My former colleagues attorneys David Rivkin and Darin Bartrum have a lengthy and scholarly article in yesterday’s National Review Online arguing that both the U.N. Security Council and the U.S. Congress have already authorized the use of force to effect a regime change in Iraq. In 1990, the Security Council adopted resolutions authorizing the use of military force to drive Saddam from Kuwait and “to restore international peace and security in the area.” Rivkin and Bartram argue that, because peace and security have not been restored, the U.N. resolutions remain in place. For its part, Congress authorized the use of force to effectuate the Security Council resolutions against Iraq. Since those resolutions remain in effect, so too does the Congressional authorization. Indeed, both President Clinton and the current President Bush launched smalll-scale attacks on Iraqi targetrs under this law.
Rivkin and Bartram also contend that, even without authorization from the Security Council and the Congress, the U.S. has the right to attack Iraq. As a matter of international law, they rely on the doctrine of “anticipatory self-defense.” Perhaps the most interesting part of the article is the discussion of the historical precedents for this doctrine. They range from attacks by English warships on ports in Spain to forestall the Spanish Armada to President Kennedy’s actions during the Cuban Missile Crisis. Finally, Rivkin and Bartram refute the notion that the president can’t initiate the use of force without authorization from Congress.
Rivkin and Bartram may well be correct on the law. Politically, though, the fact remains that Congress has never endorsed a large-scale military action against Iraq under the present circumstances, as opposed to those that existed more than ten years ago. And the true justification for war has changed. Then it was Iraq’s invasion and occupation of Kuwait; now it is anticipatory self-defense. Other things being roughly equal, it is a good idea to put this matter to a vote in Congress before going to war, as the first President Bush did.
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