Administration lawyers also examined the leading cases in anticipatory self-defense. Generally, a country is permitted to defend itself in response to an attack or in the face of an imminent attack. Some of the lawyers argued, however, that international law required certain conditions to be present. The gun had to be loaded, cocked, and pointed, and the attacker had to have declared an intention to use force and demonstrated the capability to attack.
Others argued that the doctrine of anticipatory self-defense should be expanded in the twenty-first century, given the degree of harm resulting from weapons of mass destruction. How did these factors apply to Iraq?
Iraq had declared itself an enemy of the United States and had repeatedly demonstrated its intentions, going so far as an attempted assassination of President George H. W. Bush. They had continually fired on our aircrafts in the no-fly zone. They had chemical weapons and had already used them against the Iraqi people. We had little doubt Saddam would use chemical or biological weapons against the United States if given the opportunity, or share them with organizations such as al-Qaeda, who would use them against us. Given the massive scale of harm that would result, some of the lawyers argued that the threat to our country need not be as imminent or immediate as in the past.
The well-accepted Caroline test of self-defense stems from a nineteenth-century incident that affirmed the concept of preemptive self-defense in international law. This test says the necessity for preemptive self-defense must be instant, overwhelming, and leave no choice of means, or moments of deliberation. Many of the administration lawyers now concluded that the Caroline test was outdated and anticipatory self-defense should take into account the degree of harm. I asked John Bellinger to put together a memo summarizing the arguments the lawyers presented.
The principals also asked for legal guidance on the authority to use force in the no-fly zone in Iraq. The destruction of targets not posing a direct threat to our planes was a tricky question. The test was one of making a symmetrical response to an offense. In other words, if an Iraqi soldier shot an antiaircraft gun, we would not respond by dropping a nuclear bomb, but we might hit his site with a cruise missile.
A few days later, the principals received a threat assessment on the chemical plant in Iraq. The report said there was no hard evidence of a sophisticated lab. We had, however, various samples and other evidence to review, but they were delayed at the Turkish border for some reason. We did have some “signals” intelligence and information gleaned from detainees who hinted at the production of poisons, but we had no tangible evidence of biological or chemical weapons. Fortunately, the US government believed if the plant were struck, there was no high danger that any poisons there would be released into the air. A strike, however, would destroy any existing evidence.
The US government also believed that the plant had multiple layers of defense. The plant was defended by a dedicated group of fighters on-site and a second group stationed at a nearby town.
Vice President Cheney suggested the possibility of a B-2 airstrike, but he worried about the likely destruction of evidence, and how strong a case the United States could make afterward that we had destroyed an al-Qaeda chemical facility inside Iraq. Nevertheless, he felt we should take out the plant within days.
Secretary Rumsfeld wanted to wait until we received the samples of evidence, even though we could not have complete confidence in the chain of control confirming where the chemicals came from or how we obtained them. The samples could easily be compromised or provide false positives if tested. Yet Rumsfeld, too, felt we needed to act soon.
Even Colin Powell, who normally urged caution, conceded that if there was a facility up to no good, we should put together a target package. Unquestionably, the principals were concerned that the facility presented a medium-to-high danger. More sobering was the CIA’s assessment that Iraq was the alternative site for al-Qaeda, which had scattered after we invaded Afghanistan.
Twenty-four hours later, the principals were back in the Situation Room debating whether we should give Iraq an ultimatum before taking military action. Secretary of State Powell suggested that it would be better if many countries, not just the United States, issued the ultimatum. If not, many might question our authority to lay down an ultimatum. We would claim to be doing it as an agent of the UN Security Council, but without their approval.
Powell was right, of course, but I suspected others in the room held different opinions. In particular, I watched Rumsfeld. After a few seconds, he said, “The problem with a joint ultimatum is that you have multiple decision makers deciding whether the conditions of the ultimatum have been met.” For Rumsfeld, the ultimatum must require regime change.
Vice President Cheney agreed with Secretary Rumsfeld. He said, “We went to the UN last time because we felt we could get them on board and we believed this would put pressure on Congress. The number of coalition members isn’t as important as the quality. Hopefully, we will have others, but the UK, Australia, and Turkey are about all we need.”
This was not the first time Powell disagreed with Cheney and Rumsfeld. He responded, “Regime change is not UN policy. That is our unilateral policy. If this is our policy, I’m not sure you want to issue an ultimatum. We probably could not get the UN to agree to a regime change.”
Rumsfeld suggested that we issue an ultimatum but leave it on the table for three or four days before acting on it.
Vice President Cheney said that the president was interested in giving an ultimatum, however he cautioned again that we should attempt to replace Hussein’s regime with something more democratic. “This will affect the whole region,” he said, “so we really need to try to get a new representative government.”
Powell expressed skepticism about pushing for a democratic government. He suggested that we study further what Iraq might look like after Saddam and discuss our expectations.
As we moved into mid-August, the NSC continued to discuss the best option for dealing with the chemical plant—everything from air strikes to boots on the ground. The president continued to probe his advisors and seemed skeptical about the evidence. As usual, Cheney and Rumsfeld were aligned on their positions that we needed to act, while Powell and Rice took a more cautious approach.
On August 13, the principals received an updated report from the CIA. This time there was no equivocation; the report expressed no doubt the facility in Khurmal was producing toxins, and the CIA expressed a high level of certainty that the facility was linked to al-Qaeda. We still did not have “eyes on” tangible proof, but this was another serious confirmation.
Powell again suggested a cautious response. He believed that an air strike was one thing, but a large strike might present some problems with the Turks. “Is this target of sufficient value and are we confident of the intelligence?” he asked.
The vice president reiterated his earlier position on taking out the plant. “If we do not do it, there will be serious questions about our commitment to the war on terror,” he warned. He was convinced the Bush Doctrine demanded a response, if even a limited one.
It now appeared that the administration was on a course to effect change in Iraq. We were meeting every day at this point, either as the National Security Council or the principals committee, to discuss one aspect or another of dealing with Saddam. I took some comfort in knowing that the president wasn’t making this decision based on emotion or a whim, but he was taking his time, encouraging his advisors to study and discuss every issue, weighing carefully each aspect and all contingencies.
Moreover, the president wanted to have international support for military action, but he was not about to compromise our national security for the sake of any international body. Our challenge was to present an argument that would generate the broadest range of support. Powell believed that we should make the case that Iraq was ignoring the UN resolutions—which they were, flagrantly. Cheney agreed that the offended party is the international community and the only way to protect the integrity
of the UN for future cases was to deal with this problem now.
On August 16, Powell reiterated his oft-stated concern, “The UN will not agree there is legal justification for war.” Secretary Powell was right. For the UN, there were only two scenarios where use of force was lawful. The first, when acting in self-defense. The second, when acting pursuant to a UN Security Council resolution. All other military action was not supported under international law, according to the UN secretary general.
The president listened carefully to his advisors, then said, “We need to be careful not to condition our efforts on a UN resolution, but we do not want to look like we are designing future governments around the world. All we should be determining is that the world is more secure and more peaceful.”
I appreciated the president’s motives, but his goals seemed like a tough balancing act to me.
Then he continued his remarks about Hussein. “We need to make the case that this guy is a threat, and this is part of the war on terrorism. This is a dangerous guy,” he said. “If we don’t believe that, we should stay with the old containment policy.”
On September 4, 2002, the president and his advisors met with congressional leaders in the Cabinet Room to discuss Iraq. I sat in my usual spot, just behind the president, as he outlined the case against Iraq and his concerns about Saddam.
Senator Tom Daschle asked several questions: What was the evidence of nuclear weapons or WMD? Who would be in the new regime after Saddam? How do we as a country do this?
The president and other members of the National Security team provided patient and thorough answers. The president concluded the responses to Daschle by saying, “We are the powerful person—we will use might to protect people.”
Representative Dick Gephardt voiced concerns about Saddam, emphasizing that we needed to relay to the American people the danger to them from weapons of mass destruction, but he also expressed worry about what might happen after Hussein was gone.
Senator Joe Biden said he was glad we were saying that this was a “world problem,” rather than simply an American concern. “It’s important to check all the boxes,” he said. “It will cost a lot of money and we will be there for a while. We need to tell the American people.”
Representative Henry Hyde said, “Everyone has a stake in this.” He urged that we try to get inspectors in, and when Iraq balked, we would have the high moral ground.
Representative Nancy Pelosi said it should be a pillar of foreign policy that a country not contribute to the development of weapons of mass destruction.
I listened carefully, and not a single person in the room suggested, “Do not use force against Iraq.” Not one. Senator John Warner commented, “This meeting is one of the most important meetings ever to be held in the Cabinet Room.”
Senator Carl Levin said that there was no question Hussein would use all his weapons if we attacked. The question was, therefore, would he use the weapons if we did not attack? Levin believed that Saddam wanted to stay in power. “Is he deterrable? Can he be contained?” he asked, and then reminded us Bush 41 had told Hussein if he used nuclear weapons he was done.
During the meeting, the president promised full cooperation with Congress, keeping them informed of events and providing information, but the words congressional approval were never uttered. Nevertheless, as Senator Warner had noted, this was an important milestone. Congressional leadership was now informed that the Bush administration was weighing military options consistent with the regime change authorized by Congress during the Clinton administration in 1998.
Afterward, I spoke to the president briefly, congratulating him on a good meeting. Although I believe that our country is better off when both elected branches agree on the use of force, I also cautioned him not to use the term approval when talking about congressional support. Certainly, the president understood that given the right circumstances, he had a certain degree of authority under the US Constitution to take military action as commander in chief, with or without approval by Congress. I understood it was important for the president to have Congress’s support, but I also understood it was my job to help protect the institution of the presidency, even if that complicated the president’s efforts.
The weekend of September 6, the National Security team met with the president at Camp David. Attending the meeting were General Tommy Franks, Dick Cheney, Andy Card, Colin Powell, Don Rumsfeld, Condi Rice, Steve Hadley, George Tenet, General Myers, and me. Although we spoke at length about the president’s upcoming speech to open the United Nations session, much of the weekend was spent discussing what to do about Saddam Hussein.
It was a thorny issue, because it seemed the president was convinced the United States needed to do something to protect our national security, but he genuinely hoped to garner international support, and the chances of doing that did not look good. The question, of course, was what would we do if we could not rally international support? Would we go to war in Iraq alone?
The president said, “The idea of attacking Iraq is not an easy one. Sending troops into harm’s way is not my first choice. Before we do, I want to make sure the cause is just, that we have the support we need, and that we will win.” I nodded in agreement. One of the requirements of a lawful war is that the reason for war is legitimate—that there is just cause.
Colin Powell suggested taking the case to the UN in hopes that at least some of the nations would agree and get on board. All nations expected the inspectors to be allowed into Iraq, so if we could get a UN resolution for a firm date and time for inspections, with no conditions, Powell thought he could get the votes of the Security Council.
The president added that the inspectors had to be able to go anyplace in Iraq, anytime.
Tenet predicted that Saddam would try to find ways to negotiate out. He would attempt to buy as much time as possible.
Powell dismissed this, saying that we should not enter into any negotiations on inspections.
The president listened carefully, then said, “I’m leaning toward going to the UN for an ultimatum.” He acknowledged we were in a cloudy period, in part because our own weak policy had created ambiguity in the international community. The president said, “First, I’m concerned that a go-it-alone policy will affect our relations in the Middle East. Second, post-Saddam will require an international effort, so our current policy ought to be something that works with the rules of the past. But any abrogation will lead to war.” Bush nodded as he noted that he shared Vice President Cheney’s concern that we not get stalled by the international community.
In an odd moment that became almost funny, we discussed what it would take to find Saddam. Everyone agreed that it would be difficult, since Saddam often used doubles for himself. The president was surprised to learn that Saddam employed impersonators, and he laughed at the idea.
Someone said, “You have a double too. You just don’t know it.”
President Bush laughed again. “Yeah, I do. Dana Carvey!” The president’s quick response evoked a chuckle from everyone in the room who had heard the comedian’s impersonations of Bush’s father.
It was a much needed, albeit brief moment of levity in another tense round of discussions, and the president quickly got serious again. “If it expedites the mission, I’m willing to let Saddam leave Iraq.” It was an idea worth considering. Other despots such as Uganda’s Idi Amin, Haiti’s Claude “Baby Doc” Duvalier, and even the Shah of Iran had escaped turmoil in their homeland, been granted asylum in friendly countries, and lived comfortably in exile. While the thought of Saddam absconding with his billions of dollars and living in luxury for the remainder of his life was not a pleasant one, it might be worth it if it prevented the loss of lives—especially American lives—in Iraq.
Don Rumsfeld questioned whether our efforts in Iraq would take away from our war on terror.
“This is part of the war on terror,” Bush responded. “We cannot let al-Qaeda get the upper hand. That would be a disaster.” After more d
iscussion, the president concluded the meeting. “The key,” he said, “is to get this done as quickly as possible. We have to be prepared to deal with any contingencies. The hardest part is the run-up; the second hardest is the post-Saddam Iraq, and the third part is the military piece.”
I returned to Washington from Camp David with a much clearer understanding of what the president wanted. We were going to walk a tightrope, pushing the international community but preparing to take action alone if our national security warranted it.
The September 9 NSC discussion centered around a recent meeting between President Bush and British prime minister Tony Blair. Interestingly, though Blair was a liberal and Bush a conservative, they both viewed the threat from Hussein through similar lenses—Saddam was dangerous not only to his own people but to people in our nations as well. It was reassuring to know that our closest ally saw the situation similarly.
Bush and Blair had discussed seeking two possible UN resolutions, the first of which would find Iraq in material breach of previous resolutions, and explain what Saddam must do to come into immediate compliance. A second resolution could be passed later, we hoped, if Saddam failed to comply, and would authorize member nations to use all necessary force to secure Saddam’s compliance, including the use of military force.
Blair believed the United States should push for the first resolution, but remain silent about the second until we were sure it was needed. Everyone in the NSC meeting agreed that one resolution was the neatest package. Further, we did not want to give the UN a veto over the president if he felt we needed to act unilaterally to protect our nation.
Rumsfeld and Cheney expressed concerns about relying upon the UN inspections. A resolution calling for inspections would allow the inspectors to greatly influence the timetable of US actions, and perhaps drive the military decision. They asked questions such as, “How firm will United Nations weapons inspector, Hans Blix, be with Saddam?”
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