is a *good* thing as it represents a higher order of thinking above tribe and religion. Plus the technocratically oriented 'Iraq Awakening' movement will be heard from in the provinces, first, and then the parliamentary system. Each of those systems should get a thorough shake-out with at least two election cycles each (provincial and parliamentary) plus local election cycles (which should be an interim election cycle or coincide with either of the other two). That is, depending on how well the parliament holds up, based on the length of time for provincial elections, but call it 4 years after this year leading to 8 years to get a full three provincial cycles done. Three is a magic number and if things hold up with stable parties, any need for worries should be largely gone by then.

If you want to get out of Iraq quickly and create something better, then we are at the one-third to one-half point, depending on how reliable the elections are... democracy is a process based system, so once the process is safely established it takes unusual intervention to change it. And the Kurds really do have to give up supporting the PKK. And Iran and Syria face some harsh realities about trying to upset a relatively large and sophisticated neighbor. I expect that after the next parliamentary elections the next US President will try to get some sort of deal for final withdrawal or stand-down or equivalent of US forces there and ensure an orderly turn-over of operations. Call it security operations until 2010, then withdrawal out to 2015/16.

The way *out* is *forward* and *through* the problems so we never, ever have to go back and deal with something similar AGAIN. Worked in Germany and Japan so far, and Iraq deserves just that sort of outreach. I never want to hear any calls for the US to go *back* to Iraq to get rid of some dictator, tyrant or terrorist sponsoring government/organization again AFTER the place is stabilized and trustworthy.

Now to the other part of the CAUF - the Global War on Terror part in P20-21. This is interesting as Congress has enacted previous language before for fighting a very similar problem. I looked at this concept in a lengthy piece tracing the history of Private War as it existed before the modern era and leading right up to the 1920's in: Piracy, terrorism and the wider view. The language that Congress created to address terrorism in the CAUF sounds very, very familiar. Let us take P20 and see what it says:

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Now for the US Civil Code 18USC Chapter 81:

Sec. 1657. Corruption of seamen and confederating with pirates

Whoever attempts to corrupt any commander, master, officer, or mariner to yield up or to run away with any vessel, or any goods, wares, or merchandise, or to turn pirate or to go over to or confederate with pirates, or in any wise to trade with any pirate, knowing him to be such; or

Whoever furnishes such pirate with any ammunition, stores, or provisions of any kind; or Whoever fits out any vessel knowingly and, with a design to trade with, supply, or correspond with any pirate or robber upon the seas; or

Whoever consults, combines, confederates, or corresponds with any pirate or robber upon the seas, knowing him to be guilty of any piracy or robbery; or

Whoever, being a seaman, confines the master of any vessel--

Shall be fined under this title or imprisoned not more than three years, or both.

Those are the Civil punishments for being brought in by civilian forces (police, citizenry, giving oneself up to authorities) and it has an astounding correlation to the CAUF in the broadness and extent of who is to be punished when aiding and abetting Pirates. To drop back to 18USC1653 we see that Piracy is, indeed, warfare:

Sec. 1653. Aliens as pirates

Whoever, being a citizen or subject of any foreign state, is found and taken on the sea making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same, contrary to the provisions of any treaty existing between the United States and the state of which the offender is a citizen or subject, when by such treaty such acts are declared to be piracy, is a pirate, and shall be imprisoned for life.

Piracy is a form of Private war and this legacy comes from Law of Nations in Book III, the relevant paragraphs follow:

§ 2. Public war.(136)

Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider: — private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.


§ 67. It is to be distinguished from informal and unlawful war.

Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.

In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.

When Congress created the military codes of law, as that is their power under the Constitution, they have previously given this view in that law to this species of warfare:

Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

That from:


Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.

That from the Avalon Project document cache of historical documents. Here we have a continuous thread of thought from Grotius through de Vattel through the Congress of Abraham Lincoln and Lincoln himself signing off on it through the updated Piracy codes all the way to the CAUF. This line of historical power for a nation rests far back in history and Congress is given the headache of defining the civil judgements and military code to keep the actions of those civilians who take up warfare ON THEIR OWN straightened out. And the Article 82 concept points out that Piracy is only one form of the broader category of depredation as seen by Congress in 1863. Note, also, the summary part of this: do the activity and the punishment during wartime is automatic.

With the CAUF the Congress is directing the President to use military means, indeed *all* means, to go after 'terrorists'. Terrorism is, however, a thing known as a *tactic* utilized by Pirates, Brigands, Robber Armies and such all the way into the 20th century when the Soviet Union staged the first military paratroop drop to counter a similar problem back in 1929. Thus Congress can lay its power for this on this historical arrangement. That said, Presidents are to go after these *on their own* as President Jefferson did against the Barbary Pirates so as to secure the Nation. The actual CinC power is more accurately defined in the Constitution, this from Art. II, Sec. 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

As the Commander in Chief of the Navy the President gets the Admiralty power for ensuring the regularity of commerce on the High Seas which Congress, by later statute, has moved to include the space from the core of the planet to the edge of the atmosphere that is demarcated by the High Seas. Thus when the US is confronted with any transgression against its civil commerce via those seeking to put it in harms way via the means of warfare, the President, to safeguard his duties, must respond to them. This has happened with the USS Cole bombing and the bombing of the US Embassies in Kenya and Tanzania who have US Marine Corps protection. By being members of the Navy and under the Admiralty power, those officers carry the representation of the President and the United States with them in their official duties of protecting and safeguarding the Nation. Thus when Private War impinges upon the US in extra-territorial assets (Embassies) or direct representatives (ships at sea connected to the open ocean), that is not only Private War, but Piracy when done by no one affiliated with any army of any Nation.

Yes each and every President since... well, when was the first real attack on a Embassy by terrorists? Before Carter, surely, but he serves as the signpost for neglect of duty in 1979. For the *second* time the CAUF is doing something that any President from Jimmy Carter through George W. Bush should have done but has not had the wisdom or guts to do, and thus the most sluggish, least able to figure out the difference between its ass and random holes in the ground has had to do it: get the President to go after these miscreants waging illegal war on the US because it is his DUTY TO DO SO. And even if Iraq gets thoroughly cleaned up and stabilized, and the US withdraws with a treaty of some sort, the two paragraphs that invoke this ancient power in P20-21 will *still* be operative.

For a few short days the US Congress coalesced a bit of cartilage around its notochord and had something that was almost spine-like.

Don't worry, it dissolved after the passage of this and things went back to 'normal'.

But those two paragraphs still stand even if Iraq and Afghanistan become the new Gardens of Eden.

Can we get a Presidential candidate who will recognize this?



Pangloss said...

That's terrific.

Do you have a post where you link to the Law of Nations and other sources for some of the bigger and more arcane ideas you often mine, such as Admiralty Law?

A Jacksonian said...

Wolf - Here are a few of the sites that have the necessary documents to do historical research to find the basis of Western culture's foundings:

Yale Law School's Avalon Project - They have a large document load that looks to be expanding, and if you need to find something like Blackstone's Commentaries or Jackson's Bank Veto Message, then it is a wonderful place to start.

Constitution.org is a pretty haphazard affair, and while they have many good documents, some you cannot find easily from the front page or even the subsidiary links from the front page... the place needs a severe user-interface overhaul. I can reccomend their work on Law of Nations, of course, as it is one of my most frequent topics. They also have Grotius' On the Laws of War and Peace which gives a basis for the later Law of Nations work.

Admiralty law is a nasty thing to try and root out at its foundations. It appears that for all the fact that modern Admiralty law is based back in the 14th century, no one wants to put up that text or later translations. One place to go for scanned pages is Gallica site. A bit better is an article on Courts of Admiralty in Colonial America which is a help in getting your hands on the basis for Admiralty courts in the US and why the US would look to pre-Henry VIII for the root of Admiralty law in the US. The 1911 Encyclopedia Brittanica does a superb job in looking at this issue, also, and that 1911 Encyclopedia is a host for a wealth of knowledge if you can get the site to respond.

For the founding era, in particular, I recommend the Teaching American History site as they have done an excellent job gathering all of the Federalist and 'Anti-Federalist' papers, plus others not necessarily fitting in either of those views. From the Colonial era to the Founding, they are a wonderful site to search through and the nuggets of perspective found there is immense.

I do my best to make sure the documents get plentiful links, and send such support as I can to them. I have purchased a more recent reprint of Vattel's work for my own and will be looking for a good copy of the Black Book next. I have, perhaps, the weirdest compendium of texts around, but they serve as a useful set of tools for cross-referencing ideas... and many of the best texts are out of print or have few recent reprints. Things that used to be taught in college or 'were documents any learned person should have' are now nearly impossible to find. And yet the foundation and core of our modern world is in these works... now unlooked at nor used to guide crafting of laws and our perceptions of them.

That will come to no good end.