b'Authority of the President Under Domestic and\nInternational Law to Use Military Force Against Iraq\nThe President possesses constitutional authority to use military force against Iraq to protect United\nStates national interests. This independent constitutional authority is supplemented by congressional\nauthorization in the form of the Authorization for Use of Military Force Against Iraq Resolution.\nUsing force against Iraq would be consistent with international law because it would be authorized by\nthe United Nations Security Council or would be justified as anticipatory self-defense.\n\nOctober 23, 2002\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT *\nI. Background ...................................................................................................... 145\nII. Domestic Legal Authority for Use of Force Against Iraq............................... 150\nA. Constitutional Authority .......................................................................... 150\nB. Statutory Authority .................................................................................. 153\n1. Public Law 102-1 .............................................................................. 153\n2. Public Law 105-235 .......................................................................... 158\n3. Public Law 107-40 ............................................................................ 159\nC. The War Powers Resolution .................................................................... 159\nIII. Authority Under International Law to Use Force Against Iraq ..................... 162\nA. U.N. Security Council Authorization ...................................................... 162\n1. The Cease-Fire, Material Breach, and Treaty Law............................ 163\n2. Remedies ........................................................................................... 167\n3. State Practice on Suspension in Response to Material Breach .......... 169\n4. Armistice Law ................................................................................... 173\n5. UNSCR 688....................................................................................... 176\nB. Anticipatory Self-Defense ....................................................................... 177\n1. The Caroline Test.............................................................................. 180\n2. Necessity ........................................................................................... 182\n3. State Practice ..................................................................................... 184\na. Cuban Missile Crisis .................................................................. 184\nb. Osirak Reactor Strike ................................................................. 186\nc. 1986 Strike Against Libya.......................................................... 187\nd. 1989 Intervention in Panama...................................................... 189\ne. 1993 Strike Against Iraq............................................................. 190\nf. 1998 Attack on Afghanistan and Sudan...................................... 191\n4. The Current Test................................................................................ 194\n\n*\nEditor\xe2\x80\x99s Note: For the book edition of this memorandum opinion, some of the internet citations\nhave been updated or replaced with citations of equivalent printed authorities.\n\n143\n\n227-329 VOL_26_PROOF.pdf 153\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\n5. Iraq .................................................................................................... 195\nIV. Conclusion..................................................................................................... 197\nYou have asked our Office whether the President has the authority, under both\ndomestic and international law, to use military force against Iraq. This memorandum confirms our prior advice to you regarding the scope of the President\xe2\x80\x99s\nauthority. 1 We conclude that the President possesses constitutional authority to\norder the use of force against Iraq to protect our national interests. This independent authority is supplemented by congressional authorization in the form of the\nAuthorization for Use of Military Force Against Iraq Resolution, Pub. L. No.\n102-1, 105 Stat. 3 (1991), which supports the use of force to secure Iraq\xe2\x80\x99s\ncompliance with its international obligations following the liberation of Kuwait,\nand the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224\n(2001), which supports military action against Iraq if the President determines Iraq\nprovided assistance to the perpetrators of the terrorist attacks of September 11,\n2001. In addition, using force against Iraq would be consistent with international\nlaw, because it would be authorized by the United Nations (\xe2\x80\x9cU.N.\xe2\x80\x9d) Security\nCouncil, or would be justified as anticipatory self-defense.\nThis memorandum is divided into three sections. First, we explain the background to the current conflict with Iraq, touching upon the U.N. Security Council\nresolutions related to the Persian Gulf War and its aftermath, and highlighting the\nsituations in which the United States has used force against Iraq between 1991 and\nthe present. Second, we discuss the President\xe2\x80\x99s authority under domestic law to\ndirect military action against Iraq, examining both his constitutional authority and\nsupplementary congressional support. Finally, we detail the justification under\ninternational law for the United States to use force against Iraq, considering the\ncircumstances in which the U.N. Security Council has authorized such action and\nthe scenarios in which it would be appropriate to use force in anticipatory selfdefense.\n\n1\nYou asked us to render our opinion based on the constitutional and other legal authorities that\nwould exist in the absence of new authorization from either Congress or the United Nations (\xe2\x80\x9cU.N.\xe2\x80\x9d)\nSecurity Council. We note that on October 16, 2002, the President signed into law the Authorization for\nUse of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498, which\nauthorizes the President to use force against Iraq to enforce relevant U.N. Security Council resolutions\nregarding Iraq and to defend the national security of the United States from the threat posed by Iraq.\nWe have not considered here the legal effect of that resolution. As this memorandum makes clear, even\nprior to the adoption of the Resolution the President had sufficient constitutional and statutory authority\nto use force against Iraq. We also note that negotiations are ongoing in the U.N. Security Council on a\nnew resolution regarding Iraq, but we do not address any of the proposed terms here.\n\n144\n\n227-329 VOL_26_PROOF.pdf 154\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nI. Background\nPrior to examining the President\xe2\x80\x99s legal authority to use force in Iraq, it is\nuseful to explain some of the background to the current conflict. On August 2,\n1990, Iraq invaded Kuwait. The next day, the U.N. Security Council (\xe2\x80\x9cSecurity\nCouncil\xe2\x80\x9d) passed U.N. Security Council Resolution (\xe2\x80\x9cUNSCR\xe2\x80\x9d) 660, the first of\nmany resolutions condemning Iraq\xe2\x80\x99s actions and demanding withdrawal from\nKuwait. See S.C. Res. 660, U.N. Doc. S/RES/660 (Aug. 2, 1990). For months, the\nworld community sought a diplomatic solution, including sanctions, to persuade\nIraq to leave Kuwait. See Address to the Nation Announcing Allied Military\nAction in the Persian Gulf, 1 Pub. Papers of Pres. George Bush 42, 43 (Jan. 16,\n1991).\nOn November 29, 1990, the Security Council adopted UNSCR 678, which gave\nIraq until January 15, 1991 to implement UNSCR 660 fully. See S.C. Res. 678,\nU.N. Doc. S/RES/678 (Nov. 29, 1990). In the absence of compliance by Iraq,\nparagraph 2 of UNSCR 678 authorized member states \xe2\x80\x9cto use all necessary means\nto uphold and implement resolution 660 (1990) and all subsequent relevant\nresolutions and to restore international peace and security in the area.\xe2\x80\x9d Id. Iraq\nrefused to withdraw from Kuwait before the January 15th deadline, and Operation\nDesert Storm began the next day. Allied air forces commenced an attack on\nmilitary targets in Iraq and Kuwait. Ground forces were introduced on February\n23, 1991, and Iraq was expelled from Kuwait four days later. Exactly 100 hours\nafter ground operations began, President George H.W. Bush suspended offensive\ncombat operations. See Address to the Nation on the Suspension of Allied\nOffensive Combat Operations in the Persian Gulf, 1 Pub. Papers of Pres. George\nBush 187 (Feb. 27, 1991).\nOn April 3, 1991, the U.N. Security Council adopted UNSCR 687, which\nestablished the conditions for a formal cease-fire suspending hostilities in the\nPersian Gulf. UNSCR 687 \xe2\x80\x9creaffirm[ed] the need to be assured of Iraq\xe2\x80\x99s peaceful\nintentions\xe2\x80\x9d given Iraq\xe2\x80\x99s invasion and occupation of Kuwait, its prior use of\nchemical weapons and ballistic missiles in unprovoked attacks, and reports that it\nhad attempted to acquire materials to build nuclear weapons. S.C. Res. 687, pmbl.\n\xc2\xb6 4, U.N. Doc. S/RES/687 (Apr. 3, 1991). To that end, section C of UNSCR 687\nimposed a variety of conditions on Iraq. First, the Security Council \xe2\x80\x9cdecide[d]\xe2\x80\x9d\nthat Iraq must:\nunconditionally accept the destruction, removal, or rendering harmless, under international supervision, of:\n(a) All chemical and biological weapons and all stocks of agents and\nall related subsystems and components and all research, development, support and manufacturing facilities . . . ; [and]\n\n145\n\n227-329 VOL_26_PROOF.pdf 155\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\n(b) All ballistic missiles with a range greater than [150] kilometres,\nand related major parts and repair and production facilities.\nId. \xc2\xb6 8. Second, Iraq must agree to \xe2\x80\x9curgent, on-site inspection\xe2\x80\x9d to ensure its\ncompliance with this requirement. Id. \xc2\xb6 9(a). Third, Iraq must \xe2\x80\x9cunconditionally\nundertake not to use, develop, construct or acquire\xe2\x80\x9d such weapons of mass\ndestruction (\xe2\x80\x9cWMD\xe2\x80\x9d) and their delivery systems. Id. \xc2\xb6 10. Finally, Iraq must\n\xe2\x80\x9cunconditionally agree not to acquire or develop nuclear weapons or nuclearweapon[s]-usable material or any subsystems or components or any [related]\nresearch, development, support or manufacturing facilities,\xe2\x80\x9d and to accept \xe2\x80\x9curgent\non-site inspection and the destruction, removal or rendering harmless as appropriate\xe2\x80\x9d of all such nuclear-related weapons or materials. Id. \xc2\xb6 12. To carry out on-site\ninspections of Iraq\xe2\x80\x99s WMD programs, the Resolution called for the establishment\nof a Special Commission (\xe2\x80\x9cUNSCOM\xe2\x80\x9d) to act in cooperation with the International Atomic Energy Agency (\xe2\x80\x9cIAEA\xe2\x80\x9d), which was to take custody of all of Iraq\xe2\x80\x99s\nnuclear-weapons-usable materials. Id. \xc2\xb6\xc2\xb6 9, 13. 2 In addition, UNSCR 687 required\nIraq, inter alia, to renounce international terrorism. Id. \xc2\xb6 32. On April 6, 1991,\nIraq officially accepted the terms set forth in UNSCR 687, and a formal cease-fire\nwent into effect between Iraq, Kuwait and the U.N. members who had cooperated\nwith Kuwait under UNSCR 678, including the United States. Id. \xc2\xb6 33.\nToward the end of the Gulf War, Iraq brutally suppressed Kurdish insurrections\nthroughout Iraqi Kurdistan, causing the flight of hundreds of thousands of civilians\ninto Iran and Turkey. See generally Letter to Congressional Leaders on the\nSituation in the Persian Gulf, 1 Pub. Papers of Pres. George Bush 521, 521-22\n(May 17, 1991). In response, the Security Council adopted UNSCR 688, which\n\xe2\x80\x9ccondemn[ed]\xe2\x80\x9d the repression of the Iraqi civilian population and found that the\nconsequences of such repression\xe2\x80\x94\xe2\x80\x9ca massive flow of refugees towards and across\ninternational frontiers and . . . cross-border incursions\xe2\x80\x9d\xe2\x80\x94threatened international\npeace and security in the region. S.C. Res. 688, U.N. Doc. S/RES/688 (Apr. 5,\n1991). To aid the refugees who had fled northern Iraq, the United States joined the\nallied coalition in launching Operation Provide Comfort, which provided humanitarian relief for the Kurds. In addition, the coalition established a no-fly zone\nprohibiting Iraqi military aircraft from flying north of the 36th parallel. See\nRemarks on Assistance for Iraqi Refugees and a News Conference, 1 Pub. Papers\nof Pres. George Bush 378, 378-79 (Apr. 16, 1991). Due to increased repression of\n\n2\nSignificantly, UNSCR 687 also specifically \xe2\x80\x9caffirm[ed]\xe2\x80\x9d thirteen Security Council Resolutions\nrelating to Iraq, including UNSCR 678, \xe2\x80\x9cexcept as expressly changed . . . to achieve the goals of [this]\nresolution, including a formal cease-fire.\xe2\x80\x9d S.C. Res. 687, \xc2\xb6 1. This affirmance of UNSCR 678, which\nwas not \xe2\x80\x9cexpressly changed\xe2\x80\x9d by UNSCR 687, confirmed that its authorization to use force continued in\neffect after the cease-fire. Several years later, in UNSCR 949, the Security Council again \xe2\x80\x9creaffirm[ed]\xe2\x80\x9d UNSCR 678, \xe2\x80\x9cin particular paragraph 2.\xe2\x80\x9d S.C. Res. 949, pmbl. \xc2\xb6 1, U.N. Doc. S/RES/949\n(Oct. 15, 1994).\n\n146\n\n227-329 VOL_26_PROOF.pdf 156\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nthe civilian population in 1992 by Saddam Hussein in both the northern and\nsouthern parts of Iraq, British, French and U.S. coalition forces began patrolling an\nadditional no-fly zone south of the 32nd parallel to protect Iraqi Shiites. See Letter\nto Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations\nSecurity Council Resolutions, 2 Pub. Papers of Pres. George Bush 1574, 1574-75\n(Sept. 16, 1992). The no-fly zones were intended to assist in the monitoring of\nIraqi compliance with UNSCR 687 and UNSCR 688, and to discourage significant\nIraqi military operations against the civilian population. See Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security\nCouncil Resolutions, 2 Pub. Papers of Pres. George Bush 2269, 2269-70 (Jan. 19,\n1993); Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with\nUnited Nations Security Council Resolutions, 1 Pub. Papers of Pres. William J.\nClinton 715, 716 (May 21, 1993). Iraq does not accept the no-fly zones as\nlegitimate and periodically threatens coalition forces patrolling the zones. The\nUnited States and Britain have responded by repeatedly attacking Iraqi surface-toair missile sites and related facilities in self-defense. See, e.g., Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security\nCouncil Resolutions, 2 Pub. Papers of Pres. George Bush 2269, 2269 (Jan. 19,\n1993); Iraq\xe2\x80\x99s Compliance with United Nations Security Council Resolutions, H.R.\nDoc. No. 107-185, at 4 (Jan. 24, 2002).\nFrom its inception, UNSCOM encountered resistance from Iraq. On August 15,\n1991, little more than three months after the adoption of UNSCR 687, the Security\nCouncil \xe2\x80\x9ccondemn[ed]\xe2\x80\x9d Iraq\xe2\x80\x99s \xe2\x80\x9cserious violation\xe2\x80\x9d of a number of its obligations\nregarding the destruction and dismantling of its WMD program and of its agreement to cooperate with UNSCOM and the IAEA, and stated that the violation\n\xe2\x80\x9cconstitutes a material breach of the relevant provisions of [UNSCR 687] which\nestablished a cease-fire and provided the conditions essential to the restoration of\npeace and security in the region.\xe2\x80\x9d S.C. Res. 707, \xc2\xb6 1, U.N. Doc. S/RES/707 (Aug.\n15, 1991). Shortly thereafter, President George H.W. Bush warned that the United\nStates would not tolerate Iraq\xe2\x80\x99s misrepresentations regarding, and denial of U.N.\naccess to, its WMD program: \xe2\x80\x9c[I]f necessary [the United States] will take action to\nensure Iraqi compliance with the Council\xe2\x80\x99s decisions so as to fully implement\nResolution 678\xe2\x80\x99s call for the restoration of international peace and security to the\nPersian Gulf region.\xe2\x80\x9d Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s\nCompliance with United Nations Security Council Resolutions, 2 Pub. Papers of\nPres. George Bush 1164, 1164-65 (Sept. 16, 1991). Several months later, on\nJanuary 17, 1993, President Bush ordered the destruction by U.S. missiles of a\nnuclear facility near Baghdad, \xe2\x80\x9cto help achieve the goals of U.N. Security Council\n\n147\n\n227-329 VOL_26_PROOF.pdf 157\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nResolutions 687, 707 and 715 3 requiring Iraq to accept the inspection and elimination of its weapons of mass destruction and ballistic missiles.\xe2\x80\x9d Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security\nCouncil Resolutions, 2 Pub. Papers of Pres. George Bush 2269, 2270 (Jan. 19,\n1993). Although the nuclear facility had been inspected, and some equipment had\nbeen removed, President Bush warned that it could be used again to support Iraq\xe2\x80\x99s\nnuclear weapons program. Id.\nIn addition to directing the use of force to respond to threats to coalition forces\nin the no-fly zones, President Clinton ordered military action against Iraq on three\nseparate occasions. First, in June 1993, President Clinton ordered a cruise missile\nattack on the principal command-and-control facility of the Iraqi intelligence\nservice (\xe2\x80\x9cIIS\xe2\x80\x9d) in Baghdad. The strike was in response to \xe2\x80\x9ccompelling evidence\xe2\x80\x9d\nthat the IIS had directed and pursued a failed attempt to assassinate President\nGeorge H.W. Bush in April of that year. Letter to Congressional Leaders on the\nStrike on Iraqi Intelligence Headquarters, 1 Pub. Papers of Pres. William J.\nClinton 940 (June 28, 1993). President Clinton explained that the goal of the strike\nwas \xe2\x80\x9cto target Iraq\xe2\x80\x99s capacity to support violence against the United States and\nother nations and to deter Saddam Hussein from supporting such outlaw behavior\nin the future.\xe2\x80\x9d Address to the Nation on the Strike on Iraqi Intelligence Headquarters, 1 Pub. Papers of Pres. William J. Clinton 938, 938 (June 26, 1993).\nSecond, President Clinton ordered U.S. cruise missile strikes in September\n1996 to respond to an Iraqi attack in northern Iraq (\xe2\x80\x9cOperation Desert Strike\xe2\x80\x9d).\nWhen U.S. intelligence revealed that Iraq had engaged in a military buildup near\nIrbil, the United States warned Iraq not to use military force. Iraq ignored the\nwarning and stormed Irbil. In response, the United States extended the no-fly zone\nin southern Iraq from the 32nd to the 33rd parallel and conducted military strikes\nagainst fixed, surface-to-air missile sites, command-and-control centers, and air\ndefense control facilities south of the 33rd parallel. See Letter for Newt Gingrich,\nSpeaker of the House of Representatives, from President William J. Clinton 1-2\n(Sept. 5, 1996) (\xe2\x80\x9cGingrich Letter\xe2\x80\x9d) (claiming authority under, inter alia, UNSCRs\n678, 687, and 688). The strikes were designed to show Saddam Hussein that he\nmust halt all actions that threaten international peace and security. See id. at 1.\nThird, in December 1998, President Clinton directed missile and aircraft strikes\nagainst Iraq in response to Iraqi breaches of its obligations under various\nUNSCRs, particularly Iraq\xe2\x80\x99s failure to cooperate fully with U.N. inspections of its\nWMD program. See Letter to Congressional Leaders on the Military Strikes\nAgainst Iraq, 2 Pub. Papers of Pres. William J. Clinton 2195, 2195-96 (Dec. 18,\n1998) (claiming authority under, inter alia, UNSCRs 678 and 687). The 1998\n\n3\nUNSCR 715 approved UNSCOM and IAEA plans for inspecting Iraq\xe2\x80\x99s WMD program and\ndemanded that Iraq unconditionally meet its obligations under the plans and give its full cooperation to\ninternational inspections. S.C. Res. 715, \xc2\xb6 1, U.N. Doc. S/RES/715 (Oct. 11, 1991).\n\n148\n\n227-329 VOL_26_PROOF.pdf 158\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nstrikes were the culmination of a stand-off between Iraq and the United Nations\nregarding Iraq\xe2\x80\x99s refusal to permit effective international inspections of its WMD\nprogram. In the fall of 1997, for example, Iraq demanded that all U.S. members of\nthe UNSCOM inspection team depart Iraq immediately and asked that UNSCOM\nwithdraw its \xe2\x80\x9ccover\xe2\x80\x9d for the U-2 reconnaissance aircraft flown by the United\nStates as part of UNSCOM\xe2\x80\x99s efforts to detect Iraq\xe2\x80\x99s WMD program. See\nUNSCOM: Chronology of Main Events (Dec. 1999), available at www.un.org/\nDepts/unscom/Chronology/chronologyframe.htm (last visited May 3, 2012); see\nalso Michael L. Cornell, Comment, A Decade of Failure: The Legality and\nEfficacy of United Nations Actions in the Elimination of Iraqi Weapons of Mass\nDestruction, 16 Conn. J. Int\xe2\x80\x99l L. 325, 337 & n.95 (2001). The Security Council\nresponded by adopting UNSCR 1137, which \xe2\x80\x9ccondemn[ed] the continued\nviolations by Iraq of its obligations under the relevant resolutions to cooperate\nfully and unconditionally with [UNSCOM],\xe2\x80\x9d found that the situation continued to\n\xe2\x80\x9cconstitute a threat to international peace and security,\xe2\x80\x9d and warned that \xe2\x80\x9cserious\nconsequences\xe2\x80\x9d would result if Iraq failed to comply unconditionally and immediately with its international obligations. S.C. Res. 1137, pmbl. \xc2\xb6 8, \xc2\xb6 1, U.N. Doc.\nS/RES/1137 (Nov. 12, 1997).\nIn early 1998, Iraq\xe2\x80\x99s continued intransigence prompted the United States to\nthreaten military force to compel its compliance. See Contemporary Practice of\nthe United States Relating to International Law, 93 Am. J. Int\xe2\x80\x99l L. 470, 472 (Sean\nD. Murphy ed., 1999). Although U.N. Secretary General Kofi Annan secured a\nMemorandum of Understanding (\xe2\x80\x9cMOU\xe2\x80\x9d) confirming Iraq\xe2\x80\x99s acceptance of all\nrelevant Security Council resolutions and its reaffirmation to cooperate fully with\nUNSCOM and the IAEA in February 1998, Iraq formally halted all cooperation\nwith UNSCOM at the end of October. Id. at 473. The Security Council responded\nby adopting UNSCR 1205, which condemned Iraq\xe2\x80\x99s decision as a \xe2\x80\x9cflagrant\nviolation of resolution 687 . . . and other relevant resolutions.\xe2\x80\x9d S.C. Res. 1205, \xc2\xb6 1,\nU.N. Doc. S/RES/1205 (Nov. 5, 1998). On November 15, the United States\nrefrained from launching a massive missile attack against Iraq, only after Iraq\ncommitted to full cooperation with U.N. inspections. Remarks on the Situation in\nIraq and an Exchange with Reporters, 2 Pub. Papers of Pres. William J. Clinton\n2035 (Nov. 15, 1998). But despite Iraq\xe2\x80\x99s promises, on December 15, the Executive\nDirector of UNSCOM reported that the Commission could not complete its\nmandate due to Iraq\xe2\x80\x99s obstructionism.\nThe next day, the United States and Britain launched a seventy-hour missile\nand aircraft bombing campaign against approximately one hundred targets in\nIraq\xe2\x80\x94facilities that were actively involved in WMD and ballistic missile activities, or that posed a threat to Iraq\xe2\x80\x99s neighbors or to U.S forces conducting the\noperation. See Letter to Congressional Leaders on the Military Strikes Against\nIraq, 2 Pub. Papers of Pres. William J. Clinton 2195, 2195-96 (Dec. 18, 1998).\nPresident Clinton explained:\n\n149\n\n227-329 VOL_26_PROOF.pdf 159\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nI believe our action in Iraq clearly is in America\xe2\x80\x99s interest. Never\nagain can we allow Saddam Hussein to develop nuclear weapons,\npoison gas, biological weapons, or missiles to deliver them. He has\nused such terrible weapons before against soldiers, against his neighbors, against civilians. And if left unchecked, he\xe2\x80\x99ll use them again.\nThe President\xe2\x80\x99s Radio Address, 2 Pub. Papers of Pres. William J. Clinton 2197,\n2197 (Dec. 19, 1998). President Clinton warned that if UNSCOM were not\nallowed to resume its work, the United States would \xe2\x80\x9cremain vigilant and prepared\nto use force if we see that Iraq is rebuilding its weapons programs.\xe2\x80\x9d Address to the\nNation on Completion of the Military Strikes in Iraq, 2 Pub. Papers of Pres.\nWilliam J. Clinton 2199, 2200 (Dec. 19, 1998). He also cautioned that the United\nStates must be prepared to use force again if Saddam Hussein threatened his\nneighbors, challenged the no-fly zones, or moved against the Kurds in Iraq. See\nAddress to the Nation Announcing Military Strikes on Iraq, 2 Pub. Papers of Pres.\nWilliam J. Clinton 2182, 2184 (Dec. 16, 1998).\nSince the 1998 airstrikes, Iraq has continued to refuse to permit U.N. inspections of its WMD program. In December 1999, the Security Council decided to\ndisband UNSCOM and replace it with the United Nations Monitoring, Verification\nand Inspection Commission (\xe2\x80\x9cUNMOVIC\xe2\x80\x9d). S.C. Res. 1284, \xc2\xb6 1, U.N. Doc.\nS/RES/1284 (Dec. 17, 1999). Although the Security Council \xe2\x80\x9cdecide[d]\xe2\x80\x9d that Iraq\nmust allow UNMOVIC teams immediate, unconditional and unrestricted access to\nany and all areas, facilities, equipment, records and means of transport that they\nneed to inspect in accordance with their mandate, id. \xc2\xb6 4, Iraq has not permitted\nUNMOVIC to conduct any inspections.\nII. Domestic Legal Authority for Use of Force Against Iraq\nA. Constitutional Authority\nWe have consistently advised that the Constitution grants the President unilateral power to take military action to protect the national security interests of the\nUnited States. See generally The President\xe2\x80\x99s Constitutional Authority to Conduct\nMilitary Operations Against Terrorists and Nations Supporting Them, 25 Op.\nO.L.C. 188 (2001) (\xe2\x80\x9cPresident\xe2\x80\x99s Authority to Conduct Military Operations\xe2\x80\x9d). 4\n4\nSee also Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative\nAffairs, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re:\nSpecter/Harkin Joint Resolution Calling for Congress to Vote on a Resolution for the Use of Force by\nthe United States Armed Forces Against Iraq (July 23, 2002); Applying the War Powers Resolution to\nthe War on Terrorism: Hearing Before the Subcomm. on the Constitution, Federalism, and Property\nRights of the S. Comm. on the Judiciary, 107th Cong. 7-13 (2002) (testimony of John C. Yoo, Deputy\nAssistant Attorney General, Office of Legal Counsel); Proposed Deployment of United States Armed\nForces into Bosnia, 19 Op. O.L.C. 327 (1995) (\xe2\x80\x9cBosnia Opinion\xe2\x80\x9d); Deployment of United States Armed\n\n150\n\n227-329 VOL_26_PROOF.pdf 160\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nUnder Article II, Section 2, the President is the \xe2\x80\x9cCommander in Chief of the Army\nand Navy of the United States.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2. The Constitution also\ngives the President exclusive powers as the Chief Executive and the \xe2\x80\x9csole organ of\nthe federal government in the field of international relations.\xe2\x80\x9d United States v.\nCurtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); see also Dep\xe2\x80\x99t of Navy v.\nEgan, 484 U.S. 518, 529 (1988) (the Supreme Court has \xe2\x80\x9crecognized \xe2\x80\x98the\ngenerally accepted view that foreign policy was the province and responsibility of\nthe Executive\xe2\x80\x99\xe2\x80\x9d) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)). Although\nArticle I vests in Congress the power to \xe2\x80\x9craise and support Armies,\xe2\x80\x9d \xe2\x80\x9cprovide and\nmaintain a Navy,\xe2\x80\x9d and to appropriate funds to support the military\xe2\x80\x94powers that\ngive Congress effective control over the supply of military resources to the\nPresident as Commander in Chief 5\xe2\x80\x94as well as the power to issue formal declarations of war, U.S. Const. art. I, \xc2\xa7 8, cls. 1, 11-13, Article II vests in the President,\nas Chief Executive and Commander in Chief, the constitutional authority to use\nsuch military forces as are provided to him by Congress to engage in military\nhostilities to protect the national interest of the United States. The Constitution\nnowhere requires for the exercise of such authority the consent of Congress. Cf.\nU.S. Const. art. I, \xc2\xa7 10, cl. 3 (\xe2\x80\x9cNo State shall, without the Consent of Congress, . . .\nengage in War, unless actually invaded, or in such imminent Danger as will not\nadmit of delay.\xe2\x80\x9d); Articles of Confederation of 1778, art. IX, \xc2\xa7 6, 1 Stat. 4, 8 (\xe2\x80\x9cThe\nUnited States, in Congress assembled, shall never engage in a war . . . unless nine\nStates assent to the same . . . .\xe2\x80\x9d). Thus, as then-Attorney General Robert Jackson\nexplained more than sixty years ago, the President\xe2\x80\x99s authority as Commander in\nChief \xe2\x80\x9chas long been recognized as extending to the dispatch of armed forces\noutside of the United States . . . for the purpose of protecting . . . American\ninterests.\xe2\x80\x9d Training of British Flying Students in the United States, 40 Op. Att\xe2\x80\x99y\nGen. 58, 62 (1941) (Jackson, A.G.).\nPresidents have long undertaken military actions pursuant to their constitutional\nauthority as Chief Executive and Commander in Chief and their constitutional\nForces into Haiti, 18 Op. O.L.C. 173 (1994) (\xe2\x80\x9cHaiti Opinion\xe2\x80\x9d); Authority to Use United States Military\nForces in Somalia, 16 Op. O.L.C. 6 (1992) (\xe2\x80\x9cSomalia Opinion\xe2\x80\x9d); Overview of the War Powers\nResolution, 8 Op. O.L.C. 271 (1984); Presidential Power to Use the Armed Forces Abroad Without\nStatutory Authorization, 4A Op. O.L.C. 185 (1980); Memorandum for Hon. Charles W. Colson,\nSpecial Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of\nLegal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries\n(May 22, 1970).\n5\nWe have also previously and consistently opined that Congress may not place conditions on its\nappropriations in such a manner as would interfere with the President\xe2\x80\x99s ability to exercise his\nconstitutional powers over foreign relations and the military as Chief Executive and Commander in\nChief. See, e.g., Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 42 n.3\n(1990). For example, in 1996 this Office concluded that Congress could not forbid the Department of\nDefense from spending appropriated funds on certain activities we had deemed to fall within the\nPresident\xe2\x80\x99s constitutional authority as Commander in Chief. See Placing of United States Armed\nForces Under United Nations Operational or Tactical Control, 20 Op. O.L.C. 182 (1996).\n\n151\n\n227-329 VOL_26_PROOF.pdf 161\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nauthority to conduct U.S. foreign relations. In fact, the establishment of a large\npeacetime military force in the twentieth century has given rise to numerous\nunilateral exercises of military force grounded solely in the President\xe2\x80\x99s constitutional authority. For example, the deployment of U.S. troops in the Korean War by\nPresident Truman was undertaken without congressional authorization. See Bosnia\nOpinion, 19 Op. O.L.C. at 331 n.5. More recently, when President Clinton directed\nthe extensive and sustained 1999 air campaign in the Former Republic of Yugoslavia, he relied solely on his \xe2\x80\x9cconstitutional authority to conduct U.S. foreign\nrelations and as Commander in Chief and Chief Executive.\xe2\x80\x9d Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal\nRepublic of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of Pres. William\nJ. Clinton 459, 460 (Mar. 26, 1999). As we recently explained, \xe2\x80\x9c[t]he role of\npractice\xe2\x80\x9d in determining the proper allocation of authority between the political\nbranches \xe2\x80\x9cis heightened in dealing with issues affecting foreign affairs and\nnational security, where \xe2\x80\x98the Court has been particularly willing to rely on the\npractical statesmanship of the political branches when considering constitutional\nquestions.\xe2\x80\x99\xe2\x80\x9d President\xe2\x80\x99s Authority to Conduct Military Operations, 25 Op. O.L.C.\nat 202 (quoting Whether Uruguay Round Agreements Required Ratification as a\nTreaty, 18 Op. O.L.C. 232, 234 (1994)); see, e.g., Dames & Moore v. Regan, 453\nU.S. 654, 686 (1981); Haig v. Agee, 453 U.S. 280, 292-94 (1981).\nAccordingly, we believe that the President\xe2\x80\x99s constitutional authority to undertake military action to protect the national security interests of the United States is\nfirmly established in the text and structure of the Constitution and in Executive\nBranch practice. Thus, to the extent that the President were to determine that\nmilitary action against Iraq would protect our national interests, he could take such\naction based on his independent constitutional authority; no action by Congress\nwould be necessary. For example, were the President to conclude that Iraq\xe2\x80\x99s\ndevelopment of WMD might endanger our national security because of the risk\nthat such weapons either would be targeted against the United States, or would be\nused to destabilize the region, he could direct the use of military force against Iraq\nto destroy its WMD capability. Or, were it the President\xe2\x80\x99s judgment that a change\nof regime in Iraq would remove a threat to our national interests, he could direct\nthe use of force to achieve that goal. 6 Were the President to take such action, he\nwould be acting consistently with the historical practice of the Executive Branch. 7\n\n6\n\nThese examples are intended to be illustrative and non-exclusive.\nWe should note that there is almost no judicial discussion of the principles we have examined\nhere. As we have recently explained, various procedural obstacles make it unlikely that a court would\nreach the question of the President\xe2\x80\x99s constitutional power to engage the U.S. Armed Forces in military\nhostilities, regardless of whether the suit is brought by a Member of Congress or a private citizen. See\nLetter for Alberto R. Gonzales, Counsel to the President, from John C. Yoo, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel (Sept. 10, 2002); see also Campbell v. Clinton, 203 F.3d 19 (D.C.\nCir.), cert. denied, 531 U.S. 815 (2000) (Kosovo); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir.\n7\n\n152\n\n227-329 VOL_26_PROOF.pdf 162\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nB. Statutory Authority\nAt times throughout our history, the President\xe2\x80\x99s constitutional authority to use\nforce has been buttressed by statute. Such statutory support is not necessary in\nlight of the President\xe2\x80\x99s independent constitutional authority to direct military\naction. See Statement on Signing the Resolution Authorizing the Use of Military\nForce Against Iraq, 1 Pub. Papers of Pres. George Bush 40 (Jan. 14, 1991) (\xe2\x80\x9cmy\nrequest for congressional support did not, and my signing [Public Law 102-1] does\nnot, constitute any change in the long-standing positions of the executive branch\non . . . the President\xe2\x80\x99s constitutional authority to use the Armed Forces to defend\nvital U.S. interests\xe2\x80\x9d); see also Bosnia Opinion, 19 Op. O.L.C. at 335 (\xe2\x80\x9cthe\nPresident has authority, without specific statutory authorization, to introduce\ntroops into hostilities in a substantial range of circumstances\xe2\x80\x9d); Haiti Opinion, 18\nOp. O.L.C. at 175-76 (\xe2\x80\x9cthe President may introduce troops into hostilities or\npotential hostilities without prior authorization by the Congress\xe2\x80\x9d). Nonetheless,\ncongressional support of presidential action removes all doubt of the President\xe2\x80\x99s\npower to act. According to the analysis set forth by Justice Jackson in Youngstown\nSheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring), and later followed and interpreted by the Supreme Court in Dames &\nMoore, the President\xe2\x80\x99s power in such a case would be \xe2\x80\x9cat its maximum.\xe2\x80\x9d See\nPresident\xe2\x80\x99s Authority to Conduct Military Operations, 25 Op. O.L.C. at 210. Were\nthe President to direct military action against Iraq, he would be acting at the apex\nof his power because, as we discuss below, his constitutional authority to use such\nforce is supplemented by congressional authorization.\n1. Public Law 102-1\nOn January 14, 1991, shortly before the United States and allied nations began\nOperation Desert Storm, Congress enacted Public Law 102-1, the Authorization\nfor Use of Military Force Against Iraq Resolution. Section 2(a) authorizes the\nPresident \xe2\x80\x9cto use United States Armed Forces pursuant to United Nations Security\nCouncil Resolution 678 (1990) in order to achieve implementation of Security\nCouncil Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677.\xe2\x80\x9d\n105 Stat. at 3. 8 As explained above, UNSCR 678, in turn, authorizes member\n1973) (Vietnam); Luftig v. McNamara, 373 F.2d 664, 665-66 (D.C. Cir. 1967) (Vietnam); Ange v.\nBush, 752 F. Supp. 509 (D.D.C. 1990) (Persian Gulf War); Crockett v. Reagan, 558 F. Supp. 893\n(D.D.C. 1982) (El Salvador); cf. Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952); Johnson v.\nEisentrager, 339 U.S. 763, 789 (1950). A federal district court recently dismissed sua sponte a suit\nfiled on August 27, 2002 to enjoin the President from engaging in military action against Iraq absent a\ndeclaration of war or other extenuating circumstances on the grounds of lack of standing and the\npolitical question doctrine. See Mahorner v. Bush, 224 F. Supp. 2d 48 (D.D.C. 2002).\n8\nSection 2(b) of Public Law 102-1 conditions the authority granted in section 2(a) on a report to\nCongress by the President certifying that the United States has exhausted all diplomatic and peaceful\n\n153\n\n227-329 VOL_26_PROOF.pdf 163\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nstates \xe2\x80\x9cto use all necessary means to uphold and implement resolution 660 (1990)\nand all subsequent relevant resolutions and to restore international peace and\nsecurity in the area.\xe2\x80\x9d S.C. Res. 678, \xc2\xb6 2. The other resolutions listed in Public Law\n102-1 relate to Iraq\xe2\x80\x99s invasion of Kuwait on August 2, 1990 and are identical to\nthe resolutions \xe2\x80\x9crecall[ed] and reaffirm[ed]\xe2\x80\x9d in UNSCR 678. 9\nBy authorizing the use of U.S. Armed Forces \xe2\x80\x9cpursuant to\xe2\x80\x9d UNSCR 678, Public Law 102-1 sanctions not only the employment of the methods approved in that\nresolution\xe2\x80\x94i.e., \xe2\x80\x9call necessary means\xe2\x80\x9d\xe2\x80\x94but also the two objectives outlined\ntherein\xe2\x80\x94that is, \xe2\x80\x9cto uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the\narea.\xe2\x80\x9d S.C. Res. 678, \xc2\xb6 2. 10 Two of the most important \xe2\x80\x9csubsequent relevant\navenues for obtaining Iraq\xe2\x80\x99s compliance with the relevant UNSCRs and that those efforts have not been\nand would not be successful in obtaining compliance. 105 Stat. at 3-4. President Bush submitted such a\nreport on January 16, 1991. Letter to Congressional Leaders Transmitting a Report Pursuant to the\nResolution Authorizing the Use of Force Against Iraq, 1 Pub. Papers of Pres. George Bush 42 (Jan. 16,\n1991). The 1991 report satisfies the requirement in section 2(b) with respect to all uses of force against\nIraq consistent with Public Law 102-1, and thus additional 2(b) reports were not filed prior to the use of\nforce against Iraq in 1993, 1996 or 1998.\nSection 2(c) explicitly provides that section 2 of Public Law 102-1 constitutes specific statutory\nauthorization within the meaning of the War Powers Resolution. 105 Stat. at 4.\n9\nSee S.C. Res. 660, \xc2\xb6 12 (1990) (demanding that Iraq withdraw all of its forces to their positions\nprior to Iraq\xe2\x80\x99s August 2, 1990 invasion of Kuwait); S.C. Res. 661, \xc2\xb6 3, U.N. Doc. S/RES/661 (Aug. 6,\n1990) (establishing oil embargo and sanctions regime against Iraq and Kuwait); S.C. Res. 662, \xc2\xb6 1,\nU.N. Doc. S/RES/662 (Aug. 9, 1990) (deciding that Iraq\xe2\x80\x99s annexation of Kuwait has no legal validity);\nS.C. Res. 664, \xc2\xb6 1, U.N. Doc. S/RES/664 (Aug. 18, 1990) (demanding that Iraq permit and facilitate the\nimmediate departure from Kuwait of third-party nationals); S.C. Res. 665, U.N. Doc. S/RES/665 (Aug.\n25, 1990) (calling upon allied nations to use necessary measures to enforce embargo established in\nUNSCR 661); S.C. Res. 666, U.N. Doc. S/RES/666 (Sept. 13, 1990) (implementing sanctions regime\nand the humanitarian needs exception); S.C. Res. 667, U.N. Doc. S/RES/667 (Sept. 16, 1990)\n(demanding that Iraq immediately protect safety of diplomatic and consular personnel and premises in\nKuwait); S.C. Res. 669, U.N. Doc. S/RES/669 (Sept. 24, 1990) (relating to Jordan\xe2\x80\x99s request for relief\nfrom effects of implementing oil embargo and sanctions regime); S.C. Res. 670, U.N. Doc. S/RES/670\n(Sept. 25, 1990) (regulating aircraft transporting cargo to Iraq or Kuwait and reaffirming Iraq\xe2\x80\x99s liability\nfor grave breaches of the Geneva Convention Relative to the Protection of Civilian Persons in Time of\nWar); S.C. Res. 674, U.N. Doc. S/RES/674 (Oct. 29, 1990) (condemning Iraqi mistreatment of Kuwaiti\nand third-party nationals and inviting collection of materials to bring charges against Iraq for its\nviolations of international law); S.C. Res. 677, U.N. Doc. S/RES/677 (Nov. 28, 1990) (condemning\nIraqi attempts to destroy demographic composition of Kuwait and Kuwaiti civil records).\n10\nAlthough it might be argued that, due to the cease-fire formally adopted in UNSCR 687, UNSCR\n678\xe2\x80\x99s authorization to use force is no longer in effect, and therefore Public Law 102-1 may not be\nrelied upon as statutory authorization to use force against Iraq, such arguments are not persuasive. First,\nthe Security Council has reaffirmed UNSCR 678 three times, twice in 1991 and again in 1994. See\nsupra note 2; S.C. Res. 686, \xc2\xb6 1, U.N. Doc. S/RES/686 (Mar. 2, 1991) (affirming that UNSCR 678\n\xe2\x80\x9ccontinue[s] to have full force and effect\xe2\x80\x9d). Significantly, the Security Council reaffirmed UNSCR 678\nin UNSCR 687 itself. Second, because the cease-fire is akin to an armistice, which is a suspension of\nhostilities rather than a termination of the state of war, see Ludecke v. Watkins, 335 U.S. 160, 167\n(1948) (\xe2\x80\x9cWar does not cease with a cease-fire order.\xe2\x80\x9d), the cease-fire did not terminate UNSCR 678\xe2\x80\x99s\nauthorization to use force. Instead, general principles of armistice law permit the parties to the ceasefire to resume hostilities under certain conditions, pursuant to the authorization in UNSCR 678. See\n\n154\n\n227-329 VOL_26_PROOF.pdf 164\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nresolutions\xe2\x80\x9d are UNSCR 687, which requires, inter alia, the inspection and\ndestruction of Iraq\xe2\x80\x99s WMD program, and UNSCR 688, which demands that Iraq\nhalt the repression of its civilian population. The second purpose for UNSCR 678,\nthe restoration of peace and security to the Persian Gulf region, depends, at a\nminimum, on the effective implementation of both of these resolutions, although\nUNSCR 678 is not limited to implementing these two resolutions. See, e.g., S.C.\nRes. 687, pmbl. \xc2\xb6 25 (\xe2\x80\x9cbear[ing] in mind [the] objective of restoring international\npeace and security in the area\xe2\x80\x9d); S.C. Res. 688, \xc2\xb6 2 (end to repression would\n\xe2\x80\x9ccontribut[e] to removing the threat to international peace and security in the\nregion\xe2\x80\x9d).\nThe President could, consistent with Public Law 102-1, determine that using\nforce in Iraq was necessary to implement the terms of UNSCR 687 and thereby to\nrestore international peace and security to the region. Under Public Law 102-1, the\nPresident also could authorize force to prevent the repression of Iraqi civilians\ncondemned in UNSCR 688, i.e., repression that threatens international peace and\nsecurity by contributing to cross-border incursions and migration of refugees.\nGiven Saddam Hussein\xe2\x80\x99s history of intransigence and refusal to cooperate with\ninspections of Iraq\xe2\x80\x99s WMD program and his continued repression of Iraqi\ncivilians, the President could determine that a change of regime in Iraq is necessary to implement UNSCR 687 and thereby restore international peace and\nsecurity to the region. Were the President to take any of these actions, he would be\nacting at the zenith of his authority because it would include \xe2\x80\x9call that he possesses\nin his own right plus all that Congress can delegate.\xe2\x80\x9d Youngstown Sheet & Tube,\n343 U.S. at 635 (Jackson, J., concurring) (footnote omitted).\nIt could be argued that Iraq\xe2\x80\x99s expulsion from Kuwait in February 1991 by the\nUnited States and the allied nations fully implemented the UNSCRs listed in\nPublic Law 102-1, and that therefore the authorization in section 2(a) for the use of\nU.S. Armed Forces has expired. Subsequent congressional legislation demonstrates, however, that the authorization in Public Law 102-1 remains in effect.\nFirst, the same Congress that enacted Public Law 102-1 twice expressed its\n\xe2\x80\x9csense\xe2\x80\x9d that Public Law 102-1 continued to authorize the use of force even after\nIraq\xe2\x80\x99s withdrawal from Kuwait. 11 Enacted on December 5, 1991, section 1095 of\n\ninfra Part III.A.4. Third, the objectives set forth in resolution 678 have not yet been achieved; in\nparticular, Iraq has not complied with its cease-fire obligations, and consequently international peace\nand security have not been restored to the region. Finally, unlike some UNSCRs authorizing the use of\nforce, see, e.g., S.C. Res. 1031, U.N. Doc. S/RES/1031 (Dec. 15, 1995) (Bosnia); S.C. Res. 929, U.N.\nDoc. S/RES/929 (June 22, 1994) (Rwanda); S.C. Res. 814, U.N. Doc. S/RES/814 (Mar. 26, 1993)\n(Somalia), UNSCR 678 contains no temporal limit on its authorization.\n11\nAlthough a \xe2\x80\x9csense of the Congress\xe2\x80\x9d resolution is hortatory and does not give the President\nauthority he would not otherwise posses, the views of Congress detailed below are evidence of\nCongress\xe2\x80\x99s understanding of the scope of such authority. Cf. Somalia Opinion, 16 Op. O.L.C. at 13\n& n.6 (\xe2\x80\x9csense of Congress\xe2\x80\x9d that President should, inter alia, \xe2\x80\x9censure\xe2\x80\x9d and \xe2\x80\x9csecure\xe2\x80\x9d the provision of\n\n155\n\n227-329 VOL_26_PROOF.pdf 165\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nthe National Defense Authorization Act for Fiscal Years 1992 and 1993, Pub. L.\nNo. 102-190, 105 Stat. 1290, 1488 (\xe2\x80\x9c1992-1993 Defense Authorization Act\xe2\x80\x9d),\ncontains a congressional finding that Iraq is violating UNSCR 687\xe2\x80\x99s requirements\nrelating to its WMD program and expresses Congress\xe2\x80\x99s sense that \xe2\x80\x9cthe Congress\nsupports the use of all necessary means to achieve the goals of Security Council\nResolution 687 as being consistent with the Authorization for Use of Military\nForce Against Iraq Resolution (Public Law 102-1).\xe2\x80\x9d 12 And section 1096 of the\n1992-1993 Defense Authorization Act expresses the same Congress\xe2\x80\x99s \xe2\x80\x9csense\xe2\x80\x9d that\n\xe2\x80\x9cIraq\xe2\x80\x99s noncompliance with United Nations Security Resolution 688 constitutes a\ncontinuing threat to the peace, security, and stability of the Persian Gulf region . . .\nand [that] the Congress supports the use of all necessary means to achieve the\ngoals of United Nations Security Council Resolution 688,\xe2\x80\x9d which condemns the\nrepression of the Iraqi civilian population, \xe2\x80\x9cconsistent with all relevant United\nNations Security Council Resolutions and . . . Public Law 102-1.\xe2\x80\x9d 105 Stat. at\n1489. Second, in 1999, Congress amended Public Law 102-1 to extend the\nreporting requirements from every 60 days to every 90 days, thereby indicating\nthat the law continues in effect. See Consolidated Appropriations Act, 2000, Pub.\nL. No. 106-113, div. B, \xc2\xa7 1000(a)(7), 113 Stat. 1501, 1536 (1999).\nIn addition, Executive Branch practice confirms that Public Law 102-1 continues to be in effect and to provide statutory authority for the President to implement\napplicable Security Council Resolutions, including UNSCRs 678, 687, and 688.\nConsistent with the reporting requirement in section 3 of Public Law 102-1,\nPresident Bush and his two predecessors have written to Congress at regular\nintervals to report on the status of efforts to secure Iraqi compliance with the\napplicable Security Council resolutions. 13 This practice has gone unchallenged by\nCongress.\n\nemergency humanitarian assistance in Somalia demonstrates that Congress recognized the President\xe2\x80\x99s\nauthority to use military force to accomplish that purpose).\n12\nSection 1095(b) also expresses the sense of Congress that:\n(1) Iraq\xe2\x80\x99s noncompliance with United Nations Security Council Resolution 687 constitutes a continuing threat to the peace, security, and stability of the Persian Gulf\nregion; [and]\n(2) the President should consult closely with the partners of the United States in the\nDesert Storm coalition and with the members of the United Nations Security Council\nin order to present a united front of opposition to Iraq\xe2\x80\x99s continuing noncompliance\nwith Security Council Resolution 687.\nId.\n13\nSee, e.g., Letter to Congressional Leaders Transmitting a Report on Iraq\xe2\x80\x99s Compliance with\nUnited Nations Security Council Resolutions, 1 Pub. Papers of Pres. George W. Bush 110 (Jan. 23,\n2002); Letter to Congressional Leaders Transmitting a Report on Iraq\xe2\x80\x99s Compliance with United\nNations Security Council Resolutions, 37 Weekly Comp. Pres. Doc. 1463 (Oct. 11, 2001); Letter to\nCongressional Leaders Transmitting a Report on Iraq\xe2\x80\x99s Compliance with United Nations Security\nCouncil Resolutions, 2 Pub. Papers of Pres. William J. Clinton 1678 (Oct. 1, 1999); Letter to\n\n156\n\n227-329 VOL_26_PROOF.pdf 166\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nEven more significantly, President George H.W. Bush and President Clinton\nauthorized the use of force on several occasions under Public Law 102-1 after the\nsuccessful completion of Operation Desert Storm. For example, in 1998, President\nClinton directed missile and aircraft strikes against Iraq \xe2\x80\x9cunder\xe2\x80\x9d Public Law\n102-1. Letter to Congressional Leaders on the Military Strikes Against Iraq, 2 Pub.\nPapers of Pres. William J. Clinton 2195, 2196 (Dec. 18, 1998). Two years earlier,\nin September 1996, President Clinton reported to Congress that he had ordered\nU.S. cruise missile strikes \xe2\x80\x9cconsonant with\xe2\x80\x9d Public Law 102-1 and section 1096 of\nthe 1992-1993 Defense Authorization Act. Gingrich Letter at 1. President Bush\nalso reported to Congress that he had ordered the 1992 participation of the United\nStates in the enforcement of the southern no-fly zone in Iraq \xe2\x80\x9cconsistent with\xe2\x80\x9d\nPublic Law 102-1. Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security Council Resolutions, 2 Pub. Papers of Pres.\nGeorge Bush 1574, 1575 (Sept. 16, 1992). Congress has acquiesced in each of\nthese uses of force. 14\nIn sum, both legislation passed by Congress and the consistent practice of the\nExecutive Branch indicate that the authorization to use force in Public Law 102-1\nhas survived the cease-fire with Iraq. Although congressional authorization is not\nconstitutionally required before the President may direct military action against\nIraq in response to threats to the national security and foreign policy of the United\n\nCongressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security Council\nResolutions, 1 Pub. Papers of Pres. William J. Clinton 1046 (June 6, 1994); Letter to Congressional\nLeaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security Council Resolutions, 2 Pub.\nPapers of Pres. George Bush 1478 (Nov. 15, 1991); Letter to Congressional Leaders Reporting on\nIraq\xe2\x80\x99s Compliance with United Nations Security Council Resolutions, 2 Pub. Papers of Pres. George\nBush 1164 (Sept. 16, 1991); Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with\nUnited Nations Security Council Resolutions, 2 Pub. Papers of Pres. George Bush 896 (July 16, 1991).\n14\nIn May 1998, Congress expressed its \xe2\x80\x9csense\xe2\x80\x9d that none of the funds provided by the 1998\nSupplemental Appropriations and Rescissions Act\nmay be made available for the conduct of offensive operations by United States\nArmed Forces against Iraq for the purpose of obtaining compliance by Iraq with United Nations Security Council Resolutions relating to inspection and destruction of\nweapons of mass destruction in Iraq unless such operations are specifically authorized\nby a law enacted after the date of enactment of this Act.\n1998 Supplemental Appropriations and Rescissions Act, Pub. L. No. 105-174, \xc2\xa7 17, 112 Stat. 58, 66.\nThis is only a \xe2\x80\x9csense\xe2\x80\x9d of Congress that is not binding. See Boos v. Barry, 485 U.S. 312, 327-28 (1988);\nLyng v. N.W. Indian Cemetery Protective Ass\xe2\x80\x99n, 485 U.S. 439, 455 (1988); see also Carriage of\nAgricultural Products in United States Vessels Where Exportation Is Financed by Government, 37 Op.\nAtt\xe2\x80\x99y Gen. 546, 548 (1934) (\xe2\x80\x9cIn view of the fact, however, that the word \xe2\x80\x98sense\xe2\x80\x99 [as used in the term\n\xe2\x80\x98sense of Congress\xe2\x80\x99] is so well understood to mean \xe2\x80\x98opinion\xe2\x80\x99 and since the Congress has used the word\nin the Resolution, I am unwilling to believe that it intended to make the Resolution mandatory.\xe2\x80\x9d). A\nfew months later, the same Congress enacted a Joint Resolution \xe2\x80\x9curg[ing]\xe2\x80\x9d President Clinton \xe2\x80\x9cto take\nappropriate action, in accordance with the Constitution and relevant laws of the United States, to bring\nIraq into compliance\xe2\x80\x9d with its obligations under various U.N. Security Council Resolutions relating to\nIraq\xe2\x80\x99s WMD program. Pub. L. No. 105-235, 112 Stat. at 1541.\n\n157\n\n227-329 VOL_26_PROOF.pdf 167\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nStates, the President would be acting with the support of Congress were he to\ndirect such action pursuant to Public Law 102-1.\n2. Public Law 105-235\nPublic Law 105-235, a Joint Resolution finding that Iraq \xe2\x80\x9cis in material and\nunacceptable breach of its international obligations,\xe2\x80\x9d and \xe2\x80\x9curg[ing]\xe2\x80\x9d President\nClinton \xe2\x80\x9cto take appropriate action, in accordance with the Constitution and\nrelevant laws of the United States, to bring Iraq into compliance,\xe2\x80\x9d also arguably\nexpresses Congress\xe2\x80\x99s support for the President to direct military action against\nIraq. 112 Stat. 1538, 1541 (1998). The resolution contains multiple \xe2\x80\x9cwhereas\xe2\x80\x9d\nclauses detailing almost two dozen Security Council findings of Iraqi violations of\nits WMD obligations and concluding that \xe2\x80\x9cIraq\xe2\x80\x99s continuing weapons of mass\ndestruction programs threaten vital United States interests and international peace\nand security.\xe2\x80\x9d Id. at 1540. Although the Joint Resolution does not specifically\nauthorize the use of force, and cautions that any action taken must comply with the\nConstitution and relevant laws, insofar as the President determines that directing\nmilitary action against Iraq is \xe2\x80\x9cappropriate . . . to bring Iraq into compliance with\nits international obligations,\xe2\x80\x9d and consistent with the Constitution and relevant\nU.S. law, Congress has expressed its support for such action. Id. at 1541. In\naddition, subsequent legislation passed by the same Congress that enacted Public\nLaw 105-235 reflects at least implicit support for military action. In the Iraq\nLiberation Act, Congress noted with approval Public Law 105-235\xe2\x80\x99s recommendation that the President take appropriate action. See Iraq Liberation Act of 1998,\nPub. L. No. 105-338, 112 Stat. 3178. Significantly, the Iraq Liberation Act was\npassed shortly after President Clinton submitted his September 1998 report under\nPublic Law 102-1, which made clear that military options were \xe2\x80\x9con the table\xe2\x80\x9d if\nIraq did not resume cooperation with the U.N. inspection regime. See Letter to\nCongressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations\nSecurity Council Resolutions, 2 Pub. Papers of Pres. William J. Clinton 1519,\n1520 (Sept. 3, 1998). Read in this context, Public Law 105-235 grants at least\nimplicit congressional authorization for the President to use force. 15\n\n15\nWith respect to using force to facilitate a change of regime in Iraq, we note that in the Iraq\nLiberation Act Congress expressed its view that \xe2\x80\x9c[i]t should be the policy of the United States to\nsupport efforts to remove the regime headed by Saddam Hussein . . . in Iraq.\xe2\x80\x9d Pub. L. No. 105-338, \xc2\xa7 3,\n112 Stat. at 3179. While the Act focuses on the provision of humanitarian, military, and broadcast\nassistance to Iraqi opposition forces, rather than direct military action by U.S. Armed Forces, it reflects\ncongressional support for a change of regime in Iraq.\nCongressional support for the use of force against Iraq is also reflected in House Resolution 322,\n105th Cong. (1997) (enacted). Passed against the backdrop of continued Iraqi interference with U.N.\ninspections of its WMD programs, that resolution expressed the sense of the House of Representatives\nthat the United States should, if necessary, take military action to compel Iraqi compliance with\nUNSCRs. Id. House Resolution 322 recommended that, if diplomatic efforts proved unsuccessful, any\n\n158\n\n227-329 VOL_26_PROOF.pdf 168\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\n3. Public Law 107-40\nPublic Law 102-1 and Public Law 105-235 are not the only potential sources of\ncongressional support for a decision by the President to use force against Iraq;\nthere could be situations in which military action against Iraq would be statutorily\nauthorized pursuant to Public Law 107-40, the \xe2\x80\x9cAuthorization for Use of Military\nForce\xe2\x80\x9d that was enacted shortly after the terrorist attacks of September 11, 2001.\nPublic Law 107-40 authorizes the President to use \xe2\x80\x9call necessary and appropriate\nforce\xe2\x80\x9d against those nations, organizations or persons whom he determines\n\xe2\x80\x9cplanned, authorized, committed, or aided the [September 11th] terrorist\nattacks . . . or harbored such organizations or persons, in order to prevent any\nfuture acts of international terrorism against the United States by such nations,\norganizations or persons.\xe2\x80\x9d 115 Stat. at 224. Were the President to determine that\nIraq provided assistance to the perpetrators of the September 11th attacks, this\nauthorization would apply to the use of military force against Iraq. 16\nC. The War Powers Resolution\nUnder the 1973 War Powers Resolution, 50 U.S.C. \xc2\xa7\xc2\xa7 1541-1548 (1994)\n(\xe2\x80\x9cWPR\xe2\x80\x9d), whenever U.S. Armed Forces are deployed for combat, the President\nshall submit a written report to Congress within forty-eight hours. 50 U.S.C.\n\xc2\xa7 1543(a). Under section 5(b), the President shall terminate any continuous and\nsustained use of U.S. Armed Forces within sixty days unless Congress has\ndeclared war, enacted a specific authorization for such use of U.S. Armed Forces,\nor extended the sixty-day period or unless Congress cannot meet because of an\narmed attack on the United States. Id. \xc2\xa7 1544(b). To the extent that Public Law\n102-1 or Public Law 107-40 authorizes the actions being contemplated by the\nPresident, those resolutions explicitly state that they satisfy the requirements of\nsection 5(b). Insofar as any of the military options being contemplated fall outside\nthe scope of the authorizations in Public Law 102-1 and Public Law 107-40, and\ninstead would be conducted solely on the basis of the President\xe2\x80\x99s independent\nconstitutional authority, significant constitutional issues regarding the sixty-day\nclock would be raised.\n\xe2\x80\x9c[E]very President has taken the position that [the WPR] is an unconstitutional\ninfringement by the Congress on the President\xe2\x80\x99s authority as Commander-inChief.\xe2\x80\x9d Richard F. Grimmet, Cong. Research Serv., IB81050, War Powers\nResolution: Presidential Compliance 2 (updated Sept. 10, 2002); see also\nOverview of the War Powers Resolution, 8 Op. O.L.C. 271, 281-83 (1984) (listing\nmilitary action be undertaken with \xe2\x80\x9cthe broadest feasible multinational support,\xe2\x80\x9d but recognized that, if\nnecessary, the United States should take unilateral military action. Id.\n16\nSection 2(b)(1) explicitly provides that section 2 of Public Law 107-40 constitutes specific\nstatutory authorization within the meaning of the War Powers Resolution. 115 Stat. at 224.\n\n159\n\n227-329 VOL_26_PROOF.pdf 169\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nexamples of President\xe2\x80\x99s introduction of U.S. Armed Forces into actual or imminent hostilities or hostile territory, without complying with the WPR\xe2\x80\x99s reporting\nrequirements, that took place during the Nixon, Ford, Carter, and Reagan Administrations). Indeed, the War Powers Resolution was enacted over a presidential\nveto based on constitutional objections as well as foreign policy concerns. See\nVeto of the War Powers Resolution, Pub. Papers of Pres. Richard Nixon 893 (Oct.\n24, 1973). As President Nixon explained in justifying his veto:\nthe restrictions which this resolution would impose upon the authority of the President are both unconstitutional and dangerous to the\nbest interests of our Nation. . . . [The resolution] would attempt to\ntake away, by a mere legislative act, authorities which the President\nhas properly exercised under the Constitution for almost 200\nyears. . . . The only way in which the constitutional powers of a\nbranch of the Government can be altered is by amending the Constitution\xe2\x80\x94and any attempt to make such alterations by legislation alone\nis clearly without force.\nId.; see also Statement on Signing the Resolution Authorizing the Use of Military\nForce Against Iraq, 1 Pub. Papers of Pres. George Bush 40 (Jan. 14, 1991)\n(preserving \xe2\x80\x9clong-standing positions of the executive branch on . . . the constitutionality of the War Powers Resolution\xe2\x80\x9d). 17\nThis Office has never formally opined on the constitutionality of the WPR; we\nhave, however, questioned the WPR\xe2\x80\x99s constitutionality on numerous occasions.\nSee, e.g., Overview of the War Powers Resolution, 8 Op. O.L.C. at 274 (\xe2\x80\x9cThe\nExecutive Branch has taken the position from the very beginning that \xc2\xa7 2(c) of the\nWPR does not constitute a legally binding definition of Presidential authority to\ndeploy our armed forces.\xe2\x80\x9d); Executive Power with Regard to the Libyan Situation,\n5 Op. O.L.C. 432, 441 (1981) (\xe2\x80\x9cWe do not believe . . . that the purpose and policy\nstatement should be construed to constrain the exercise of the President\xe2\x80\x99s constitutional power.\xe2\x80\x9d); cf. Presidential Power to Use the Armed Forces Abroad Without\nStatutory Authorization, 4A Op. O.L.C. 185, 195 (1980) (\xe2\x80\x9cthere may be applications [of the reporting or consultation requirements of WPR] which raise constitutional questions\xe2\x80\x9d); Supplementary Discussion of the President\xe2\x80\x99s Powers Relating\nto the Seizure of the American Embassy in Iran, 4A Op. O.L.C. 123, 128 (1979)\n(same); Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. 115,\n\n17\nOn one occasion, President Carter did state that WPR\xe2\x80\x99s imposition of a sixty-day limitation on\nmilitary operations absent congressional authorization was constitutional. \xe2\x80\x9cAsk President Carter\xe2\x80\x9d:\nRemarks During a Telephone Call-in Program on the CBS Radio Network, 1 Pub. Papers of Pres.\nJimmy Carter 291, 324 (Mar. 5, 1977) (noting that WPR sixty-day rule was an \xe2\x80\x9cappropriate reduction\xe2\x80\x9d\nin the President\xe2\x80\x99s power). President Carter may have relied on OLC advice for his statement. See infra\nnote 18.\n\n160\n\n227-329 VOL_26_PROOF.pdf 170\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\n121 (1979) (\xe2\x80\x9cThe Resolution includes in its statement of purposes and policy a list\nof situations in which the President is authorized to introduce the armed forces into\nhostilities or situations of imminent hostility. . . . However, we do not consider that\nthe purpose and policy statement should be construed to constrain the exercise of\nthe President\xe2\x80\x99s constitutional power in this instance.\xe2\x80\x9d) (citation omitted). 18 Most\nrecently, this Office has stated that \xe2\x80\x9caction taken by the President pursuant to the\nconstitutional authority recognized in [section] 2(c)(3) cannot be subject to the\nsubstantive requirements of the WPR.\xe2\x80\x9d President\xe2\x80\x99s Authority to Conduct Military\nOperations, 25 Op. O.L.C. at 211. 19\nFinally, we note that the WPR has been controversial ever since its enactment\nin 1973 and has been the subject of litigation when Presidents have used military\nforce, allegedly in violation of the WPR. See, e.g., Campbell v. Clinton, 203 F.3d\n19 (D.C. Cir. 2000); Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990); Sanchez\nEspinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), aff\xe2\x80\x99d, 770 F.2d 202 (D.C.\nCir. 1985); Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff\xe2\x80\x99d, 720 F.2d\n1355 (D.C. Cir. 1983). To date, no court that we are aware of has ever reached a\njudgment on the merits; cases have been dismissed on the basis of a variety of\nprocedural defects, including lack of standing, lack of ripeness, and the political\nquestion doctrine. See Grimmet, IB81050, War Powers Resolution at 2 (\xe2\x80\x9cThe\ncourts have not directly addressed [whether WPR is an unconstitutional infringement by the Congress on the President\xe2\x80\x99s authority as Commander in Chief].\xe2\x80\x9d). If\nthe President were to take military action without complying with the WPR, it is\nlikely that litigation would be brought. We think it is unlikely, however, that a\ncourt would rule on the merits of the WPR.\n\n18\nAlthough this Office has long questioned the constitutionality of the WPR, we have not done so\nconsistently. Compare Presidential Power to Use the Armed Forces Abroad, 4A Op. O.L.C. at 196\n(\xe2\x80\x9cWe believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of\nour armed forces as required by the provisions of \xc2\xa7 1544(b) of the Resolution. The Resolution gives the\nPresident the flexibility to extend that deadline for up to 30 days in cases of \xe2\x80\x98unavoidable military\nnecessity.\xe2\x80\x99 This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve\nhis constitutional function as Commander-in-Chief. The practical effect of the 60-day limit is to shift\nthe burden to the President to convince the Congress of the continuing need for the use of our armed\nforces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon\nhis executive powers.\xe2\x80\x9d), with Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327,\n327-28 n.1 (2000) (\xe2\x80\x9cPrevious Administrations have expressed different views concerning the\nconstitutionality of the WPR. . . . In light of our conclusion that Congress lawfully authorized\ncontinued hostilities beyond the 60-day statutory limit, we have no occasion to consider any\nconstitutional arguments that might be made.\xe2\x80\x9d) (citations omitted).\n19\nSection 2(c)(3) of the WPR acknowledges the President\xe2\x80\x99s pre-existing constitutional authority to\nuse force in self-defense, defined in the provision as a response to \xe2\x80\x9ca national emergency\xe2\x80\x9d arising out\nof an \xe2\x80\x9cattack upon the United States.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1541(c). We would not, however, read section\n2(c)(3) as limiting the President\xe2\x80\x99s right to direct the use of force in self-defense to cases of an actual\narmed attack because that reading would limit the President\xe2\x80\x99s authority to use force in anticipatory selfdefense. See infra Part III.B.\n\n161\n\n227-329 VOL_26_PROOF.pdf 171\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nIII. Authority Under International Law to Use Force Against Iraq\nThe United Nations Charter (\xe2\x80\x9cU.N. Charter\xe2\x80\x9d) requires member states to refrain\nfrom the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the\nUnited Nations. U.N. Charter art. 2, \xc2\xb6 4. Nonetheless, the Security Council may\nact under chapter VII of the Charter to authorize member states to use such force\n\xe2\x80\x9cas may be necessary to maintain or restore international peace and security.\xe2\x80\x9d Id.\nart. 42. In addition, article 51 of the U.N. Charter recognizes the \xe2\x80\x9cinherent right of\nindividual or collective self-defense.\xe2\x80\x9d Authority under international law for the use\nof force against Iraq stems from two different sources\xe2\x80\x94Security Council authorization in the form of UNSCR 678, which authorizes the use of \xe2\x80\x9call necessary\nmeans\xe2\x80\x9d to implement various UNSCRs relating to Iraq and to restore international\npeace and security, id. \xc2\xb6 2, and the inherent right of self-defense, recognized in\narticle 51. 20 We will discuss each in turn.\nA. U.N. Security Council Authorization\nOn November 29, 1990, the Security Council, acting under chapter VII of the\nU.N. Charter, adopted UNSCR 678, which authorizes member states \xe2\x80\x9cto use all\nnecessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the\narea.\xe2\x80\x9d Id. \xc2\xb6 2. Two such relevant resolutions are: (1) UNSCR 687, which established the conditions for a formal cease-fire suspending hostilities in the Persian\nGulf; 21 and (2) UNSCR 688, which demanded that Iraq cease its repression of its\ncivilian population because the consequences of that repression threatened\ninternational peace and security in the region. Fundamental to the restoration of\ninternational peace and security to the region is Iraq\xe2\x80\x99s compliance with the terms\nof both UNSCR 687, particularly its requirements that Iraq permanently dismantle\nits WMD program and permit U.N. inspections for verification purposes, and\nUNSCR 688. If UNSCR 678 is read together with UNSCRs 687 and 688, the\nSecurity Council has authorized the use of force against Iraq to uphold and\nimplement the conditions of the cease-fire and to encourage Iraq to cease repres20\nWhile some in the international community might endorse the use of force against Iraq under the\ndoctrine of humanitarian intervention, given Iraq\xe2\x80\x99s abhorrent treatment of its Kurdish population, the\nUnited States does not accept that doctrine as justifying the use of force, and there is significant doubt\nthat it has achieved the status of a norm of customary international law. See Ralph Zacklin, Comment,\nBeyond Kosovo: The United Nations and Humanitarian Intervention, 41 Va. J. Int\xe2\x80\x99l L. 923, 934-36\n(2001); Jonathan I. Charney, Commentary, Anticipatory Humanitarian Intervention in Kosovo, 32\nVand. J. Transnat\xe2\x80\x99l L. 1231, 1239-41 (1999).\n21\nOn April 6, 1991, Iraq responded to the conditions in UNSCR 687 in a letter to the Security\nCouncil stating that Iraq had \xe2\x80\x9cno choice but to accept this resolution.\xe2\x80\x9d U.N. Doc. S/22456 (Apr. 6,\n1991).\n\n162\n\n227-329 VOL_26_PROOF.pdf 172\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nsion that threatens international peace and security in the region by, for example,\ncontributing to refugee migration and cross-border incursions. To determine\nwhether the existence of the cease-fire would prevent such a use of force, we turn\nto a consideration of the conditions under which the cease-fire may be suspended.\n1. The Cease-Fire, Material Breach, and Treaty Law\nNo clearly established rule of international law exists regarding the appropriate\ncircumstances in which a cease-fire established by a U.N. Security Council\nresolution may be suspended. 22 To discern an applicable standard, we look for\nguidance to general principles of treaty law.\nUNSCR 687 explicitly establishes \xe2\x80\x9ca formal cease-fire . . . between Iraq and\nKuwait and the [U.N.] Member States cooperating with Kuwait in accordance with\nresolution 678 (1990).\xe2\x80\x9d S.C. Res. 687, \xc2\xb6 33. UNSCR 687 is not a multilateral\ntreaty, but for our purposes it may be useful to analogize it to such a treaty, as\ndefined by the Vienna Convention on the Law of Treaties art. 60(2)(b), May 23,\n1969, 1155 U.N.T.S. 331, 346 (\xe2\x80\x9cVienna Convention\xe2\x80\x9d). Under the Vienna Convention, a \xe2\x80\x9ctreaty\xe2\x80\x9d is a written international agreement between States that is governed\nby international law. Id. art. 2(1)(a). The State parties to the cease-fire agreement\nare Iraq, Kuwait, the United States, and the other members of the coalition in the\nPersian Gulf War. Cf. Ruth Wedgwood, Editorial Comment, The Enforcement of\nSecurity Council Resolution 687: The Threat of Force Against Iraq\xe2\x80\x99s Weapons of\nMass Destruction, 92 Am. J. Int\xe2\x80\x99l L. 724, 726 (1998) (pointing out that the original\ncease-fire on the ground was a decision of the individual members of the coalition,\nnot the Security Council as a whole). Even if some of the State-parties to the\ncease-fire did not specifically agree to its terms because they were not members of\nthe Security Council when Resolution 687 was adopted, the resolution is binding\non them as members of the United Nations. See U.N. Charter art. 25 (\xe2\x80\x9cThe\nMembers of the United Nations agree to accept and carry out the decisions of the\nSecurity Council in accordance with the present Charter.\xe2\x80\x9d); Paris v. (1) Department of Nat\xe2\x80\x99l Store Branch 1 (Vietnam), No. 99 Civ. 8607 (NRB), 2000 WL\n777904, at *5 (S.D.N.Y. June 15, 2000) (under article 25, \xe2\x80\x9call members of the\nUnited Nations are obliged to accept and carry out . . . decisions of the Security\n22\nUNSCR 687 appears to be unprecedented in terms of the precision with which the Security\nCouncil established the parameters of the cease-fire. Cf. S.C. Res. 1199, U.N. Doc. S/RES/1199\n(Sept. 23, 1998) (demanding that all parties in Kosovo immediately cease hostilities); S.C. Res. 338,\nU.N. Doc. S/RES/338 (Oct. 22, 1973) (calling upon all parties to the fighting in the Middle East to\ncease all firing and terminate all military activity immediately); S.C. Res. 27, U.N. Doc. S/RES/27\n(Aug. 1, 1947) (calling on armed forces of the Netherlands and Indonesia to cease hostilities). The\ndetailed conditions for the armistice suspending the hostilities in Korea, for example, are contained in\nan international agreement between the United Nations (represented by U.S. General Mark Clark, the\nCommander in Chief of the U.N. Command) and North Korea. See Military Armistice in Korea and\nTemporary Supplementary Agreement, July 27, 1953, 4 U.S.T. 234.\n\n163\n\n227-329 VOL_26_PROOF.pdf 173\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nCouncil\xe2\x80\x9d acting under chapter VII); Memorandum for the President from John M.\nHarmon, Assistant Attorney General, Office of Legal Counsel, Re: Proposed\nExecutive Order Entitled \xe2\x80\x9cTransactions Involving Southern Rhodesia\xe2\x80\x9d at 2\n(Dec. 13, 1977) (\xe2\x80\x9cRhodesia Executive Order\xe2\x80\x9d) (United States is obligated under\ninternational law to implement a UNSCR adopted under chapter VII); see also\nCase Concerning Questions of Interpretation and Application of the 1971\nMontreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab\nJamahiriya v. U.S.), 1992 I.C.J. 114, 126, \xc2\xb6 42 (Apr. 14); Legal Consequences for\nStates of the Continued Presence of South Africa in Namibia (South West Africa)\nNotwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971\nI.C.J. 16, 53, \xc2\xb6 115 (June 21) (\xe2\x80\x9cSouth Africa Advisory Opinion\xe2\x80\x9d). 23\nIn the multilateral context, it is well established that a material breach of a\ntreaty by one of the parties entitles a party \xe2\x80\x9cspecially affected\xe2\x80\x9d by the breach to\ninvoke it as a ground for suspending the operation of the treaty in whole or in part\nvis-\xc3\xa0-vis the defaulting state. Vienna Convention art. 60(2)(b); 24 see also Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes\nII, General Counsel, Department of Defense, from Jay S. Bybee, Assistant\nAttorney General, Office of Legal Counsel, Re: Application of Treaties and Laws\nto al Qaeda and Taliban Detainees at 23 (Jan. 22, 2002); Letter for John Bellinger,\nIII, Senior Associate Counsel to the President and Legal Adviser to the National\nSecurity Council, from John C. Yoo, Deputy Assistant Attorney General, Office of\nLegal Counsel at 4 n.4 (Nov. 15, 2001); International Load Line Convention, 40\nOp. Att\xe2\x80\x99y Gen. 119, 124 (1941); 1 Restatement (Third) of the Foreign Relations\nLaw of the United States \xc2\xa7 335(2)(b) (1987). Even if the United States were not\n\xe2\x80\x9cspecially affected\xe2\x80\x9d by Iraq\xe2\x80\x99s noncompliance with UNSCR 687, however, a\nmaterial breach of a multilateral treaty also permits any non-defaulting party to\ncite the breach as a ground for complete or partial suspension with respect to itself\n\xe2\x80\x9cif the treaty is of such a character that a material breach of its provisions by one\nparty radically changes the position of every party with respect to the further\nperformance of its obligations under the treaty.\xe2\x80\x9d Vienna Convention art. 60(2)(c);\nsee 1 Restatement (Third) of the Foreign Relations Law of the United States\n\xc2\xa7 335(2)(c) (1987). According to the Vienna Convention, a \xe2\x80\x9cmaterial breach\xe2\x80\x9d\nincludes \xe2\x80\x9cthe violation of a provision essential to the accomplishment of the object\n\n23\nWe express no opinion here regarding whether suspending a Security Council resolution generally would be an appropriate remedy for its breach.\n24\nAlthough not ratified by the United States, this convention \xe2\x80\x9cis frequently cited . . . as a statement\nof customary international law.\xe2\x80\x9d Review of Domestic and International Legal Implications of\nImplementing the Agreement with Iran, 4A Op. O.L.C. 314, 321 (1981). Several lower courts have\ntreated the convention as an authoritative codification of the customary international law of treaties.\nSee, e.g., Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 308-09 (2d Cir. 2000), cert. denied, 533\nU.S. 928 (2001); Aquamar v. Del Monte Fresh Produce, Inc., 179 F.3d 1279, 1296 n.40 (11th Cir.\n1999); Kreimerman v. Casa Veerkamp, 22 F.3d 634, 638 n.9 (5th Cir. 1994).\n\n164\n\n227-329 VOL_26_PROOF.pdf 174\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nor purpose of the treaty.\xe2\x80\x9d Vienna Convention, art. 60(3)(b); 25 see also Black\xe2\x80\x99s Law\nDictionary 183 (7th ed. 1999) (defining \xe2\x80\x9cmaterial breach\xe2\x80\x9d as \xe2\x80\x9c[a] substantial\nbreach of contract, usu[ally] excusing the aggrieved party from further performance\xe2\x80\x9d).\nRegardless of whether a material breach must amount to non-compliance that\n\xe2\x80\x9cspecially affects\xe2\x80\x9d the United States or that effects a \xe2\x80\x9cradical change\xe2\x80\x9d in circumstances, it seems clear that Iraq has sufficiently violated the cease-fire to meet\neither standard. Iraq\xe2\x80\x99s repeated refusals to comply with the international on-site\ninspections of its WMD program mandated by UNSCR 687 qualify as a material\nbreach because they violate core provisions of the resolution. See, e.g., S.C. Res.\n687, \xc2\xb6 9 (Iraq shall \xe2\x80\x9cagree to urgent, on-site inspection\xe2\x80\x9d of its biological, chemical\nand missile capabilities); id. \xc2\xb6 12 (Iraq shall accept \xe2\x80\x9curgent on-site inspection\xe2\x80\x9d of\nits nuclear materials and facilities). Iraq\xe2\x80\x99s continuing efforts to prevent the U.N.\nfrom inspecting potential WMD sites directly interferes with U.N. Security\nCouncil efforts to restore international peace and security in the region. Immediately after the ceasefire, for example, Iraq refused to cooperate with UNSCOM\nand the IAEA. On August 15, 1991, little more than three months after the\nadoption of UNSCR 687, the Security Council \xe2\x80\x9ccondemn[ed]\xe2\x80\x9d Iraq\xe2\x80\x99s \xe2\x80\x9cserious\nviolation\xe2\x80\x9d of a number of its obligations regarding the destruction and dismantlement of its WMD program and of its agreement to cooperate with UNSCOM and\nthe IAEA, and stated that the violation \xe2\x80\x9cconstitutes a material breach of the\nrelevant provisions of [UNSCR 687] which established a cease-fire and provided\nthe conditions essential to the restoration of peace and security in the region.\xe2\x80\x9d S.C.\nRes. 707, \xc2\xb6 1. Over the next two years, the President of the Security Council issued\nsix different statements reiterating that Iraq\xe2\x80\x99s refusal to cooperate with UNSCOM\nand the IAEA qualified as material breaches of UNSCR 687. 26\n25\nThe International Law Commission of the United Nations explained its choice of the term \xe2\x80\x9cmaterial\xe2\x80\x9d rather than the term \xe2\x80\x9cfundamental\xe2\x80\x9d:\n\nThe word \xe2\x80\x9cfundamental\xe2\x80\x9d might be understood as meaning that only the violation of a\nprovision directly touching the central purposes of the treaty can ever justify the other\nparty in terminating the treaty. But other provisions considered by a party to be essential to the effective execution of the treaty may have been very material in inducing it\nto enter into the treaty at all, even although these provisions may be of an ancillary\ncharacter.\nReport of the Commission to the General Assembly, [1963] 2 Y.B. Int\xe2\x80\x99l L. Comm\xe2\x80\x99n 187, 206, U.N.\nDoc. A/CN.4/SER.A./1963/ADD.1.\n26\nSee U.N. Doc. S/25970 (June 18, 1993) (\xe2\x80\x9cwarn[ing] the Government of Iraq of the serious\nconsequences of material breaches of resolution 687\xe2\x80\x9d); U.N. Doc. S/25091 (Jan. 11, 1993) (Iraq\xe2\x80\x99s\nprohibition on UNSCOM using its own aircraft to transport its personnel to Iraq constitutes \xe2\x80\x9cfurther\nmaterial breach\xe2\x80\x9d of UNSCR 687); U.N. Doc. S/25081 (Jan. 8, 1993) (Iraq\xe2\x80\x99s prohibition on UNSCOM\nusing its own aircraft throughout Iraq is an \xe2\x80\x9cunacceptable and material breach\xe2\x80\x9d of UNSCR 687); U.N.\nDoc. S/24240 (July 6, 1992) (Iraq\xe2\x80\x99s refusal to allow UNSCOM to enter certain premises constitutes a\n\xe2\x80\x9cmaterial and unacceptable breach by Iraq of a provision of resolution 687\xe2\x80\x9d); U.N. Doc. S/23663 (Feb.\n28, 1992) (Iraq\xe2\x80\x99s refusal to commence destruction of ballistic-missile related equipment is a \xe2\x80\x9cfurther\n\n165\n\n227-329 VOL_26_PROOF.pdf 175\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nFurther, in the years preceding the December 1998 missile strikes, Iraq continued to violate the WMD-related requirements in UNSCR 687. The Security\nCouncil adopted several resolutions condemning Iraq\xe2\x80\x99s noncompliance as \xe2\x80\x9cclear,\xe2\x80\x9d\n\xe2\x80\x9cdeeply disturbing,\xe2\x80\x9d \xe2\x80\x9cunacceptable,\xe2\x80\x9d \xe2\x80\x9cflagrant\xe2\x80\x9d and \xe2\x80\x9ca threat to international peace\nand security.\xe2\x80\x9d 27 Although these denunciations by the Security Council do not use\nthe particular phrase \xe2\x80\x9cmaterial breach,\xe2\x80\x9d the conduct criticized fits within the\nVienna Convention\xe2\x80\x99s definition of that phrase: it violates conditions of the ceasefire that are essential to its purpose. Moreover, over the past few years, the absence\nof military force to compel Iraq\xe2\x80\x99s compliance with the terms of the cease-fire\nseems only to have increased its material breach. Since the 1998 airstrikes, Iraq\nhas continued its flagrant violation of the terms of the cease-fire by refusing to\npermit any U.N. inspections of its WMD program. See S.C. Res. 1284 (noting\nIraq\xe2\x80\x99s failure to implement fully UNSCR 687 and other relevant resolutions).\nIn sum, Iraq\xe2\x80\x99s repeated interference with international inspections of its WMD\nprogram qualifies as a \xe2\x80\x9cmaterial breach\xe2\x80\x9d of the cease-fire under international law.\nIn addition, were there to be evidence that Iraq is continuing to develop its WMD\nprogram, or has not destroyed its WMD and their means of delivery, such actions\nalso would constitute material breaches of Iraq\xe2\x80\x99s obligations under UNSCR 687\nunconditionally to destroy, and cease to develop, WMD and their delivery\nsystems.\n\nmaterial breach\xe2\x80\x9d of UNSCR 687); U.N. Doc. S/23609 (Feb. 19, 1992) (Iraq\xe2\x80\x99s failure to acknowledge its\nobligations under UNSCR 707 and 715, its rejection of UNSCOM\xe2\x80\x99s and the IAEA\xe2\x80\x99s plans for\nmonitoring and verification, and its failure to provide adequate disclosure of its weapons capabilities\nconstitute a \xe2\x80\x9ccontinuing material breach\xe2\x80\x9d of UNSCR 687).\n27\nSee, e.g., S.C. Res. 1060, \xc2\xb6 1, U.N. Doc. S/RES/1060 (Jun. 12, 1996) (calling Iraq\xe2\x80\x99s refusal to\nallow access to UNSCOM \xe2\x80\x9ca clear violation\xe2\x80\x9d of UNSCR 687); S.C. Res. 1115, \xc2\xb6 1, U.N. Doc.\nS/RES/1115 (June 21, 1997) (condemning Iraq\xe2\x80\x99s refusal to allow access to UNSCOM as \xe2\x80\x9ca clear and\nflagrant violation of the provisions of\xe2\x80\x9d UNSCR 687); S.C. Res. 1134, \xc2\xb6\xc2\xb6 1-2, U.N. Doc. S/RES/1134\n(Oct. 23, 1997) (deciding that Iraq\xe2\x80\x99s refusal to allow access to UNSCOM, and especially Iraqi actions\nendangering the security of UNSCOM personnel, its destruction of documents, and its interference with\nthe freedom of movement of UNSCOM personnel, were a \xe2\x80\x9cflagrant violation\xe2\x80\x9d of UNSCR 687); S.C.\nRes. 1137, pmbl. \xc2\xb6 11 (determining that Iraq\xe2\x80\x99s obstructionism with respect to UNSCOM \xe2\x80\x9ccontinues to\nconstitute a threat to international peace and security\xe2\x80\x9d); S.C. Res. 1194, \xc2\xb6 1, U.N. Doc. S/RES/1194\n(Sept. 9, 1998) (Iraq\xe2\x80\x99s decision to suspend cooperation with UNSCOM \xe2\x80\x9cconstitutes a totally\nunacceptable contravention of its obligations\xe2\x80\x9d under UNSCR 687); S.C. Res. 1205, \xc2\xb6 1 (condemning\nIraq\xe2\x80\x99s decision to end cooperation with UNSCOM as a \xe2\x80\x9cflagrant violation\xe2\x80\x9d of UNSCR 687); see also\nStatement by the President of the Security Council, U.N. Doc. S/PRST/1997/56 (Dec. 22, 1997) (\xe2\x80\x9cThe\nSecurity Council stresses that failure by the Government of Iraq to provide [UNSCOM] with\nimmediate, unconditional access to any site or category of sites is unacceptable and a clear violation of\nthe relevant resolutions.\xe2\x80\x9d); Press Statement by the Security Council (Oct. 31, 1998) (referring to Iraq\xe2\x80\x99s\ndecision to halt cooperation with UNSCOM and its restrictions on the IAEA\xe2\x80\x99s work as \xe2\x80\x9cdeeply\ndisturbing\xe2\x80\x9d).\n\n166\n\n227-329 VOL_26_PROOF.pdf 176\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\n2. Remedies\nHaving determined that the President has sufficient grounds to find Iraq in\nmaterial breach of the cease-fire, we must address whether unilaterally suspending\nthe cease-fire constitutes a proper remedy for the violation. We believe that Iraq\xe2\x80\x99s\nmaterial breaches of the cease-fire entitle the United States, as a party to the ceasefire, unilaterally to suspend its operation. 28 Cf. Memorandum for John Bellinger,\nIII, Senior Associate Counsel to the President and Legal Adviser to the National\nSecurity Council, from John C. Yoo, Deputy Assistant Attorney General, and\nRobert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of\nthe President to Suspend Certain Provisions of the ABM Treaty at 20-21 (Nov. 15,\n2001) (\xe2\x80\x9cAuthority to Suspend ABM Treaty\xe2\x80\x9d) (In Charlton v. Kelly, 229 U.S. 447,\n473 (1913), the Supreme Court held that \xe2\x80\x9cif a partner to a treaty commits a\nmaterial breach, the President has the option whether to void the treaty or to\noverlook the breach and regard the treaty merely as voidable.\xe2\x80\x9d). Under accepted\nprinciples of international treaty law, the United States need not obtain the\nconcurrence of the other parties to the cease-fire prior to suspending its terms. See\nWedgwood, Enforcement of Security Council Resolution 687, 92 Am. J. Int\xe2\x80\x99l L. at\n726 (United States did not need to wait for Security Council approval before\nresponding to a breach of the cease-fire because \xe2\x80\x9c[i]t is not unreasonable to regard\nthe terms of such a cease-fire [UNSCR 687] as self-executing, just as the violation\nof a newly settled boundary line or demilitarized zone would entitle a neighboring\nstate to act upon a violation\xe2\x80\x9d); cf. Vienna Convention art. 60 (no requirement that\nall parties to a multilateral treaty agree to suspend the treaty\xe2\x80\x94one party may\nsuspend the treaty with respect to itself).\nSome commentators have argued that, before the cease-fire may be suspended,\nthe United States must first obtain a new UNSCR finding that Iraq is in material\nbreach of its obligations. The circumstances that gave rise to the Security Council\xe2\x80\x99s finding in UNSCR 707 that Iraq\xe2\x80\x99s noncompliance with the terms of the ceasefire constituted a material breach are still present today\xe2\x80\x94Iraq continues its\nsignificant obstruction of international inspections of its WMD program. More-\n\n28\nWe note that, outside the particular parameters of the Iraq context, where Security Council\nResolutions both establish a cease-fire between specific parties and authorize the use of force,\nviolations of Security Council resolutions generally lead to challenges before the International Court of\nJustice, see, e.g., South Africa Advisory Opinion, and/or diplomatic repercussions, see Rhodesia\nExecutive Order at 6 (noting \xe2\x80\x9cconsiderable embarrassment\xe2\x80\x9d suffered by the United States when it\nviolated its obligation under the U.N. Charter to implement a Security Council resolution due to a later\nlegislative enactment that took precedence over the resolution); cf. Memorandum for John Bellinger,\nIII, Senior Associate Counsel to the President and Legal Adviser to the National Security Council, from\nJohn C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of\nLegal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty at 1213 & n.13 (Nov. 15, 2001) (discussing possible international sanctions the United States may face if it\nbreaches its treaty or other international law obligations).\n\n167\n\n227-329 VOL_26_PROOF.pdf 177\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nover, we believe that it is within the power of the United States to ascertain for\nitself whether, as an objective fact, there has been a material breach of an agreement to which it is a party. See Legal Authority for the Possible Use of Force\nAgainst Iraq, 92 Am. Soc\xe2\x80\x99y Int\xe2\x80\x99l L. Proc. 136, 141 (1998) (\xe2\x80\x9cWhether there [is] a\nmaterial breach is an objective fact. It is not necessary that it be the [Security]\nCouncil that determines or states that a material breach has occurred.\xe2\x80\x9d) (statement\nof Michael Matheson, Principal Deputy Legal Adviser, Department of State); see\nalso Michael L. Cornell, Comment, A Decade of Failure: The Legality and\nEfficacy of United Nations Actions in the Elimination of Iraqi Weapons of Mass\nDestruction, 16 Conn. J. Int\xe2\x80\x99l L. 325, 356 (2001) (\xe2\x80\x9cnothing in UNSCR 687, the\nU.N. Charter, or international law . . . requires a finding of material breach to be\ndocumented by the UNSC\xe2\x80\x9d); cf. Wedgwood, Enforcement of Security Council\nResolution 687, 92 Am. J. Int\xe2\x80\x99l L. at 728 n.26 (definition of material breach is\nobjective). For example, the United States launched the 1998 airstrikes without\nfirst obtaining either a Security Council resolution or a statement by the President\nof the Security Council that Iraq had materially breached its international obligations.\nThus, in response to Iraq\xe2\x80\x99s material breaches of the conditions of the cease-fire\nestablished in UNSCR 687, the United States may suspend the cease-fire, which\notherwise obligates the United States, Iraq, Kuwait, and the other members of the\ncoalition in the Persian Gulf War to refrain from military action. Once the ceasefire is suspended, the United States may again rely on the authorization in UNSCR\n678 to use force against Iraq to implement UNSCR 687 and to restore international\npeace and security to the area. See Wedgwood, Enforcement of Security Council\nResolution 687, 92 Am. J. Int\xe2\x80\x99l L. at 726 (Iraq\xe2\x80\x99s breach of the terms of the ceasefire in 1997-1998 \xe2\x80\x9callowed the United States to deem the cease-fire in suspension\nand to resume military operations to enforce its conditions\xe2\x80\x9d); cf. Joseph Murphy,\nDe Jure War in the Gulf: Lex Specialis of Chapter VII Actions Prior to, During,\nand in the Aftermath of the United Nations War Against Iraq, 5 N.Y. Int\xe2\x80\x99l L. Rev.\n71, 84-85 (1992) (continuing material breach of UNSCR 687 by Iraq would\neffectively nullify the permanent cease-fire and would reinstate UNSCR 678 and\nits authorization to use military force to implement all subsequent relevant\nresolutions, including UNSCR 687). In our view, UNSCR 678\xe2\x80\x99s authorization to\nuse force has continued in effect since it was first adopted in 1990. We disagree\nwith the idea that, due to the cease-fire established in UNSCR 687, UNSCR 678\xe2\x80\x99s\nauthorization has expired. The consistent position of the United States has been\nthat UNSCR 678 survived the cease-fire. See, e.g., Letter to Congressional\nLeaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security Council\nResolutions, 2 Pub. Papers of Pres. George Bush 1164, 1164-65 (Sept. 16, 1991)\n(explaining\xe2\x80\x94after the adoption of UNSCR 687\xe2\x80\x94that the United States was\nwilling to take military action to implement UNSCR 678\xe2\x80\x99s call for the restoration\nof international peace and security to the region); Legal Authority for the Possible\n\n168\n\n227-329 VOL_26_PROOF.pdf 178\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nUse of Force Against Iraq, 92 Am. Soc\xe2\x80\x99y Int\xe2\x80\x99l L. Proc. at 142 (\xe2\x80\x9cIn the U.S.\nGovernment\xe2\x80\x99s view, there is a continuing right to use force [to respond] to such\n[material] breaches regardless of whether there is further [Security Council]\nauthorization to respond.\xe2\x80\x9d) (panelist Michael Matheson, Principal Deputy Legal\nAdviser, Department of State). As discussed earlier, see supra notes 2, 9-10, and\naccompanying text, UNSCR 678 has been explicitly reaffirmed by UNSCR 687\nitself, as well as by UNSCRs 686 and 949. 29 And, as we explain below, see infra\nPart III.A.4, general principles of armistice law confirm that the cease-fire did not\nextinguish the Security Council\xe2\x80\x99s authorization to use force, but rather suspended\nhostilities between Iraq, the United States, and other members of the coalition.\nIn our view, the President could reasonably determine that suspending the\ncease-fire and resuming hostilities with Iraq is an appropriate response to Iraq\xe2\x80\x99s\nmaterial breaches of the cease-fire. Over the years, Iraq repeatedly has refused to\nrespond to diplomatic overtures and other non-military attempts to force Iraq to\ncomply with its obligations to permit full U.N. inspections of its WMD program.\nThe President could reasonably conclude that military force is necessary to obtain\nIraqi compliance with the terms of the cease-fire, thereby restoring international\npeace and security to the region. And, as we will explain below, state practice\nconfirms that the suspension of the cease-fire and the subsequent use of military\nforce against Iraq constitute an appropriate remedy for Iraq\xe2\x80\x99s material breaches of\nthe cease-fire, provided that such use of force is necessary and proportional.\n3. State Practice on Suspension in Response to Material Breach\nSuspension of treaties or international agreements in response to a material\nbreach is a well-established practice in which the United States has engaged on\nseveral occasions. Such state practice is relevant as a demonstration of customary\ninternational law. See 1 Restatement (Third) of the Foreign Relations Law of the\nUnited States \xc2\xa7 102(2) (1987) (customary international law stems from \xe2\x80\x9ca general\nand consistent practice of states followed by them from a sense of legal obligation\xe2\x80\x9d); id. \xc2\xa7 103 cmt. a (best evidence of customary international law is proof of\nstate practice, ordinarily provided by official documents and other indications of\ngovernmental action).\nThe United States has repeatedly suspended the cease-fire established by\nUNSCR 687 in response to Iraq\xe2\x80\x99s material breach of that resolution. The United\nStates and Britain, for example, used force against Iraq in 1993 and 1998 in\nresponse to Iraq\xe2\x80\x99s material breach of UNSCR 687. On January 17, 1993, President\n29\nThe United Nations Secretary General himself endorsed the concept that UNSCR 678 survived\nthe cease-fire when he declared that the January 1993 strikes against Iraq, which were undertaken\npursuant to UNSCR 678, were in accordance with the U.N. Charter. See Letter to Congressional\nLeaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security Council Resolutions, 2 Pub.\nPapers of Pres. George Bush 2269, 2269 (Jan. 19, 1993).\n\n169\n\n227-329 VOL_26_PROOF.pdf 179\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nGeorge H.W. Bush ordered missile strikes against a nuclear facility near Baghdad\ndue to both Iraq\xe2\x80\x99s refusal to permit certain U.N. aircraft to land in that city, and a\nseries of incidents in which Iraq challenged the authority of the U.N. Iraq-Kuwait\nObservation Mission along the Iraq-Kuwait border. The Security Council found\neach of these actions by Iraq to be material breaches of the cease-fire. In addition,\nthe United States was responding to UNSCOM\xe2\x80\x99s findings on January 15 and 16\nthat Iraq had abdicated its responsibilities to safeguard UNSCOM personnel and\nwas unacceptably attempting to restrict the Commission\xe2\x80\x99s freedom of movement.\nSee Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United\nNations Security Council Resolutions, 2 Pub. Papers of Pres. George Bush 2269,\n2269-70 (Jan. 19, 1993). The strikes were designed \xe2\x80\x9cto help achieve the goals of\nU.N. Security Council Resolutions 687, 707, and 715,\xe2\x80\x9d which required Iraq to\naccept the inspection and dismantlement of its WMD program. Id. at 2270.\nJust four days prior to the January 17th strikes, President Bush ordered an air\nattack on surface-to-missile sites and related facilities in the southern no-fly zone.\nThe January 13th attack, which was joined by Britain and France, appears to have\nbeen primarily in response to Iraqi violations of the southern no-fly zone\xe2\x80\x94Iraq\nhad moved surface-to-air missiles into the zone to threaten coalition aircraft, but\nPresident Bush also pointed to Iraq\xe2\x80\x99s \xe2\x80\x9c\xe2\x80\x98failure to live up to the resolutions.\xe2\x80\x99\xe2\x80\x9d\nBarton Gellman & Ann Devroy, U.S. Delivers Limited Air Strike on Iraq; Bush\nSends Battalion to Kuwait; Baghdad Appears to Make Concessions, Wash. Post,\nJan. 14, 1993, at A1, A18 (quoting President Bush); see also Press Release, United\nStates Mission to the United Nations, USUN-1 (Jan. 13, 1993) (\xe2\x80\x9c[T]he Government of Iraq should understand that continued defiance of U.N. Security Council\nresolutions and related coalition demarches will not be tolerated.\xe2\x80\x9d) (statement by\nMarlin Fitzwater). The President\xe2\x80\x99s report to Congress on the attack takes note of a\nstatement by the U.N. Secretary General explaining that \xe2\x80\x9c\xe2\x80\x98the forces that carried\nout the [January 13th] raid[] have received a mandate from the Security Council,\naccording to Resolution 687, and the cause of the raid was the violation by Iraq of\nResolution 687 concerning the cease-fire. . . . [T]his action . . . conformed to the\nCharter of the United Nations.\xe2\x80\x99\xe2\x80\x9d Letter to Congressional Leaders Reporting on\nIraq\xe2\x80\x99s Compliance with United Nations Security Council Resolutions, 2 Pub.\nPapers of Pres. George Bush 2269, 2269 (Jan. 19, 1993) (quoting U.N. Secretary\nGeneral Boutros-Ghali).\nIn December 1998, President Clinton explained that the United States launched\nseventy hours of missile and aircraft strikes against Iraq \xe2\x80\x9cin response to Iraqi\nbreaches of its obligations under resolutions of the United Nations Security\nCouncil.\xe2\x80\x9d See Letter to Congressional Leaders on the Military Strikes Against\nIraq, 2 Pub. Papers of Pres. William J. Clinton 2195, 2195 (Dec. 18, 1998).\nPresident Clinton\xe2\x80\x99s justification for the military action, which targeted facilities\nactively involved in Iraq\xe2\x80\x99s WMD programs or that threatened Iraq\xe2\x80\x99s neighbors or\nU.S. forces, was that\n\n170\n\n227-329 VOL_26_PROOF.pdf 180\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\n[i]t is consistent with and has been taken in support of numerous\nU.N. Security Council resolutions, including Resolutions 678 and\n687, which authorize U.N. Member States to use \xe2\x80\x9call necessary\nmeans\xe2\x80\x9d to implement the Security Council resolutions and to restore\npeace and security in the region and establish the terms of the ceasefire mandated by the Council, including those related to the destruction of Iraq\xe2\x80\x99s WMD programs.\nId. at 2195-96. As the Acting U.S. Ambassador to the United Nations A. Peter\nBurleigh explained to the other members of the Security Council, Iraq had acted in\n\xe2\x80\x9cflagrant material breach of resolution 687\xe2\x80\x9d by interfering with UNSCOM\xe2\x80\x99s\ninspections, and coalition forces responded under the authority provided by\nUNSCRs. See Press Release, Security Council, Security Council Meets to Discuss\nMilitary Strikes Against Iraq; Some Members Challenge Use of Force Without\nCouncil Consent, U.N. Press Release SC/6611, at 1-2, 7 (Dec. 16, 1998). Professor\nRuth Wedgwood agrees:\nIraq\xe2\x80\x99s calculated defiance of [the terms of the cease-fire regarding\nelimination of WMD and verification by UNSCOM] in the 19971998 confrontation allowed the United States to deem the cease-fire\nin suspension and to resume military operations to enforce its conditions, subject to the requirements of necessity and proportionality. . . . The right to use force unilaterally to vindicate the inspection\nregime is also ratified by . . . the events of January 1993 [in which]\nIraq was warned [by the Security Council] that \xe2\x80\x9cserious consequences\xe2\x80\x9d would flow from \xe2\x80\x9ccontinued defiance.\xe2\x80\x9d On January 13, 1993, the\nUnited Kingdom and France joined the United States in conducting\nair raids on sites in southern Iraq.\nWedgwood, Enforcement of Security Council Resolution 687, 92 Am. J. Int\xe2\x80\x99l L. at\n726-27. International support for the 1998 airstrikes is reflected by the offer of\nArgentina, Australia, Canada, the Czech Republic, Denmark, Germany, Hungary,\nthe Netherlands, New Zealand, Portugal, Spain and the United Kingdom to\ncontribute facilities, equipment or forces to the U.S. military effort, and of Kuwait\nfor the use of its air facilities. See id. at 727. 30\n\n30\nIt bears mention, however, that the reaction of the international community to the use of force\nagainst Iraq in 1998 was not wholly supportive. Although Britain and Japan spoke in favor of the\nstrikes, the Russian Federation labeled them as \xe2\x80\x9cviolat[ing] the principles of international law and the\nprinciple of the [U.N.] Charter.\xe2\x80\x9d U.N. Press Release SC/6611, at 4. Of the Security Council members at\nthe time, China, Costa Rica, Sweden, Brazil, Gambia, Kenya and Gabon also spoke against the 1998\nstrikes\xe2\x80\x94some preferring the peaceful settlement of disputes and some criticizing the unilateral use of\nforce. Id. at 5-10.\n\n171\n\n227-329 VOL_26_PROOF.pdf 181\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nThe United States engaged in the practice of suspending treaties or international\nagreements in response to a material breach long before the conflict with Iraq. For\nexample, on June 20, 1876, President Grant informed Congress that he was\nsuspending the extradition clause of the 1842 Webster-Ashburton Treaty with\nBritain, U.S.-Gr. Brit., art. X, Aug. 9, 1842, 8 Stat. 572, 576. In President Grant\xe2\x80\x99s\nview, the release of two fugitives by Britain whose extradition was sought by the\nUnited States was \xe2\x80\x9can abrogation and annulment\xe2\x80\x9d of the extradition clause of the\ntreaty, and in response the United States refused to surrender fugitives sought by\nthe British Government until the British resumed performance. Authority to\nSuspend ABM Treaty at 17-18; Jacques Semmelman, The Doctrine of Specialty in\nthe Federal Courts: Making Sense of United States v. Rauscher, 34 Va. J. Int\xe2\x80\x99l L.\n71, 125-30 (1993).\nMore recently, in 1973, the United States charged the Democratic Republic of\nVietnam with serious violations of the recently-concluded Agreement on Ending\nthe War and Restoring Peace in Viet-nam, Jan. 27, 1973, 24 U.S.T. 1. In response,\nthe United States declared that it would suspend its mine-clearing operations,\nwhich were mandated by the Agreement. See Arthur W. Rovine, Digest of United\nStates Practice in International Law 482 (1973). The United States explained:\n\xe2\x80\x9cThis suspension is justified as a response to the numerous material breaches of\nthe Agreement by the Democratic Republic of Viet-Nam in accordance with the\nrule of international law as set forth in Article 60 of the 1969 [Vienna] Convention\non the Law of Treaties.\xe2\x80\x9d Id.\nThe United States also partially suspended a multilateral treaty due to a material breach by one of the other parties in August 1986. In response to a policy\nadopted by New Zealand under which U.S. vessels and aircraft could not enter\nNew Zealand ports unless they declared that they were not nuclear-armed or\nnuclear-powered, the United States suspended its security obligations under the\nANZUS Pact\xe2\x80\x94the Security Treaty Between Australia, New Zealand, and the\nUnited States, Sept. 1, 1951, 3 U.S.T. 3420\xe2\x80\x94as to New Zealand but not to\nAustralia. See 1 Marian Nash (Leich), Cumulative Digest of United States Practice\nin International Law, 1981-1988, at 1279-81. The United States explained that\n\xe2\x80\x9c[a]ccess for allied ships and aircraft . . . is essential to the effectiveness of the\nANZUS alliance. . . . Because of New Zealand\xe2\x80\x99s decision to renege on an essential\nelement of its ANZUS participation, it has become impossible for the United\nStates to sustain its security obligations to New Zealand.\xe2\x80\x9d Statement of Secretary\nof State George Shultz, in U.S. and Australia Hold Ministerial Talks, 86 Dep\xe2\x80\x99t St.\nBull. 43, 44 (Oct. 1986). The United States determined that New Zealand had\ncommitted a material breach of article 2 of the ANZUS Pact, which states that the\nparties, \xe2\x80\x9cby means of continuous and effective . . . mutual aid will maintain and\ndevelop their individual and collective capacity to resist armed attack.\xe2\x80\x9d 3 U.S.T.\n3422; see Joint Statement by Secretary of State George Shultz, Secretary of\nDefense Caspar Weinberger, Australian Minister for Foreign Affairs Bill Hayden,\n\n172\n\n227-329 VOL_26_PROOF.pdf 182\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nand Australian Minister for Defense Kim Beazley, in U.S. and Australia Hold\nMinisterial Talks, 86 Dep\xe2\x80\x99t St. Bull. at 48 (agreeing that access for allied ships and\naircraft is essential to the effectiveness of the ANZUS alliance and that New\nZealand\xe2\x80\x99s policies were detracting from the individual and collective capacity to\nresist armed attack); see generally Authority to Suspend ABM Treaty at 18.\nIn sum, for more than a century, the United States has engaged in the wellestablished practice under international law of suspending treaties in response to a\nmaterial breach by one of the other parties to the treaty. The United States has\nextended this practice to the conflict with Iraq, viewing material breaches by Iraq\nof the UNSCR that established the cease-fire as justification for the suspension of\nthat cease-fire. The United States has then proceeded to use force as authorized by\nthe Security Council in UNSCR 678.\n4. Armistice Law\nUsing force in response to a material breach of the cease-fire also would be\nconsistent with general principles of armistice law. The cease-fire established by\nUNSCR 687 is similar to an armistice\xe2\x80\x94unlike a peace treaty, it does not terminate\nthe state of war, but merely \xe2\x80\x9csuspends military operations by mutual agreement\nbetween the belligerent parties.\xe2\x80\x9d Hague Convention on the Law and Customs of\nWar on Land, Oct. 18, 1907 (\xe2\x80\x9cHague Convention IV\xe2\x80\x9d), Annex (\xe2\x80\x9cHague Regulations\xe2\x80\x9d) art. 36, 36 Stat. 2277, 2305; 31 see also Ludecke v. Watkins, 335 U.S. 160,\n167 (1948); Commercial Cable Co. v. Burleson, 255 F. 99, 104-05 (S.D.N.Y.\n1919) (L. Hand, J.), rev\xe2\x80\x99d and vacated as moot, Kansas v. Burleson, 250 U.S. 188\n(1919) (\xe2\x80\x9cAn armistice effects nothing but a suspension of hostilities; the war still\ncontinues.\xe2\x80\x9d); Yoram Dinstein, War, Aggression and Self-Defence 50 (3d ed. 2001)\n(\xe2\x80\x9cA labelling of Resolution 687 as a \xe2\x80\x98permanent cease-fire\xe2\x80\x99 is a contradiction in\nterms: a cease-fire, by definition, is a transition-period arrangement.\xe2\x80\x9d); cf. In re\nYamashita, 327 U.S. 1, 11-12 (1946) (a state of war exists from the time war is\ndeclared until peace is proclaimed); Ribas y Hijo v. United States, 194 U.S. 315,\n323 (1904) (\xe2\x80\x9cA truce . . . does not terminate the war. . . . At the expiration of the\ntruce, hostilities may recommence without any fresh declaration of war.\xe2\x80\x9d) (internal\nquotations omitted); Termination of Wartime Legislation, 40 Op. Att\xe2\x80\x99y Gen. 421,\n422 (1945) (statutes effective only \xe2\x80\x9cin time of war\xe2\x80\x9d remain effective until restoration of a formal state of peace); Sydney D. Bailey, Cease-Fires, Truces, and\nArmistices in the Practice of the UN Security Council, 71 Am. J. Int\xe2\x80\x99l L. 461, 463,\n469-71 (1977) (whereas an armistice is negotiated directly between the belligerents, the Security Council has introduced a new concept\xe2\x80\x94the cease fire\xe2\x80\x94that \xe2\x80\x9cis\n31\nThe Nuremberg Tribunal recognized the Hague Regulations as articulating customary international law. See Trial of the Major War Criminals Before the International Military Tribunal (19451946), reprinted in II The Law of War: A Documentary History 922, 960-61 (Leon Friedman, ed.,\n1972).\n\n173\n\n227-329 VOL_26_PROOF.pdf 183\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nsimply a suspension of acts of violence . . . resulting from the intervention of a\nthird party\xe2\x80\x9d). Thus, the cease-fire established in UNSCR 687 merely suspended,\nrather than terminated, hostilities with Iraq.\nA cease-fire allows a party to a conflict to resume hostilities under certain\nconditions. Under the Hague Regulations, \xe2\x80\x9c[a]ny serious violation of the armistice\nby one of the parties gives the other party the right of denouncing it, and even, in\ncases of urgency, of recommencing hostilities immediately.\xe2\x80\x9d Hague Regulations\nart. 40, 36 Stat. at 2305-06; see also U.S. Army Field Manual, The Law of Land\nWarfare, FM 27-10, ch. 7, \xc2\xb6 493 (July 1956, as updated) (hostilities may be\nresumed only with \xe2\x80\x9cconvincing proof of intentional and serious violation of [the\narmistice\xe2\x80\x99s] terms by the other party\xe2\x80\x9d). 32 The Hague Regulations do not contain\nany explanation of what might qualify as \xe2\x80\x9curgency,\xe2\x80\x9d but the Department of the\nArmy\xe2\x80\x99s Field Manual sheds some light on the question. According to the Army\nField Manual, warning must be given to the other side, unless \xe2\x80\x9cthe delay incident\nto formal denunciation and warning seems likely to give the violator a substantial\nadvantage of any kind.\xe2\x80\x9d FM 27-10, ch. 7, \xc2\xb6 493; cf. 2 L. Oppenheim, International\nLaw: Disputes, War, and Neutrality 556 (H. Lauterpacht ed., 7th ed. 1952) (\xe2\x80\x9csince\nthe terms \xe2\x80\x98serious violation\xe2\x80\x99 and \xe2\x80\x98urgency\xe2\x80\x99 lack precise definition, the course to be\ntaken is in practice left to the discretion of the injured party\xe2\x80\x9d).33\nThe missile strikes in 1993 and 1998 serve as clear examples of the suspension\nof a cease-fire and a resumption of hostilities due to serious violations by Iraq. As\none scholar has described, \xe2\x80\x9c[t]he [1998-1999] air campaign must be seen as a\nresumption of combat operations in the face of Iraqi violations of the cease-fire\nterms. The hostilities merely continue a decade-long war, which started when Iraq\ninvaded Kuwait in August 1990.\xe2\x80\x9d Dinstein, War, Aggression and Self-Defense at\n50-51. Whether or not required under international law, warnings were given. See\n\n32\nThe provisions in the Hague Regulations relating to a violation of an armistice were a compromise between those who believed that under international law the injured party may recommence\nhostilities immediately without notice, and those who thought that the only right of the injured party is\nthe right to \xe2\x80\x9cdenounce\xe2\x80\x9d the armistice. See 2 L. Oppenheim, International Law: Disputes, War, and\nNeutrality 555-56 (H. Lauterpacht ed., 7th ed. 1952).\n33\nIn addition to permitting the resumption of hostilities in response to a serious violation of an\narmistice, the laws of armed conflict permit the United States to resume hostilities at its discretion\xe2\x80\x94\nprovided that warning is given to Iraq. According to the Hague Regulations, if an armistice does not\nspecify its duration, \xe2\x80\x9cthe belligerent parties may resume operations at any time, provided always that\nthe enemy is warned within the time agreed upon, in accordance with the terms of the armistice.\xe2\x80\x9d\nHague Regulations art. 36, 36 Stat. at 2305. If the parties have not made any stipulation regarding\nnotice, it may be provided at any time, and hostilities may recommence immediately after notification.\nSee U.S. Army Field Manual, The Law of Land Warfare, FM 27-10, ch. 7, \xc2\xb6 487 (July 1956, as\nupdated); 2 Oppenheim, Disputes, War and Neutrality at 556; see also Colonel Howard S. Levie, The\nNature and Scope of the Armistice Agreement, 50 Am. J. Int\xe2\x80\x99l L. 880, 893 (1956) (although armistices\ngenerally do not specify the period of advance notice required, under customary international law,\n\xe2\x80\x9cgood faith requires that notice be given of the intention to resume hostilities\xe2\x80\x9d) (internal quotations and\ncitations omitted).\n\n174\n\n227-329 VOL_26_PROOF.pdf 184\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\ngenerally Note by the President of the Security Council, U.N. Doc. S/25091\n(Jan. 11, 1993) (warning Iraq of the \xe2\x80\x9cserious consequences\xe2\x80\x9d that would follow if it\nfailed to comply with its obligations); Note by the President of the Security\nCouncil, U.N. Doc. S/25081 (Jan. 8, 1993) (same); Letter to Congressional\nLeaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security Council\nResolutions, 2 Pub. Papers of Pres. George Bush 2269, 2269-70 (Jan. 19, 1993)\n(noting Security Council\xe2\x80\x99s warnings prior to the January 17th attack and explaining that the United States and the coalition warned Iraq prior to the January 13th\nstrikes); The President\xe2\x80\x99s Radio Address, 2 Pub. Papers of Pres. William J. Clinton\n2197, 2197 (Dec. 19, 1998) (\xe2\x80\x9cLast month, when [Saddam Hussein] agreed to fully\ncooperate, I canceled an American military action. But I . . . made it absolutely\nclear that if he did not fully cooperate, we would have no choice but to act without\nfurther negotiation or warning.\xe2\x80\x9d). It is our understanding based on information\nsupplied by the Department of Defense that in neither case did the United States\nobtain the express agreement of all of the other members of the Persian Gulf War\ncoalition before suspending the cease-fire and using force.\nUnder general principles of armistice law, therefore, because the initial use of\nforce in response to the invasion of Kuwait\xe2\x80\x94Operation Desert Storm\xe2\x80\x94was\nauthorized under UNSCR 678, subsequent uses of force against Iraq in response to\nserious violations of the terms of the cease-fire established by UNSCR 687 would\nbe authorized as well, provided either that Iraq has been warned, or that such a\nwarning may be avoided because it would be likely to give Saddam Hussein a\nsubstantial advantage.\nIf Iraq is currently in \xe2\x80\x9cserious violation\xe2\x80\x9d of the cease-fire, the United States\nmay respond with force. It is our understanding that Iraq continues to violate, in\nparticular, the conditions set forth in section C of UNSCR 687. As outlined above,\nsupra Part I, that section requires Iraq to (1) accept unconditionally the destruction, removal, or rendering harmless, under international supervision, of its\nchemical and biological weapons and its ballistic missiles with a range greater\nthan 150 kilometers (and related major parts, and repair and production facilities)\nand agree to urgent on-site inspection of such weapons and their delivery systems;\n(2) undertake unconditionally not to use, develop, construct or acquire such WMD\nand their delivery systems; (3) agree unconditionally not to acquire or develop\nnuclear weapons or nuclear-weapons-usable material or any subsystems or\ncomponents or any related research, development, support or manufacturing\nfacilities; and (4) accept on-site inspection and the destruction, removal or\nrendering harmless as appropriate of all such nuclear-related weapons or materials.\nIraq must comply with all four conditions to be in compliance with the terms of\nthe cease-fire, and the President could determine that violation of any one of these\nconditions constitutes a serious violation of the cease-fire. Even if Iraq were to\naccept the return of U.N. inspectors and grant them unimpeded access, if Iraq has\nnot destroyed its WMD and their delivery systems, or continues to seek to build\n\n175\n\n227-329 VOL_26_PROOF.pdf 185\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nsuch weapons, the United States may still respond with force because Iraq would\nbe in \xe2\x80\x9cserious violation\xe2\x80\x9d of the cease-fire agreement.\n5. UNSCR 688\nApart from material breach and armistice law, the use of force against Iraq also\nmay be justified in certain circumstances in response to threats to international\npeace and security caused by Iraq\xe2\x80\x99s violation of UNSCR 688. UNSCR 678\nauthorizes the use of \xe2\x80\x9call necessary means\xe2\x80\x9d not only to eject Iraq from Kuwait, but\nalso to uphold and implement \xe2\x80\x9csubsequent relevant resolutions\xe2\x80\x9d and to restore\ninternational peace and security to the Persian Gulf region. UNSCR 688 condemned Iraq\xe2\x80\x99s repression of its civilian population, found that such repression\nendangered international peace and security in the region, and demanded that Iraq\ncease such repression. By its terms, UNSCR 688 qualifies as a \xe2\x80\x9csubsequent\nrelevant resolution\xe2\x80\x9d and its effective implementation is necessary to the restoration\nof peace and security to the region. Thus, UNSCR 688, in combination with\nUNSCR 678, provides authorization from the U.N. Security Council to use force,\nif necessary, to stop Iraq from repressing its civilian population if such repression\nwould threaten international peace and security by, for example, causing refugee\nflows that would destabilize the region.\nThe Clinton Administration focused on this combination of UNSCRs 678 and\n688 to justify its September 1996 airstrikes and the subsequent expansion of the\nsouthern no-fly zone. When Saddam Hussein moved against the Kurdish civilian\npopulation in northern Iraq in 1996, the Administration stated that he violated\nUNSCR 688 and thereby threatened international peace and security by increasing\nthe risk of cross-border incursions by neighboring countries or large flows of\nrefugees across international borders. In response, the United States relied on\nUNSCR 678 to bring Iraq into compliance with UNSCR 688 and to restore\ninternational peace and security. 34 See generally Gingrich Letter at 1 (\xe2\x80\x9cOur\nresponse demonstrates to Saddam Hussein that he must cease all actions that\nthreaten international peace and security.\xe2\x80\x9d); id. at 2 (\xe2\x80\x9cThe no-fly zones were\noriginally established pursuant to and in support of [UNSCRs] 678, 687, and\n688 . . . . Expanding the no-fly zone was a reasonable response to the enhanced\nthreat posed by Iraq.\xe2\x80\x9d); Glyn Davies, U.S. Dep\xe2\x80\x99t of State, Daily Press Briefing at 3\n(Sept. 4, 1996), available at http://dosfan.lib.uic.edu/ERC/briefing/daily_briefings/\n1996/9609/960904db.html (last visited June 4, 2012) (\xe2\x80\x9c678 and 688 together, I\nthink, form the basis for the action we took\xe2\x80\x9d); Nicholas Burns, U.S. Dep\xe2\x80\x99t of State,\n34\nThe September 1996 strikes met with a mixed response from other members of the Security\nCouncil\xe2\x80\x94while Britain, Germany, Canada and Japan offered general support for the U.S. and U.K.\nmilitary action, Russia denounced it and France and Spain stated that the United States should have\nsought a political solution. See Alain E. Boileau, To the Suburbs of Baghdad: Clinton\xe2\x80\x99s Extension of\nthe Southern Iraqi No-Fly Zone, 3 ILSA J. Int\xe2\x80\x99l L. & Comp. L. 875, 890-91 (1997).\n\n176\n\n227-329 VOL_26_PROOF.pdf 186\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nDaily Press Briefing at 13-14 (Sept. 3, 1996), available at http://dosfan.lib.uic.edu/\nERC/briefing/daily_briefings/1996/9609/960903db.html (last visited June 4, 2012)\n(\xe2\x80\x9cThere was no need for Security Council action. The United States has clear\nauthority under U.N. Security Council Resolution 688.\xe2\x80\x9d); cf. Letter to Congressional Leaders on the Situation in the Persian Gulf, 1 Pub. Papers of Pres. George\nBush 521, 521-22 (May 17, 1991) (explaining that introduction of U.S. forces into\nnorthern Iraq for emergency relief purposes was \xe2\x80\x9cconsistent with\xe2\x80\x9d UNSCR 688,\nbut not an attempt to intervene militarily into Iraq\xe2\x80\x99s internal affairs or to impair its\nterritorial integrity). 35\nIn sum, we believe that the Security Council has authorized the United States to\nresort to the use of force against Iraq either (1) in response to Iraq\xe2\x80\x99s material\nbreaches or substantial violations of the terms of the cease-fire, which permit the\nUnited States to suspend the cease fire and rely on UNSCR 678 as an authorization to use \xe2\x80\x9call necessary means\xe2\x80\x9d to bring Iraq into compliance with UNSCR 687,\nor (2) in response to violations of UNSCR 688 that threaten international peace\nand security. 36\nB. Anticipatory Self-Defense\nIndependent of the support provided by U.N. Security Council resolutions,\nauthority under international law for armed intervention in Iraq could come from\nthe national right of self-defense. The right of self-defense under customary\n\n35\nThe international authorization for the 1996 strikes is similar to the justification for establishing\nand patrolling the no-fly zones in the north and south of Iraq. Although the U.N. has not officially\nendorsed the creation of the no-fly zones, see Ian Johnstone, Aftermath of the Gulf War: An Assessment\nof UN Action 38 (1994), the zones are authorized under a combination of resolutions 678 and 688 to\nmonitor compliance with resolution 688 and to deter repression of the civilian population, as well as\nunder a combination of resolutions 678 and 687 to implement the cease-fire by monitoring Iraq\xe2\x80\x99s\ncompliance with its terms. See James P. Rubin, U.S. Dep\xe2\x80\x99t of State, Daily Press Briefing at 5 (Jan. 5,\n1999), available at http://www.fas.org/news/iraq/1999/01/990105db.html (last visited June 4, 2012)\n(zones are authorized by a combination of UNSCRs 678, 687\xe2\x80\x94which reaffirmed 678\xe2\x80\x94and 688); see\nalso Letter to Congressional Leaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security\nCouncil Resolutions, 1 Pub. Papers of Pres. William J. Clinton 715, 716 (May 21, 1993) (no-fly zones\nmonitor Iraqi compliance with UNSCR 688 and UNSCR 687); Letter to Congressional Leaders\nReporting on Iraq\xe2\x80\x99s Compliance with United Nations Security Council Resolutions, 2 Pub. Papers of\nPres. George Bush 2269, 2269-70 (Jan. 19, 1993) (southern no-fly zone monitors Iraqi compliance\nwith UNSCR 688).\n36\nWe believe that UNSCR 678\xe2\x80\x99s authorization of \xe2\x80\x9call necessary means . . . to restore international\npeace and security in the area\xe2\x80\x9d (S.C. Res. 678, \xc2\xb6 2) arguably would independently authorize the\nPresident to use force, even if Iraq had not engaged in violations of UNSCRs 687 or 688. Determining\nwhether the use of force would be necessary to restore international peace and security would be\nwholly within the President\xe2\x80\x99s discretion. We need not decide this issue here, however, because, as the\nPresident recently explained to the United Nations, Iraq has engaged in repeated violations of both\nUNSCR 687 and UNSCR 688. See Address to the United Nations General Assembly in New York\nCity, 2 Pub. Papers of Pres. George W. Bush 1572, 1573 (Sept. 12, 2002).\n\n177\n\n227-329 VOL_26_PROOF.pdf 187\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\ninternational law is well established. Article 51 of the U.N. Charter recognizes and\naffirms that \xe2\x80\x9cinherent\xe2\x80\x9d right:\nNothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a\nMember of the United Nations, until the Security Council has taken\nmeasures necessary to maintain international peace and security.\nSee also North Atlantic Treaty art. 5, Apr. 4, 1949, 63 Stat. 2241, 2244, 34\nU.N.T.S. 243, 246 (agreeing that if an armed attack occurs against one of the\nparties, the others will exercise the right of individual or collective self-defense\nrecognized by article 51); Inter-American Treaty of Reciprocal Assistance and\nFinal Act of the Inter-American Conference for the Maintenance of Continental\nPeace and Security art. 3, Sept. 2, 1947, 21 U.N.T.S. 77, 95 (Rio Treaty) (same).\nAlthough recognized by these agreements, the right to self-defense is broader in\nscope than suggested by these provisions. For example, in July 1940, the British\nused force in self-defense against the French, absent any armed attack by the\nFrench and even though Britain and France had recently been fighting Hitler sideby-side. Shortly after the Vichy regime was established in June 1940, the British\ngave the French an ultimatum requiring the French to take certain steps to protect\ntheir ships at Mers-el-Kabir\xe2\x80\x94a small base on the Algerian coast\xe2\x80\x94from being\ntaken over by the Germans. When the French refused to comply, the British\nopened fire under \xe2\x80\x9cOperation Catapult,\xe2\x80\x9d killing more than 1,200 French officers\nand men. See generally Alistair Horne, Mers-el-Kebir Was a Bizarre and Melancholy Action, 16 Smithsonian 122 (July 1985); W.T. Mallison, Jr., Limited Naval\nBlockade or Quarantine-Interdiction: National and Collective Defense Claims\nValid Under International Law, 31 Geo. Wash. L. Rev. 335, 349 (1962). Prime\nMinister Winston Churchill took this action believing that \xe2\x80\x9cthe life of the State and\nthe salvation of our cause were at stake. . . . [N]o act was ever more necessary for\nthe life of Britain and for all that depended upon it.\xe2\x80\x9d Winston S. Churchill, The\nSecond World War: Their Finest Hour 232 (1949); see also Memorandum for\nWilliam J. Haynes II, General Counsel, Department of Defense, from Jay S.\nBybee, Assistant Attorney General, Office of Legal Counsel, Re: Legal Constraints to Boarding and Searching Foreign Vessels on the High Seas at 5 (June\n13, 2002) (\xe2\x80\x9cBoarding and Searching Foreign Vessels\xe2\x80\x9d) (discussing 1939 blockade\non the high seas adjacent to the American continent to prevent any belligerent\nnation from taking hostile action in these waters as an example of anticipatory\nself-defense).\nDespite the longstanding recognition of a nation\xe2\x80\x99s right to self-defense, some\nargue that article 51 has limited the right to permit only a response to an actual\n\xe2\x80\x9carmed attack.\xe2\x80\x9d See, e.g., Dinstein, War, Aggression and Self-Defense at 167-68.\nSome even argue that an armed attack must occur across national borders before\n\n178\n\n227-329 VOL_26_PROOF.pdf 188\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nthe article 51 right is triggered. See, e.g., Ian Brownlie, International Law and the\nUse of Force by States 275-80 (1963). Such an interpretation, however, would\nmean that the U.N. Charter extinguished the pre-existing right under customary\ninternational law to take reasonable anticipatory action in self-defense. There is no\nindication that the drafters of the U.N. Charter intended to limit the customary law\nin this way. See Myres S. McDougal, Editorial Comment, The Soviet-Cuban\nQuarantine and Self-Defense, 57 Am. J. Int\xe2\x80\x99l L. 597, 599 (1963) (\xe2\x80\x9cThere is not the\nslightest evidence that the framers of the United Nations Charter, by inserting one\nprovision which expressly reserves a right of self-defense, had the intent of\nimposing by this provision new limitations upon the traditional right of states.\xe2\x80\x9d);\nsee also Abraham D. Sofaer, International Law and Kosovo, 36 Stan. J. Int\xe2\x80\x99l L. 1,\n16 (2000). 37 Instead, as we have explained at length elsewhere, article 51 merely\nreaffirms a right that already existed independent of the Charter. See Boarding and\nSearching Foreign Vessels at 10; see also D.W. Bowett, Self-Defence in International Law 187 (1958).\nThe customary international law right to use force in anticipatory self-defense\nis a well-established aspect of the \xe2\x80\x9cinherent right\xe2\x80\x9d of self-defense. As we\nexplained forty years ago:\nThe concept of self-defense in international law of course justifies\nmore than activity designed merely to resist an armed attack which is\nalready in progress. Under international law every state has, in the\n37\nThe negotiating history of the U.N. Charter reveals that the drafters did not intend for the prohibition on the use of force in article 2(4) to impair \xe2\x80\x9cthe use of arms in legitimate self-defence.\xe2\x80\x9d Bowett,\nSelf-Defence in International Law at 182 (internal quotations omitted); see also Ruth B. Russell,\nA History of the United Nations Charter: The Role of the United States, 1940-1945, at 466 (1958)\n(states agreed at Dumbarton Oaks that \xe2\x80\x9cthe Charter could not deny the inherent right of self-defense\nagainst aggression\xe2\x80\x9d). The genesis of article 51 was the desire to preserve the right of collective selfdefense under regional arrangements such as the Act of Chapultepec, which incorporated the concept\nthat an attack on one state in the region would be seen as an attack on all. See Report to the President\non the Results of the San Francisco Conference by the Chairman of the United States Delegation and\nSecretary of State E.R. Stettinius, reprinted in The Charter of the United Nations: Hearings Before\nS. Comm. on Foreign Relations, 79th Cong. 34, 96-100 (1945) (\xe2\x80\x9cReport to the President\xe2\x80\x9d) (article 51\ndesigned to integrate regional arrangements with the establishment of a universal international\norganization); see also Dinstein, War, Aggression and Self-Defense at 161; see generally Russell,\nHistory of the United Nations Charter at 697-706. The Latin American states wanted to make the Act\nof Chapultepec\xe2\x80\x99s policy of collective defense, which was to last only until the end of World War II,\npermanent in a multilateral treaty, and article 51 was drafted in large part to ensure that the U.N.\nCharter did not interfere with that goal. Report to the President at 100. Moreover, the Senators who\ngave their advice and consent to the U.N. Charter were primarily concerned that it not interfere with the\nMonroe Doctrine. See The Charter of the United Nations, S. Exec. Rep. No. 79-8, at 10 (1945) (under\narticle 51, \xe2\x80\x9cin the case of a direct act of aggression against an American country\xe2\x80\x94that is, in the case of\nthe first contingency contemplated in the Monroe Doctrine\xe2\x80\x94the United States and the other American\nRepublics could proceed at once to the assistance of the victim of the attack\xe2\x80\x9d). The purpose of article\n51 was to protect the pre-existing right of self-defense, not to restrict it. See Bowett, Self-Defence in\nInternational Law at 188.\n\n179\n\n227-329 VOL_26_PROOF.pdf 189\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nwords of Elihu Root, 38 \xe2\x80\x9cthe right . . . to protect itself by preventing a\ncondition of affairs in which it will be too late to protect itself.\xe2\x80\x9d\nMemorandum for the Attorney General, from Norbert A. Schlei, Assistant\nAttorney General, Office of Legal Counsel, Re: Legality under International Law\nof Remedial Action Against Use of Cuba as a Missile Base by the Soviet Union at\n2 (Aug. 30, 1962); cf. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29 (1827) (\xe2\x80\x9cthe\n[domestic] power to provide for repelling invasions includes the power to provide\nagainst the attempt and danger of invasion\xe2\x80\x9d). Thus, under existing Department of\nJustice opinions, the United States has the right under international law to use\nforce against another state even before we actually come under armed attack, in\norder to prevent or forestall that attack. We now turn to the task of explaining the\nlegal principles that give content to the doctrine of anticipatory self-defense.\n1. The Caroline Test\nThe classic formulation of the right of anticipatory self-defense arose from the\nCaroline incident. In 1837, the steamer Caroline had been supplying armed\ninsurgents against British rule in Canada with reinforcements of men and materials\nfrom the United States. In response, a British force from Canada entered U.S.\nterritory at night, seized the Caroline, set the ship on fire, and launched it down\nNiagara Falls, killing two U.S. citizens in the process. The British claimed that\nthey were acting in self-defense, and Secretary of State Daniel Webster called\nupon the British to show that the\nnecessity of self-defence [was] instant, overwhelming, leaving no\nchoice of means, and no moment of deliberation . . . [and that the\nBritish force], even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly\nwithin it.\nLetter for Henry Fox, British Minister in Washington, from Daniel Webster,\nSecretary of State (Apr. 24, 1841), reprinted in 1 British Documents on Foreign\nAffairs: Reports and Papers from the Foreign Office Confidential Print, pt. I,\nseries C, 153, 159 (Kenneth Bourne ed., 1986) (\xe2\x80\x9cWebster Letter\xe2\x80\x9d). The next year,\nLord Ashburton, who had been sent by the British as a special minister to resolve\nthe Caroline dispute and other related matters, implicitly accepted this test by\n38\nElihu Root served as Secretary of War in President McKinley\xe2\x80\x99s Administration and as Secretary\nof State in President Theodore Roosevelt\xe2\x80\x99s Administration. He was also a Senator from New York and\nwinner of the Nobel Peace Prize.\n\n180\n\n227-329 VOL_26_PROOF.pdf 190\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\njustifying Britain\xe2\x80\x99s actions in these terms. See Letter for Daniel Webster, Secretary\nof State, from Lord Ashburton (July 28, 1842), reprinted in 1 British Documents\non Foreign Affairs: Reports and Papers from the Foreign Office Confidential\nPrint, pt. I, series C, 332-35 (Kenneth Bourne ed., 1986). Although Secretary\nWebster disagreed that his test had been satisfied, viewing the burning of the ship\nin the middle of the night as an unnecessary and disproportionate response to the\nthreat, he agreed to accept Great Britain\xe2\x80\x99s apology and dismiss the matter. See\nLetter for Lord Ashburton, from Daniel Webster, U.S. Secretary of State (Aug. 6,\n1842), reprinted in 1 British Documents on Foreign Affairs: Reports and Papers\nfrom the Foreign Office Confidential Print, pt. I, series C, 346-47 (Kenneth\nBourne ed., 1986); see generally R.Y. Jennings, The Caroline and McLeod Cases,\n32 Am. J. Int\xe2\x80\x99l L. 82, 82-91 (1938). Webster\xe2\x80\x99s formulation was reaffirmed a\ncentury later by the International Military Tribunal at Nuremberg when it ruled\nthat the German invasion of Norway in 1940 was not defensive because it was\nunnecessary to prevent an \xe2\x80\x9cimminent\xe2\x80\x9d Allied invasion, and instead was an\nimpermissible act of aggression because the primary objective of the invasion was\nto secure operational bases in Norway. See International Military Tribunal\n(Nuremberg), Judgment and Sentences, 41 Am. J. Int\xe2\x80\x99l L. 172, 205 (1947)\n(\xe2\x80\x9c[P]reventive action in foreign territory is justified only in case of \xe2\x80\x98an instant and\noverwhelming necessity for self-defense, leaving no choice of means, and no\nmoment of deliberation.\xe2\x80\x99\xe2\x80\x9d) (quoting the Caroline case); see also Bowett, SelfDefence in International Law at 142-43.\nThe Caroline test has been distilled into two principal requirements for legitimate self-defense. First, the use of force must be necessary because the threat is\nimminent and thus pursuing peaceful alternatives is not an option. Second, the\nresponse must be proportionate to the threat. See Bowett, Self-Defence in International Law at 53, 188-89; see also McDougal, Soviet-Cuban Quarantine, 57 Am.\nJ. Int\xe2\x80\x99l L. at 597-98. 39 International legal authorities seem to agree that necessity\nand proportionality apply to the use of force in all cases, not just in cases of selfdefense. 40\n39\nThe principle of proportionality requires that the force used be that which is needed to neutralize\nor eliminate the threat. See Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World\nPublic Order: The Legal Regulation of International Coercion 242-43 (1961); see also Oscar\nSchachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1637 (1984). Proportionality permits the removal of the danger that justifies the use of force as being necessary. See Richard J.\nGrunawalt, The JCS Standing Rules of Engagement: A Judge Advocate\xe2\x80\x99s Primer, 42 A.F.L. Rev. 245,\n251 (1997) (proportionality is \xe2\x80\x9cthe degree of force, that is reasonable in terms of intensity, duration and\nmagnitude, required to decisively counter the hostile act or demonstration of hostile intent that\nconstitutes the necessity part of the equation\xe2\x80\x94but no more than that\xe2\x80\x9d). As with necessity, the\nfundamental test is one of reasonableness. See McDougal & Feliciano, Law and Minimum World\nPublic Order at 218.\n40\nSimilarly, the requirements of necessity and proportionality apply to any use of force in selfdefense, whether in anticipation of an attack, or in response to an armed attack that has already\noccurred. In Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.\n\n181\n\n227-329 VOL_26_PROOF.pdf 191\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\n2. Necessity\nInternational law does not supply a precise or detailed definition of what it\nmeans for a threat to be sufficiently \xe2\x80\x9cimminent\xe2\x80\x9d to justify the use of force in selfdefense as necessary. Even outside the use-of-force context, although the term\n\xe2\x80\x9cimminent\xe2\x80\x9d is used in a variety of international agreements, it is rarely defined. 41\nAlthough the dictionary definition of \xe2\x80\x9cimminent\xe2\x80\x9d focuses on the temporal, see\nWebster\xe2\x80\x99s Third New International Dictionary 1130 (1993) (defining \xe2\x80\x9cimminent\xe2\x80\x9d\nas \xe2\x80\x9cready to take place: near at hand: impending . . . hanging threateningly over\none\xe2\x80\x99s head: menacingly near\xe2\x80\x9d), under international law the concept of imminence\nencompasses an analysis that goes beyond the temporal proximity of the threat.\nThe ICJ, for example, has attempted to define imminence in the context of the\nnecessity doctrine as it relates to relieving a state of its international obligations. In\nGab\xc3\xbetkovo-Nagymaros Project (Hungary/Slovakia), 1997 I.C.J. 7 (Sept. 27), the\nICJ addressed whether Hungary was justified in suspending work on the\nGabcikovo-Nagymaros dam because of Hungary\xe2\x80\x99s fears regarding the environmental consequences of such work on the Danube. A treaty with Slovakia required\nHungary to perform the work. The court considered whether Hungary\xe2\x80\x99s suspension of work was justified by a \xe2\x80\x9cstate of necessity,\xe2\x80\x9d which it defined by reference\nto article 33 of the Draft Articles on the International Responsibility of States\nadopted by the International Law Commission. Id. at 36-37 \xc2\xb6 50. The ICJ\ndescribed article 33 as reflecting customary international law. Id. at 41-42 \xc2\xb6 52.\nArticle 33 permits a state to invoke a state of necessity as a ground for failing to\n14 (June 27), for example, the International Court of Justice (\xe2\x80\x9cICJ\xe2\x80\x9d), reserving the issue of the\nappropriate use of force in anticipatory self-defense because the case concerned an armed attack that\nhad already occurred, noted that \xe2\x80\x9c[t]he Parties also agree in holding that whether the response to the\nattack is lawful [under customary international law] depends on observance of the criteria of the\nnecessity and the proportionality of the measures taken in self-defence.\xe2\x80\x9d Id. at 103 \xc2\xb6 194; see also id. at\n94 \xc2\xb6 176 (well established under customary international law that measures taken in self-defense must\nbe necessary and proportional). The United States, however, refused to accept the jurisdiction of the\nICJ in this case, filed no pleadings on the merits, and did not appear at oral argument. Id. at 20 \xc2\xb6 17.\nNonetheless, the State Department Legal Adviser at the time, Abraham Sofaer, agreed with this\nformulation of customary international law, stating, \xe2\x80\x9cwe recognize that force may be used only to deter\nor prevent aggression, and only to the extent it is necessary and proportionate.\xe2\x80\x9d Abraham D. Sofaer,\nJoint Luncheon With the Section of International Law and Practice of the American Bar Association,\n82 Am. Soc\xe2\x80\x99y Int\xe2\x80\x99l L. Proc. 420, 422 (1988), reprinted in 3 Marian Nash (Leich), Cumulative Digest of\nUnited States Practice in International Law, 1981-1988, 3388, 3389 (1995).\n41\nSee, e.g., Agreement between the United States of America and the Hashemite Kingdom of\nJordan on the Establishment of a Free Trade Area art. 10(7), Oct. 24, 2000, 41 I.L.M. 63 (defining\n\xe2\x80\x9cthreat of serious injury\xe2\x80\x9d as \xe2\x80\x9cserious injury that, on the basis of facts and not merely on allegation,\nconjecture or remote possibility, is clearly imminent\xe2\x80\x9d); United Nations Convention on the Law of the\nSea art. 198, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (obligation to notify affected\nstates when the marine environment is in \xe2\x80\x9cimminent danger of being damaged\xe2\x80\x9d by pollution);\nConvention for the Intervention on the High Seas in Cases of Oil Pollution Casualties art. 2, Nov. 29,\n1969, 26 U.S.T. 765 (defining \xe2\x80\x9cmaritime casualty\xe2\x80\x9d to include various occurrences resulting in\n\xe2\x80\x9cimminent threat of material damage\xe2\x80\x9d to a ship or cargo).\n\n182\n\n227-329 VOL_26_PROOF.pdf 192\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\ncomply with an international obligation if, inter alia, \xe2\x80\x9cthe act was the only means\nof safeguarding an essential interest of the State against a grave and imminent\nperil.\xe2\x80\x9d Id. at 36 \xc2\xb6 50. The ICJ declared that\n\xe2\x80\x9cImminence\xe2\x80\x9d is synonymous with \xe2\x80\x9cimmediacy\xe2\x80\x9d or \xe2\x80\x9cproximity\xe2\x80\x9d and\ngoes far beyond the concept of \xe2\x80\x9cpossibility.\xe2\x80\x9d As the International\nLaw Commission emphasized in its commentary, the \xe2\x80\x9cextremely\ngrave and imminent\xe2\x80\x9d peril must \xe2\x80\x9chave been a threat to the interest at\nthe actual time.\xe2\x80\x9d That does not exclude, in the view of the Court, that\na \xe2\x80\x9cperil\xe2\x80\x9d appearing in the long term might be held to be \xe2\x80\x9cimminent\xe2\x80\x9d\nas soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any\nless certain and inevitable.\nId. at 42 \xc2\xb6 54 (internal citations omitted). 42 The court thereby acknowledged that\nevaluating imminence requires an analysis of not just the timing, but also the\nprobability of the threat.\nIn addition to the probability the threat will materialize, international law recognizes the need to evaluate the magnitude of harm the threat would cause. Over\ntime, the advent of nuclear and other sophisticated weapons has dramatically\nincreased the degree of potential harm to be factored in. Weapons of mass\ndestruction threaten devastating and indiscriminate long-term damage to large\nsegments of the civilian population and environment. As the ICJ explained in\nLegality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J.\n226, 244 \xc2\xb6 36 (July 8), nuclear weapons possess unique characteristics, \xe2\x80\x9cin\nparticular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.\xe2\x80\x9d In addition, the\ndanger posed by WMD is exacerbated by the possibility that the means of delivery\nmay be relatively unsophisticated\xe2\x80\x94for example, a \xe2\x80\x9cdirty bomb\xe2\x80\x9d driven into a\nbuilding by a suicide bomber, or the spread of a biological agent with an ordinary\ncrop duster. At the same time, development of advanced missile technology has\nvastly improved the capability for stealth, rendering the threat of the weapons they\ndeliver more imminent because there is less time to prevent their launch.\nWith these developments in offensive arms and their means of delivery, the\ncalculus of whether a threat is sufficiently imminent to render the use of force\nnecessary has evolved. Indeed, the importance of the temporal factor has diminished.\nAs Professor Myres McDougal explained in 1963, referring to the necessity prong of\nthe Caroline test: \xe2\x80\x9c[T]he understanding is now widespread that a test formulated in\nthe previous century for a controversy between two friendly states is hardly relevant\n\n42\nThe ICJ found that, because the dangers cited by Hungary were uncertain, the alleged peril was\nnot \xe2\x80\x9cimminent.\xe2\x80\x9d Id. at 42-45 \xc2\xb6\xc2\xb6 55-56.\n\n183\n\n227-329 VOL_26_PROOF.pdf 193\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nto contemporary controversies, involving high expectations of violence, between\nnuclear-armed protagonists.\xe2\x80\x9d McDougal, Soviet-Cuban Quarantine, 57 Am. J. Int\xe2\x80\x99l\nL. at 598; see also Mallison, Limited Naval Blockade or Quarantine-Interdiction, 31\nGeo. Wash. L. Rev. at 348 (\xe2\x80\x9cIn the contemporary era of nuclear and thermo-nuclear\nweapons and rapid missile delivery techniques, Secretary Webster\xe2\x80\x99s formulation\ncould result in national suicide if it actually were applied instead of merely repeated.\xe2\x80\x9d). Similarly, a supplement to the U.S. Navy\xe2\x80\x99s Commander\xe2\x80\x99s Handbook on the\nLaw of Naval Operations explains that Daniel Webster\xe2\x80\x99s requirement of immediacy\nis \xe2\x80\x9ctoo restrictive today, particularly given the nature and lethality of modern\nweapons systems which may be employed with little, if any, warning.\xe2\x80\x9d Oceans Law\nand Policy Dep\xe2\x80\x99t, Naval War College, Annotated Supplement to the Commander\xe2\x80\x99s\nHandbook on the Law of Naval Operations 4-13 \xc2\xb6 4.3.2.1 n.32 (1997) (\xe2\x80\x9cCommander\xe2\x80\x99s Handbook Supplement\xe2\x80\x9d), available at http://www.fichl.org/uploads/media/\nUS_Navy_Commander_s_Handbook_Annotated_Supplement_1997.pdf (last visited\nJune 4, 2012). Nor does the Caroline test take into account the modern realities of\ninternational terrorism: \xe2\x80\x9c[T]he traditional theories of customary international law\nwere developed in a completely different era, with no concern for the danger\npresented by a modern well-financed terrorist organization in a world of chemical,\nbiological, and nuclear weapons capable of horrific destruction, and yet portable by a\nsingle individual. A terrorist \xe2\x80\x98war\xe2\x80\x99 does not consist of a massive attack across an\ninternational border . . . .\xe2\x80\x9d Gregory M. Travalio, Terrorism, International Law, and\nthe Use of Military Force, 18 Wis. Int\xe2\x80\x99l L.J. 145, 173 (2000).\n3. State Practice\nState practice since the development of nuclear weapons and sophisticated\ndelivery systems confirms the evolution of the degree of imminence and proportionality that would justify the use of force in self-defense. Such practice is\nrelevant because it is the source of customary international law. See supra\nPart III.A.3.\na. Cuban Missile Crisis\nDuring the Cuban Missile Crisis, for example, this Office adopted a more\nelastic concept of necessity than that articulated in the Caroline test. In that case,\nwe labeled the secret establishment of long-range nuclear missile bases in Cuba by\nthe Soviet Union as an \xe2\x80\x9cimmediate threat\xe2\x80\x9d to U.S. security and found that the\nimposition of a blockade of offensive military equipment to Cuba was a justifiable\nact of self-defense. Memorandum, Office of Legal Counsel, Re: Summary of Legal\nJustification of Quarantine of Shipment of Offensive Weapons and Material to\n\n184\n\n227-329 VOL_26_PROOF.pdf 194\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nCuba at 1 (Oct. 23, 1962) (unsigned) (\xe2\x80\x9cCuba Quarantine Memorandum\xe2\x80\x9d); 43 see\nalso Proclamation 3504: Interdiction of the Delivery of Offensive Weapons to\nCuba, Pub. Papers of Pres. John F. Kennedy 809, 810 (Oct. 23, 1962) (ordering\nU.S. Armed Forces to interdict offensive weapons and associated materiel en route\nto Cuba \xe2\x80\x9cto defend the security of the United States\xe2\x80\x9d); White House Statement on\nSoviet Proposals Relating to International Security, Pub. Papers of Pres. John F.\nKennedy 813, 813 (Oct. 27, 1962) (describing threat as \xe2\x80\x9cimmediate\xe2\x80\x9d); McDougal,\nSoviet-Cuban Quarantine, 57 Am. J. Int\xe2\x80\x99l L. at 601-03. But cf. Abram Chayes,\nLegal Adviser to the Secretary of State, The Legal Case for U.S. Action on Cuba,\n47 Dep\xe2\x80\x99t St. Bull. 763, 764-65 (Nov. 1962) (arguing that the quarantine was\njustified because it was taken in accordance with a resolution of the Organization\nof American States and observing that \xe2\x80\x9c[t]he quarantine action was designed to\ndeal with an imminent threat to our security\xe2\x80\x9d; \xe2\x80\x9c[b]ut the President . . . did not\ninvoke article 51 or the right of self-defense\xe2\x80\x9d); Commander\xe2\x80\x99s Handbook Supplement at 41-13 \xc2\xb6 4.3.2.1 n.31 (U.S. government characterized Cuba quarantine as a\nsanction imposed under article 52 of the U.N. Charter rather than as self-defense).\nThe presence of nuclear weapons in the Cuban Missile Crisis changed the\nconception of the right to self-defense. Although the sudden and secret preparation\nof the missile bases undoubtedly \xe2\x80\x9cadd[ed] to an already clear and present danger,\xe2\x80\x9d\nRadio and Television Report to the American People on the Soviet Arms Buildup\nin Cuba, Pub. Papers of Pres. John F. Kennedy 806, 807 (Oct. 22, 1962), their\npositioning in Cuba constituted a less immediate temporal threat of armed attack\non the United States than that contemplated by previous applications of the\nCaroline test because there was no indication that the Soviet Union would use\nthem either immediately, or even in the near term. 44 President Kennedy explained\nour more elastic concept of imminence:\nWe no longer live in a world where only the actual firing of weapons\nrepresents a sufficient challenge to a nation\xe2\x80\x99s security to constitute\nmaximum peril. Nuclear weapons are so destructive and ballistic\nmissiles are so swift, that any substantially increased possibility of\ntheir use . . . may well be regarded as a definite threat to peace.\n\n43\nThe opinion also focused on additional factors for justifying the blockade: it would not violate\narticle 2(4) of the U.N. Charter because it would not threaten the territorial integrity or political\nindependence of Cuba; it did not qualify under international law as an act of war; and it qualified as\naction under a regional arrangement sanctioned by article 52 of the U.N. Charter. Cuba Quarantine\nMemorandum at 2-4.\n44\nIndeed, some commentators argue that in 1962 a direct Soviet attack would have been \xe2\x80\x9cinconceivable\xe2\x80\x9d because the nuclear balance of power so highly favored the United States. See Stanimir A.\nAlexandrov, Self-Defense Against the Use of Force in International Law 158-59 (1996).\n\n185\n\n227-329 VOL_26_PROOF.pdf 195\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nId. As the President articulated, as the magnitude of the possible harm caused by\nan attack increases, the probability that the attack will occur may be reduced and\nstill justify an exercise of the right to anticipatory self-defense. 45\nb. Osirak Reactor Strike\nThe analysis becomes more complicated, however, when the threat of attack\ncomes not from deployable nuclear weapons, but from fixed facilities engaged in\nthe production of WMD. In that situation, the potential harm that would be caused\nby an attack remains high, but the probability that it will occur is more remote. In\n1981, for example, Israel attacked a nuclear reactor under construction in Iraq,\nclaiming that the strike was justified as anticipatory self-defense because the\nreactor was intended to manufacture nuclear bombs and very soon would have\nbecome operational. Israel also emphasized the limited window of opportunity in\nwhich to strike\xe2\x80\x94once the reactor became operational, an attack would have been\nimpossible because it could not have been carried out without exposing the\ninhabitants of Baghdad to extensive lethal radioactive fallout. See U.N. SCOR,\n2280th mtg. at 10-11, \xc2\xb6 95, U.N. Doc. S/PV.2280 (June 12, 1981) (statement of\nIsraeli Ambassador to the U.N.). Nonetheless, the international community,\nincluding the United States, condemned the Israeli attack. President Reagan\xe2\x80\x99s\ndispleasure, however, appears to have been centered on Israel\xe2\x80\x99s failure to consider\nother options. He acknowledged that Israel may have genuinely viewed its actions\nas self-defense. See The President\xe2\x80\x99s News Conference, Pub. Papers of Pres.\nRonald Reagan 519, 520 (June 10, 1981); see also Statement and Remarks by the\nDepartment of State Spokesman (Fischer) at the Daily Press Briefing (June 8,\n1981), reprinted in Am. Foreign Pol\xe2\x80\x99y Current Documents 1981, Doc. 301, at 684\n(1984) (\xe2\x80\x9cThe United States Government condemns the reported Israeli air strike on\nthe Iraqi nuclear facility, the unprecedented character of which cannot but\nseriously add to the already tense situation in the area.\xe2\x80\x9d).\nTwo weeks after the raid, the Security Council unanimously adopted a resolution \xe2\x80\x9c[s]trongly condemn[ing]\xe2\x80\x9d the Israeli strikes as a \xe2\x80\x9cclear violation of the\nCharter of the United Nations and the norms of international conduct.\xe2\x80\x9d S.C. Res.\n487, \xc2\xb6 1, U.N. Doc. S/RES/487 (June 19, 1981). Several members of the Security\nCouncil quoted the Caroline test and argued that the attack did not meet the\nrequirements for necessity, noting in particular that Israel had spent several\nmonths planning for the attack. See Martin A. Rogoff & Edward Collins, Jr., The\nCaroline Incident and the Development of International Law, 16 Brook. J. Int\xe2\x80\x99l L.\n493, 508-09 (1990). The Israeli Ambassador to the United Nations disagreed,\n45\nFor a discussion of the legality of the U.S. blockade, compare Cuba Quarantine Memorandum\nand McDougal, Soviet-Cuban Quarantine, 57 Am. J. Int\xe2\x80\x99l L. 597 (Cuba quarantine was justified as\nself-defense), with Quincy Wright, The Cuban Quarantine, 57 Am. J. Int\xe2\x80\x99l L. 546 (1963) (quarantine\nwas not lawful act of self defense due to lack of an armed attack).\n\n186\n\n227-329 VOL_26_PROOF.pdf 196\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nclaiming that \xe2\x80\x9c[t]o assert the applicability of the Caroline principles to a State\nconfronted with the threat of nuclear destruction would be an emasculation of that\nState\xe2\x80\x99s inherent and natural right of self-defence.\xe2\x80\x9d U.N. SCOR, 2288th mtg. at 10,\n\xc2\xb6 80, U.N. Doc. S/PV.2288 (June 19, 1981). The United States voted for the\nresolution, with the caveat that it was imperfect, and that the U.S. determination\nthat the strike violated the U.N. Charter was \xe2\x80\x9cbased solely on the conviction that\nIsrael failed to exhaust peaceful means for the resolution of this dispute.\xe2\x80\x9d Id. at 16,\n\xc2\xb6 157; cf. Abraham D. Sofaer, The Sixth Annual Waldemar A. Solf Lecture in\nInternational Law: Terrorism, the Law, and the National Defense, 126 Mil. L.\nRev. 89, 109 (1989) (writing as Legal Adviser to the Secretary of State) (noting\n\xe2\x80\x9cabsence of any evidence that Iraq had launched or was planning to launch an\nattack that could justify Israel\xe2\x80\x99s use of force\xe2\x80\x9d). 46\nc. 1986 Strike Against Libya\nLike the development of nuclear weapons, the rise in international terrorism has\nresulted in an expansion of the concept of imminence. For example, one aspect of\nthe U.S. justification for the air strikes of April 14, 1986 against terrorist-related\ntargets in Libya was the doctrine of anticipatory self-defense. The strikes were\nprompted in part by the terrorist bombing of the La Belle discotheque in Berlin on\nApril 5, which was frequented by U.S. military personnel. The blast killed two\npeople, including an American soldier, and injured over two hundred others, fifty\nof whom were Americans. President Reagan cited conclusive evidence that Libya\nhad planned and executed the Berlin bombing, Address to the Nation on the\nUnited States Air Strike Against Libya, 1 Pub. Papers of Pres. Ronald Reagan\n468 (Apr. 14, 1986), which was only the most recent in a long line of terrorist\nattacks against U.S. installations, diplomats, and citizens supported and directed\nby Muammar Qadhafi. 47 Id. at 468-69; see generally President\xe2\x80\x99s Authority to\nConduct Military Operations, 25 Op. O.L.C. at 208-09 (listing attacks by Libya on\nU.S. interests). Several of these attacks had been planned to occur in the weeks\nimmediately preceding the La Belle bombing. In addition, the United States had\n\n46\nFor a discussion of the legality of the Osirak attack, compare Timothy L.H. McCormack, SelfDefense in International Law: The Israeli Raid on the Iraqi Nuclear Reactor (1996) (attack justified),\nand Anthony D\xe2\x80\x99Amato, Israel\xe2\x80\x99s Air Strike Against the Osiraq Reactor: A Retrospective, 10 Temp. Int\xe2\x80\x99l\n& Comp. L.J. 259 (1996) (not justified as anticipatory self-defense but because Israel was acting as\nproxy for international community), with W. Thomas Mallison & Sally V. Mallison, The Israeli Attack\nof June 7, 1981, Upon the Israeli Nuclear Reactor: Aggression and Self-Defense?, 15 Vand. J.\nTransnat\xe2\x80\x99l L. 417 (1982) (attack not justified).\n47\nOne of these attacks involved the firing by Libya of surface-to-air missiles at U.S. aircraft flying\nover international waters in the Gulf of Sidra. U.S. Armed Forces responded by taking \xe2\x80\x9climited\nmeasures of self-defense necessary to protect themselves from continued attack.\xe2\x80\x9d Letter to the Speaker\nof the House of Representatives and the President Pro Tempore of the Senate on the Gulf of Sidra\nIncident, 1 Pub. Papers of Pres. Ronald Reagan 406, 406 (Mar. 26, 1986).\n\n187\n\n227-329 VOL_26_PROOF.pdf 197\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nclear evidence that Libya was planning a \xe2\x80\x9cmultitude\xe2\x80\x9d of future attacks. U.N.\nSCOR, 2674th mtg. at 17, U.N. Doc. S/PV.2674 (Apr. 15, 1986) (statement of\nAmbassador Vernon A. Walters, U.S. Permanent Representative to the United\nNations) (\xe2\x80\x9cWalters Statement\xe2\x80\x9d).\nThe United States explained that the strikes on Libya were undertaken in selfdefense and were fully consistent with article 51. See Address to the Nation on the\nUnited States Air Strike Against Libya, 1 Pub. Papers of Pres. Ronald Reagan\n468, 469 (Apr. 16, 1986) (\xe2\x80\x9cSelf-defense is not only our right, it is our duty.\xe2\x80\x9d);\nLetter to the Speaker of the House of Representatives and the President Pro\nTempore of the Senate on the United States Air Strike Against Libya, 1 Pub.\nPapers of Pres. Ronald Reagan 478 (Apr. 16, 1986); see also U.N. Doc. S/17990\n(Apr. 14, 1986) (\xe2\x80\x9cThe Libyan policy of threats and use of force is in clear violation\nof Article 2(4) of the United Nations Charter. It has given rise to the entirely\njustifiable response by the U.S.\xe2\x80\x9d). We justified the strikes in large part as anticipatory self-defense. 48 President Reagan argued that the primary objective of the U.S.\nstrikes was to forestall future terrorist attacks on the United States: \xe2\x80\x9cThis necessary and appropriate action was a preemptive strike, directed against the Libyan\nterrorist infrastructure and designed to deter acts of terrorism by Libya, such as the\nLibyan-ordered bombing of a discotheque in West Berlin on April 5 [1986].\xe2\x80\x9d\nLetter to the Speaker of the House of Representatives and the President Pro\nTempore of the Senate on the United States Air Strike Against Libya, 1 Pub.\nPapers of Pres. Ronald Reagan 478, 478 (Apr. 16, 1986); see also Walters\nStatement at 14-15 (strikes were designed to disrupt Libya\xe2\x80\x99s ability to carry out\nterrorist acts and to deter future such acts). In addition to the threat of future\nLibyan-sponsored terrorist attacks, the United States pointed to the exhaustion of\nnonmilitary remedies as meeting the customary international law standard of\nnecessity. Address to the Nation on the United States Air Strike Against Libya,\n1 Pub. Papers of Pres. Ronald Reagan 468, 469 (Apr. 14, 1986) (\xe2\x80\x9cWe always seek\npeaceful avenues before resorting to the use of force\xe2\x80\x94and we did. We tried quiet\ndiplomacy, public condemnation, economic sanctions, and demonstrations of\nmilitary force. None succeeded.\xe2\x80\x9d). Moreover, President Reagan emphasized that\nthe strikes were proportional\xe2\x80\x94the targets \xe2\x80\x9cwere carefully chosen, both for their\ndirect linkage to Libyan support of terrorist activities and for the purpose of\nminimizing collateral damage and injury to innocent civilians.\xe2\x80\x9d Letter to the\n\n48\nThe United States also justified the strikes as a response to what amounted to an armed attack by\nLibya on U.S. citizens. Address to the Nation on the United States Air Strike Against Libya, 1 Pub.\nPapers of Pres. Ronald Reagan 468, 469 (Apr. 14, 1986). Even before the La Belle bombing, President\nReagan had argued that Libya\xe2\x80\x99s provision of material support to terrorist groups that attack U.S.\ncitizens amounted to armed aggression under established principles of international law. The\nPresident\xe2\x80\x99s News Conference, 1 Pub. Papers of Pres. Ronald Reagan 17 (Jan. 7, 1986); see also\nAddress of Secretary of State George Shultz, Low-Intensity Warfare: The Challenge of Ambiguity, 86\nDep\xe2\x80\x99t St. Bull. 15, 17 (Mar. 1986).\n\n188\n\n227-329 VOL_26_PROOF.pdf 198\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nSpeaker of the House of Representatives and the President Pro Tempore of the\nSenate on the United States Air Strike Against Libya, 1 Pub. Papers of Pres.\nRonald Reagan 478, 478 (Apr. 16, 1986). Although several countries criticized the\nU.S. strikes, supporting a UNSCR condemning the attack as a violation of the\nU.N. Charter, Australia, Denmark, France, and Britain and Northern Ireland joined\nthe United States in vetoing the resolution. U.N. SCOR, 2682nd mtg., U.N. Doc.\nS/PV.2682 (Apr. 21, 1986). 49\nd. 1989 Intervention in Panama\nThe United States again responded in self-defense to an imminent threat to U.S.\nlives when it took military action in Panama on December 20, 1989. Shortly\nbefore the U.S. military action, Panama\xe2\x80\x99s National Assembly of Representatives (a\n510-member body appointed by General Manuel Noriega) had declared that a state\nof war existed between Panama and the United States, and General Noriega had\ndelivered an inflammatory anti-American speech. A few days earlier, Panamanian\narmed forces had killed an unarmed U.S. Marine officer, beat an unarmed U.S.\nNaval officer, and physically abused and threatened the Navy officer\xe2\x80\x99s wife. The\ncombination of \xe2\x80\x9cGeneral Noriega\xe2\x80\x99s reckless threats and attacks upon Americans in\nPanama [had] created an imminent danger to the 35,000 American citizens in\nPanama.\xe2\x80\x9d Address to the Nation Announcing United States Military Action in\nPanama, 2 Pub. Papers of Pres. George Bush 1722, 1723 (Dec. 20, 1989). As\nPresident Bush explained: \xe2\x80\x9cThe deployment of U.S. Forces is an exercise of the\nright of self-defense recognized in Article 51 of the United Nations Charter and\nwas necessary to protect American lives in imminent danger . . . .\xe2\x80\x9d Letter to the\nSpeaker of the House of Representatives and the President Pro Tempore of the\nSenate on United States Military Action in Panama, 2 Pub. Papers of Pres.\nGeorge Bush 1734, 1734 (Dec. 21, 1989). According to the State Department\nspokesperson, the \xe2\x80\x9cright of self-defense entitles the United States to take necessary\nmeasures to defend U.S. military personnel, U.S. nationals, and U.S. installations.\xe2\x80\x9d\nMarian Nash Leich, Contemporary Practice of the United States Relating to\nInternational Law: Use of Force, 84 Am. J. Int\xe2\x80\x99l L. 545, 548 (1990). 50 The United\n\n49\nFor a discussion of the legality of the strikes, compare Sofaer, Terrorism, the Law, and the\nNational Defense, 126 Mil. L. Rev. 89 (strikes justified as self-defense), and Major Wallace F.\nWarriner, The Unilateral Use of Coercion Under International Law: A Legal Analysis of the United\nStates Raid on Libya on April 14, 1986, 37 Naval L. Rev. 49 (1988) (same), and Gregory Francis\nIntoccia, American Bombing of Libya: An International Legal Analysis, 19 Case W. Res. J. Int\xe2\x80\x99l L. 177\n(1987) (same), with Major Michael Lacey, Self-Defense or Self-Denial: The Proliferation of Weapons\nof Mass Destruction, 10 Ind. Int\xe2\x80\x99l & Comp. L. Rev. 293 (2000) (attacks not justified as self-defense),\nand Christopher Greenwood, International Law and the United States\xe2\x80\x99 Air Operation Against Libya, 89\nW. Va. L. Rev. 933 (1987) (attacks probably not justified as self-defense).\n50\nThe United States also justified its actions as self-defense resulting from the armed attacks\nagainst U.S. citizens. U.N. Doc. S/21035 (Dec. 20, 1989). In addition to protecting U.S. citizens, the\n\n189\n\n227-329 VOL_26_PROOF.pdf 199\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nStates noted that they had \xe2\x80\x9cexhausted every available diplomatic means to resolve\npeacefully disputes with Mr. Noriega, who has rejected all such efforts.\xe2\x80\x9d U.N.\nDoc. S/21035 (Dec. 20, 1989). The United States assured the Security Council that\nthe use of force would be proportionate, id., and President Bush chose removing\nNoriega from power as the only way to protect U.S. citizens in Panama. Cf.\nAbraham D. Sofaer, The Legality of the United States Action in Panama, 29\nColum. J. Transnat\xe2\x80\x99l L. 281, 290 (1991). In the midst of the fighting, the Security\nCouncil considered a draft resolution that would have labeled the invasion as \xe2\x80\x9ca\nflagrant violation of international law,\xe2\x80\x9d but Great Britain, France, and Canada\njoined the United States in vetoing the resolution. U.N. Doc. S/21048 (Dec. 22,\n1989); U.N. SCOR, 2902nd mtg., U.N. Doc. S/PV.2902 (Dec. 23, 1989). 51\ne. 1993 Strike Against Iraq\nThe United States justified the June 1993 strike on Iraqi intelligence service\nheadquarters, which was undertaken in response to \xe2\x80\x9ccompelling evidence\xe2\x80\x9d that\nIraq had attempted to assassinate President George H.W. Bush two months earlier,\nas an exercise of the inherent right of self-defense as recognized in article 51 of the\nUnited Nations Charter. Letter to Congressional Leaders on the Strike on Iraqi\nIntelligence Headquarters, 1 Pub. Papers of Pres. William J. Clinton 940, 940\n(June 28, 1993). President Clinton explained the necessity for U.S. action:\nThe evidence of the Government of Iraq\xe2\x80\x99s violence and terrorism\ndemonstrates that Iraq poses a continuing threat to United States\nnationals and shows utter disregard for the will of the international\ncommunity as expressed in Security Council Resolutions and the\nUnited Nations Charter. Based on the Government of Iraq\xe2\x80\x99s pattern\nof disregard for international law, I concluded that there was no\nreasonable prospect that new diplomatic initiatives or economic\nmeasures could influence the current Government of Iraq to cease\nplanning future attacks against the United States.\n\ninvasion had three other objectives: (1) helping to restore democracy in Panama, (2) protecting the\nintegrity of the Panama Canal Treaties, and (3) bringing Noriega to justice. See Ved P. Nanda, The\nValidity of United States Intervention in Panama Under International Law, 84 Am. J. Int\xe2\x80\x99l L. 494, 494\n(1990) (quoting a statement by President Bush on January 3, 1990).\n51\nFor a discussion of the legality of the U.S. military action, compare Louis Henkin, The Invasion\nof Panama Under International Law: A Gross Violation, 29 Colum. J. Transnat\xe2\x80\x99l L. 293 (1991)\n(intervention violated international law), and Ved P. Nanda, The Validity of United States Intervention\nin Panama Under International Law, 84 Am. J. Int\xe2\x80\x99l L. 494 (1990) (U.S. intervention in Panama\nviolated international law on the use of force, in part because it failed to show necessity), and Tom J.\nFarer, Panama: Beyond the Charter Paradigm, 84 Am. J. Int\xe2\x80\x99l L. 503 (1990), with Abraham D. Sofaer,\nThe Legality of the United States Action in Panama, 29 Colum. J. Transnat\xe2\x80\x99l L. 281 (1991) (U.S. action\ndid not violate Article 2(4) of the U.N. Charter).\n\n190\n\n227-329 VOL_26_PROOF.pdf 200\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nId. 52 The objective of the strikes was to diminish Iraq\xe2\x80\x99s capability to support\nviolence against the United States and others, and \xe2\x80\x9cto deter Saddam Hussein from\nsupporting such outlaw behavior in the future.\xe2\x80\x9d Address to the Nation on the\nStrike on Iraqi Intelligence Headquarters, 1 Pub. Papers of Pres. William J.\nClinton 938, 938 (June 26, 1993). 53 President Clinton described the strikes as\n\xe2\x80\x9climited and proportionate.\xe2\x80\x9d Letter to Congressional Leaders, 1 Pub. Papers of\nPres. William J. Clinton at 941 (June 28, 1993). The reaction of the Security\nCouncil was largely favorable, and its members rejected the plea of the Iraqi\nambassador that the Council condemn the U.S. action as an act of aggression\nagainst Iraq. See Julia Preston, Security Council Reaction Largely Favorable to\nU.S. Raid, Wash. Post, June 28, 1993, at A12. 54\nf. 1998 Attack on Afghanistan and Sudan\nOn August 7, 1998, terrorists bombed the U.S. embassies in Kenya and Tanzania, killing over 250 people, including twelve Americans. Two weeks later, based\non \xe2\x80\x9cconvincing information from a variety of reliable sources\xe2\x80\x9d that the Osama bin\nLaden organization was responsible for these bombings, the United States\nlaunched cruise missile attacks against terrorist training camps and installations in\nAfghanistan used by that organization and against a facility in Sudan being used to\nproduce materials for chemical weapons. Letter to Congressional Leaders\nReporting on Military Action Against Terrorist Sites in Afghanistan and Sudan,\n2 Pub. Papers of Pres. William J. Clinton 1464 (Aug. 21, 1998). President Clinton\nexplained the international law justification for the strikes:\n\n52\nThe strikes were also justified as a response to an attack against the United States. See Address to\nthe Nation on the Strike on Iraqi Intelligence Headquarters, 1 Pub. Papers of Pres. William J. Clinton\n938, 938 (June 26, 1993) (\xe2\x80\x9cthe Iraqi attack against President Bush was an attack against our country\nand against all Americans\xe2\x80\x9d).\n53\nSimilarly, the January 17, 1993 strike on a nuclear facility in Baghdad, while primarily designed\nto encourage Iraq to comply with its obligations under UNSCRs, was undertaken in part to prevent the\nfacility from being used again to support Iraq\xe2\x80\x99s nuclear weapons program. See Letter to Congressional\nLeaders Reporting on Iraq\xe2\x80\x99s Compliance with United Nations Security Council Resolutions, 2 Pub.\nPapers of Pres. George Bush 2269, 2269-70 (Jan. 19, 1993).\n54\nFor a discussion of the legality of the U.S. strikes, compare Robert F. Teplitz, Note, Taking\nAssassination Attempts Seriously: Did the United States Violate International Law in Forcefully\nResponding to the Iraqi Plot to Kill George Bush?, 28 Cornell Intl\xe2\x80\x99l L.J. 569, 606-07 (1995) (U.S.\naction was a legitimate use of force in self-defense), with Ryan C. Hendrickson, Article 51 and the\nClinton Presidency: Military Strikes and the U.N. Charter, 19 B.U. Int\xe2\x80\x99l L. J. 207 (2001) (1993 strikes\ndid not satisfy requirements of anticipatory self-defense), and John Quigley, Missiles With a Message:\nThe Legality of the United States Raid on Iraq\xe2\x80\x99s Intelligence Headquarters, 17 Hastings Int\xe2\x80\x99l & Comp.\nL. Rev. 241 (1994) (same), and Dino Kritsiotis, The Legality of the 1993 US Missile Strike on Iraq and\nthe Right of Self-Defence in International Law, 45 Int\xe2\x80\x99l & Comp. L.Q. 162 (1996) (impossible to\ndetermine legality of strikes).\n\n191\n\n227-329 VOL_26_PROOF.pdf 201\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nThe United States acted in exercise of our inherent right of selfdefense consistent with Article 51 of the United Nations Charter.\nThese strikes were a necessary and proportionate response to the\nimminent threat of further terrorist attacks against U.S. personnel\nand facilities. These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat.\nId.; see also Remarks in Martha\xe2\x80\x99s Vineyard, Massachusetts, on Military Action\nAgainst Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers of Pres. William\nJ. Clinton 1460 (Aug. 20, 1998) (noting the existence of \xe2\x80\x9ccompelling information\xe2\x80\x9d\nthat additional terrorist attacks against U.S. citizens were being planned, and that\nthe groups affiliated with bin Laden were seeking to acquire chemical and other\ndangerous weapons). As Professor Wedgwood recognized: \xe2\x80\x9cEven by the demanding test of the Caroline . . . the danger of renewed assault [by bin Laden\xe2\x80\x99s\nnetwork] justified immediate action.\xe2\x80\x9d Ruth Wedgwood, Responding to Terrorism:\nThe Strikes Against bin Laden, 24 Yale J. Int\xe2\x80\x99l L. 559, 565 (1999). In its report to\nthe Security Council after the strikes, the United States emphasized that the attacks\nwere undertaken only after repeated warnings to Afghanistan and Sudan that they\nmust stop harboring and supporting terrorist groups such as bin Laden\xe2\x80\x99s organization. U.N. Doc. S/1998/780 (Aug. 20, 1998). 55 The response of the international\ncommunity was mixed, but the Security Council took no formal action in response\nto the attacks. See Jack M. Beard, America\xe2\x80\x99s New War on Terror: The Case for\nSelf-Defense Under International Law, 25 Harv. J.L. & Pub. Pol\xe2\x80\x99y 559, 563-64\n(2002). 56\nIn sum, recent practice demonstrates that the United States has used force in\nresponse to a threat of aggression that is less imminent in the temporal sense than\ndescribed by Secretary Webster over 150 years ago. Rapid advances in weapons\ntechnology have changed the calculus, in large part because a state cannot defend\nitself if it waits until such weapons are launched.\nThe new threat of nuclear weapons apparently is not, however, sufficient to\nerase completely any requirement of temporality. For example, the international\ncommunity did not consider the threat posed by an Iraqi nuclear reactor before it\nhad become operational to be sufficient to justify its destruction by Israel in 1981.\nNonetheless, the backdrop against which the threat to Israel was evaluated has\nchanged significantly in the past twenty years. In 1981, Iraq was permitted to have\n55\n\nThe United States also justified the strikes as a response in self-defense to the embassy attacks.\n\nId.\n56\nFor a discussion of the legality of the U.S. strikes, compare Wedgwood, Responding to Terrorism, 24 Yale J. Int\xe2\x80\x99l L. 559 (1998 strikes justified as proportionate self-defense), and Hendrickson,\nArticle 51 and the Clinton Presidency, 19 B.U. Int\xe2\x80\x99l L.J. 207 (attacks justified under Article 51), with\nJules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 Yale J. Int\xe2\x80\x99l L. 537 (1999) (attacks not justified).\n\n192\n\n227-329 VOL_26_PROOF.pdf 202\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nnuclear materials under the safeguards of the IAEA, and Saddam Hussein had not\nyet used chemical weapons against Iran and his own people, militarily invaded an\ninnocent neighbor, or spent over a decade flouting his country\xe2\x80\x99s international\nobligations to destroy and cease to develop WMD and their means of delivery. In\nother words, the imminence of a likely attack by Iraq has increased since 1981\nbecause Iraq has demonstrated a WMD capability and a willingness to use it.\nMoreover, even at the time of the Osirak attack, some international law scholars\nbelieved that, were Israel\xe2\x80\x99s argument that it acted in the last window of opportunity to be true, the attack would have qualified as lawful self-defense, even if the\nmaterialization of the threat\xe2\x80\x94the development of a nuclear bomb by Iraq\xe2\x80\x94were\nas many as five years away. See The Israeli Air Strike: Hearings before the S.\nComm. on Foreign Relations, 97th Cong. 251-52 (1981) (statement of Professor\nJohn Norton Moore).\nThe rise of international terrorism, characterized by unpredictable, sporadic,\nquick strikes against civilians, see Travalio, Terrorism, International Law, and the\nUse of Military Force, 18 Wis. Int\xe2\x80\x99l L.J. at 173, similarly has expanded the\nelasticity of the imminence requirement. If a state waits until a terrorist attack is on\nthe verge of being launched, it likely will be unable to protect the civilians who are\nbeing targeted, especially in light of the mentality of suicide bombers, who are\nimmune to traditional methods of deterrence. Terrorists are also difficult to locate\nand track, and seek to escape detection by concealing themselves and their\nactivities among an innocent civilian population. As terrorists burrow more deeply\ninto the population, defensive options may become more limited. Due to these\nconsiderations, a state may need to act when it has a window of opportunity to\nprevent a terrorist attack and simultaneously minimize civilian casualties. See\nMichael N. Schmitt, State-Sponsored Assassination in International and Domestic\nLaw, 17 Yale J. Int\xe2\x80\x99l L. 609, 648 (1992). The United States acted in self-defense to\nprevent future terrorist strikes in 1986, 1993 and 1998, even though the attacks it\nsought to prevent were in the planning rather than the implementation stage. As\nSecretary of State Shultz explained in the context of the conflict with Libya in the\nmid-1980s:\nA nation attacked by terrorists is permitted to use force to prevent or\npreempt future attacks . . . . The law requires that such actions be\nnecessary and proportionate. But this nation has consistently\naffirmed the rights of states to use force in exercise of their right of\nindividual or collective self-defense.\nThe UN Charter is not a suicide pact.\nShultz, Low-Intensity Warfare, 86 Dep\xe2\x80\x99t St. Bull. at 17 (Mar. 1986).\nFinally, we note that U.S. military action in Panama, which was not in response\nto the threat of WMD or international terrorism, demonstrates that the degree of\n\n193\n\n227-329 VOL_26_PROOF.pdf 203\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nimminence required to justify the use of force in self-defense has broadened even\nin response to conventional threats. Although the attacks by Panamanian forces on\nunarmed U.S. military personnel and Noriega\xe2\x80\x99s anti-American rhetoric indicated\nthat future attacks on the 35,000 Americans in Panama were likely, the threat does\nnot appear to have been one that was \xe2\x80\x9cinstant, overwhelming, leaving no choice of\nmeans, and no moment of deliberation.\xe2\x80\x9d Webster Letter at 159. The Panama\nprecedent also reveals that, when using force in self-defense, the removal of a\nworld leader from power, or \xe2\x80\x9cregime change,\xe2\x80\x9d may be a proportionate response to\nthe threat posed by that leader.\n4. The Current Test\nThe use of force in anticipatory self-defense must be necessary and proportional to the threat. As outlined above, however, we believe that, at least in the realm\nof WMD and international terrorism, the test for determining whether a threat is\nsufficiently \xe2\x80\x9cimminent\xe2\x80\x9d to render the use of force necessary at a particular point\nhas become more nuanced than Secretary Webster\xe2\x80\x99s nineteenth-century formulation. Factors to be considered include: the probability of an attack; the likelihood\nthat this probability will increase, and therefore the need to take advantage of a\nwindow of opportunity; 57 whether diplomatic alternatives are practical; 58 and the\nmagnitude of the harm that could result from the threat. See Travalio, Terrorism,\nInternational Law, and the Use of Military Force, 18 Wis. Int\xe2\x80\x99l L.J. at 172 (while\nuse of force in self-defense against terrorists need not meet the Caroline standard\nfor imminence, \xe2\x80\x9cthere must be a substantial likelihood that the threat will become\nmanifest before it can be eliminated by means other than the use of military\nforce\xe2\x80\x9d). If a state instead were obligated to wait until the threat were truly\nimminent in the temporal sense envisioned by Secretary Webster, there is a\nsubstantial danger of missing a limited window of opportunity to prevent widespread harm to civilians. As the President recently cautioned: \xe2\x80\x9cIf we wait for\nthreats to fully materialize, we will have waited too long.\xe2\x80\x9d Press Release, The\nWhite House, President Bush Delivers Graduation Speech at West Point (June 1,\n2002), available at http://georgewbush-whitehouse.archives.gov/news/releases/\n2002/06/20020601-3.html (last visited June 5, 2012). Finally, in an age of\n57\nA similar concept exists for self-defense in the individual criminal context. Many states require\nthat, in order for force to be justified as self-defense, the threat of harm must be \xe2\x80\x9cimminent.\xe2\x80\x9d That does\nnot mean, however, that the victim must wait until the final moment before a threatened harm\nmaterializes. If the harm cannot necessarily be avoided by waiting for the last moment, force may be\nused as early as is required for the victim to defend himself effectively. See 2 Paul H. Robinson,\nCriminal Law Defenses \xc2\xa7 131(c)(1) (1984).\n58\nSee McDougal & Feliciano, Law and Minimum World Public Order at 231 (The degree of\nimminence must be \xe2\x80\x9cso high . . . as to preclude effective resort by the intended victim to non-violent\nmodalities of response.\xe2\x80\x9d); Bowett, Self-Defence in International Law at 53 (force may be used in selfdefense only when no alternate means of protection are available).\n\n194\n\n227-329 VOL_26_PROOF.pdf 204\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\ntechnologically advanced delivery systems and WMD, international law cannot\nrequire that we ignore the potential harm represented by the threat.\n5. Iraq\nApplying the reformulated test for using force in anticipatory self-defense to\nthe potential use of force against Iraq reveals that it may well be reasonable for the\nPresident to determine that the threat of a WMD attack by Iraq, either directly or\nthrough Iraq\xe2\x80\x99s support for terrorism, 59 is sufficiently \xe2\x80\x9cimminent\xe2\x80\x9d to render the use\nof force necessary to protect the United States, its citizens, and its allies.\nFirst, based on Iraq\xe2\x80\x99s WMD capability and Saddam Hussein\xe2\x80\x99s previous use of\nWMD against both his enemies and his own people, the President could find that\nthere is a high probability that he will use them again. Prior to the Persian Gulf\nWar and the subsequent adoption of UNSCR 687 and the U.N. inspection regime\nin 1991, Iraq possessed a significant, extensive WMD capability. Saddam Hussein\nemployed chemical weapons against Iranian troops and civilians during the IranIraq war, and he used nerve gas against Kurdish civilians in northern Iraq in 1988,\nkilling nearly 5,000 men, women and children. See Bureau of Political Military\nAffairs, U.S. Department of State, Chronology of Events Leading to the U.S.-Led\nAttack on Iraq (Jan. 8, 1999), available at http://www.state.gov/www/regions/nea/\niraqchronyr.html (last visited June 5, 2012). Saddam Hussein also has revealed his\nwillingness to use biological weapons. See Wedgwood, Enforcement of Security\nCouncil Resolution 687, 92 Am. J. Int\xe2\x80\x99l L. 724; Report of the Secretary-General on\nthe Status of the Implementation of the Special Commission\xe2\x80\x99s Plan for the\nOngoing Monitoring and Verification of Iraq\xe2\x80\x99s Compliance with Relevant Parts of\nSection C of Security Council Resolution 687 (1991), UN Doc. S/1995/864, at\n26-27 \xc2\xb6 75(w) (Oct. 11, 1995). Moreover, Iraq attempted to assassinate former\nPresident Bush in 1993. In addition, after the September 11th attacks, the official\nIraqi news station stated that the United States was \xe2\x80\x9creaping the fruits of [its]\ncrimes against humanity.\xe2\x80\x9d U.S. Department of State, Patterns of Global Terrorism\n\n59\nThere is no question that Iraq\xe2\x80\x99s state sponsorship of terrorism violates international law. In\nresponse to the terrorist attacks of September 11, 2001, the Security Council recently reaffirmed that all\nnations have a duty to refrain from sponsoring terrorist acts in another state or even \xe2\x80\x9cacquiescing in\norganized activities within its territory directed towards the commission of such acts.\xe2\x80\x9d S.C. Res. 1373,\npmbl. \xc2\xb6 9, U.N. Doc. S/RES/1373 (Sept. 28, 2001); see also S.C. Res. 748, pmbl. \xc2\xb6 6, U.N. Doc.\nS/RES/748 (Mar. 31, 1992) (reaffirming that such a duty stems from article 2(4) of the U.N. Charter).\nAgain, in the words of Secretary Shultz:\n\nThere should be no confusion about the status of nations that sponsor terrorism\nagainst Americans and American property. There is substantial legal authority for the\nview that a state which supports terrorist or subversive attacks against another state, or\nwhich supports or encourages terrorist planning and other activities within its own territory, is responsible for such attacks.\nLow-Intensity Warfare, 86 Dep\xe2\x80\x99t St. Bull. at 17 (Mar. 1986).\n\n195\n\n227-329 VOL_26_PROOF.pdf 205\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\n2001, at 65 (May 2002) (\xe2\x80\x9cPatterns of Global Terrorism\xe2\x80\x9d), available at http://\nwww.state.gov/j/ct/rls/crt/2001/ (last visited June 5, 2012). Iraq has a long history\nof using weapons of mass destruction.\nThe Central Intelligence Agency recently assessed that Iraq has the capability\nto reinitiate its chemical weapons programs within a few weeks or months.\nCentral Intelligence Agency, Unclassified Report to Congress on the Acquisition\nof Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, 1 January Through 30 June 2001, at 3 (2002) (\xe2\x80\x9cCIA Report\xe2\x80\x9d),\navailable at https://www.cia.gov/library/reports/archived-reports-1/jan_jun2002.\nhtml (last visited June 5, 2012). In addition, the Administration has stated that it\nstrongly suspects that Iraq has used the time without U.N. inspections to\nimprove all phases of its offensive biological weapons program. See John R.\nBolton, Under Secretary of State for Arms Control and International Security,\nRemarks to the 5th Biological Weapons Convention RevCon Meeting (Nov. 19,\n2001), available at http://2001-2009.state.gov/t/us/rm/janjuly/6231.htm (last visited June 5, 2012); see also CIA Report at 4 (UNSCOM believes that Iraq\nmaintains a knowledge base and industrial infrastructure that could be used to\nproduce quickly a large number of biological agents at any time). The Intelligence Community also is concerned that Iraq is reconstituting its nuclear\nweapons program. CIA Report at 4-5. Finally, Iraq has refurbished trainer\naircraft that are believed to have been modified to deliver chemical and biological warfare agents. Id.\nSecond, although we do not have available the information regarding whether\nthe use of force against Iraq at a particular time would be necessary to take\nadvantage of a window of opportunity to prevent the threat of a WMD attack from\nmaterializing, the State Department has reported that a growing number of terrorist\ngroups are interested in acquiring and using WMD to rival the attacks of September 11. See Patterns of Global Terrorism at 66. The President could determine\nthat, were we to wait until after Iraq has transferred WMD to terrorist groups, it\nwould be very difficult to determine where and when WMD would be used, given\nthe sporadic nature of terrorist attacks and the terrorist tactic of infiltrating the\ncivilian population. Moreover, the President could reasonably conclude that\npursuing diplomatic remedies is not a practical alternative given that the United\nStates has engaged in more than a decade of unsuccessful attempts to work\nthrough the United Nations to obtain Iraqi compliance with its disarmament\nobligations under UNSCR 687.\nThird, as we have discussed earlier, the degree of harm that could result from\nIraq\xe2\x80\x99s use of WMD could well be catastrophic. The combination of the vast\npotential destructive capacity of WMD and the modest means required for their\ndelivery make them more of a threat than the military forces of many countries.\nSee Travalio, Terrorism, International Law, and the Use of Military Force, 18\nWis. Int\xe2\x80\x99l L.J. at 155; see also Wedgwood, Responding to Terrorism, 24 Yale J.\n\n196\n\n227-329 VOL_26_PROOF.pdf 206\n\n10/22/12 11:13 AM\n\n\x0cAuthority of the President to Use Military Force Against Iraq\n\nInt\xe2\x80\x99l L. at 560 (\xe2\x80\x9cThe indiscriminate nature of [biological] weapons and their\nextraordinary range of destruction multiplies the threat.\xe2\x80\x9d). Chemical weapons and\nbiological agents are easy to hide, and small quantities can have a devastating\neffect on the civilian population. Perhaps even more frightening is the tinder-box\nthat would result were Iraq to transfer WMD to terrorists.\nWe observe, therefore, that even if the probability that Iraq itself would attack\nthe United States with WMD, or would transfer such weapons to terrorists for their\nuse against the United States, were relatively low, the exceptionally high degree of\nharm that would result, combined with a limited window of opportunity and the\nlikelihood that if we do not use force, the threat will increase, could lead the\nPresident to conclude that military action is necessary to defend the United States.\nWere the President to determine that the use of force in self-defense is necessary to counter the threat posed by Iraq\xe2\x80\x99s WMD program, such force should be\nproportional; in other words, it should be limited to that which is needed to\neliminate the threat posed by Iraq. The President could reasonably determine that\nsuch proportionate response might include destruction of Iraq\xe2\x80\x99s WMD capability\nor removing Saddam Hussein from power. Finally, to the extent that the President\nwere to have credible evidence that Saddam Hussein was giving WMD to the\nterrorists responsible for the September 11th attacks, the use of force against Iraq\nalso would be justified as an exercise of self-defense expressly contemplated by\narticle 51: responding to an armed attack. There is no doubt that the events of\nSeptember 11th qualify as an \xe2\x80\x9carmed attack\xe2\x80\x9d under international law. See Sean D.\nMurphy, Terrorism and the Concept of \xe2\x80\x9cArmed Attack\xe2\x80\x9d in Article 51 of the U.N.\nCharter, 43 Harv. Int\xe2\x80\x99l L. J. 41, 47-51 (2002); cf. Wedgwood, Responding to\nTerrorism, 24 Yale J. Int\xe2\x80\x99l L. at 564 (\xe2\x80\x9c[T]he massacre of civilians and destruction\nof facilities in Kenya and Tanzania must qualify as an armed attack [warranting\nself-defense under Article 51].\xe2\x80\x9d).\nIV. Conclusion\nThe President has broad authority under domestic law to use military force\nagainst Iraq. The Constitution grants the President unilateral power to take military\naction to protect the national security interests of the United States. In the case of\nIraq, the President\xe2\x80\x99s independent constitutional authority is supplemented by\nPublic Law 102-1, Public Law 105-235, and Public Law 107-40. While congressional authorization is not needed before the President may direct the use of force\nagainst Iraq to protect our national security, were he to do so pursuant to any or all\nof these provisions, he would be acting with approval previously granted by\nCongress.\nIn addition, international law authorizes the President to use force against Iraq\non two independent grounds. First, the Security Council has authorized military\naction against Iraq to implement the terms of the cease-fire, and in response to the\n\n197\n\n227-329 VOL_26_PROOF.pdf 207\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nthreat to international peace and security caused by Iraq\xe2\x80\x99s repression of its civilian\npopulation. Due to Iraq\xe2\x80\x99s material breaches of the cease-fire, established principles\nof international law\xe2\x80\x94both treaty and armistice law\xe2\x80\x94currently permit the United\nStates to suspend its terms and use force to compel Iraqi compliance with its\ndisarmament and inspection requirements or redress any threat to international\npeace and security caused by Iraq\xe2\x80\x99s repression of its civilian population. Such a\nuse of force would be consistent with U.S. practice. Second, international law also\npermits the President to use force against Iraq in anticipatory self-defense if the\nuse of force would be both necessary due to an imminent threat, and a proportional\nresponse to that threat.\nJAY S. BYBEE\nAssistant Attorney General\nOffice of Legal Counsel\n\n198\n\n227-329 VOL_26_PROOF.pdf 208\n\n10/22/12 11:13 AM\n\n\x0c'