Army Issues New Counter-WMD Doctrine

Countering weapons of mass destruction is “an enduring mission of the U.S. Armed forces,” the US Army said last week in a new doctrinal publication.

Counter-WMD operations are defined as actions taken “against actors of concern to curtail the research, development, possession, proliferation, use, and effects of WMD, related expertise, materials, technologies, and means of delivery.”

See Combined Arms Countering Weapons of Mass Destruction, ATP 3-90.40, June 29, 2017.

The Army document does not refer to any specific countries such as North Korea.

Instead, it says generally that “Conventional forces and SOF [special operations forces] capabilities may be necessary to stop the movement of CBRN materials, WMD components and means of delivery, WMD-related personnel, or functional weapons into or out of specified areas or nations. Such actions may require boarding vessels and using search and detection capabilities to secure and seize shipments.”

Counter-WMD activities are directed not only at the weapons themselves but at the networks that produce, sponsor, fund and utilize them.

“Interacting with and engaging networks requires the use of lethal and nonlethal means to support, influence, or neutralize network members, cells, or an entire network. As part of this effort, commanders select, prioritize, and match effective means of interacting with friendly networks, influencing the neutral network, and neutralizing threat networks,” the new Army publication said.

“Commanders and staff utilize the targeting process to identify targets, determine the desired effects on those targets, predict secondary and tertiary effects, and plan lethal and nonlethal effects. This process enables the prosecution of targets to capitalize on and exploit targets of opportunity.”

OLC: President May Withhold WMD Info from Congress

Despite an explicit statutory requirement to keep Congress “fully and currently informed” about the proliferation of weapons of mass destruction, the President may withhold proliferation-related information from Congress if he determines that doing so could harm the national security, according to a sweeping opinion from the Justice Department Office of Legal Counsel (OLC) that was prepared in 2003.

The opinion, written by then-OLC deputy John C. Yoo, was released this week under the Freedom of Information Act. See Presidential Authority to Protect National Security Information, January 27, 2003.

The OLC opinion takes an uncompromising view of presidential authority. It reviews multiple statutes that mandate disclosure of various types of information to Congress, including requirements to report on WMD proliferation and to keep the intelligence committees “fully and currently informed of all intelligence activities.” It then concludes that those statutes cannot override, modify or limit the President’s constitutional prerogatives.

“Despite Congress’s extensive powers under the Constitution, its authorities to legislative [sic] and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security,” the OLC opinion said.

Even to a layman, the Yoo opinion seems muddled and poorly argued, in several respects.

*    Yoo claims that the statute requiring reporting of WMD proliferation was obviated by a signing statement issued by President Clinton in 1999. “In signing the legislation, President Clinton stated that section 1131 and similar provisions raised serious constitutional questions.” But upon examining the text of that 1999 signing statement, one finds that Clinton did not mention section 1131 at all, and the President’s comments there have no bearing on WMD proliferation or congressional reporting requirements.

*    Yoo uses the word “disclosure” throughout the opinion to refer to classified reporting to Congress, which excludes public release of the information. At no point does he try to explain how such reporting through classified channels “could harm the national security” if the information never became public.

*    Yoo does not acknowledge or mention the Supreme Court’s 1952 Youngstown decision which addressed Presidential authority in the face of contrary statutory imperatives: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To sustain his position, Yoo cannot admit the existence of any relevant constitutional powers of Congress, since those would diminish the President’s freedom of action.

*    Yoo does allow that “the President can disclose such information as a matter of inter-branch comity to members of Congress of his choosing when he judges it consistent with the national security.” But this is incoherent, even by Yoo’s own lights, since whenever disclosure is consistent with national security, the President’s authority to withhold it evaporates. Then disclosure to Congress would not be a matter of comity at all, but a binding requirement.

The six page OLC opinion does have some positive features.

*    It was prompted by an inquiry to OLC from then-White House Counsel Alberto R. Gonzales as to “whether the President has the constitutional authority to withhold sensitive national security information from Congress involving the proliferation of weapons of mass destruction by other nations.” So the very fact of the inquiry is an indication that the authority to withhold was not self-evident even to the George W. Bush White House.

*    The opinion discloses the title of at least one previously unknown OLC opinion on Congressional Notification for Certain Special Operations (November 1, 2002).

It is unclear whether the 2003 Yoo OLC opinion has had any enduring impact or influence on executive branch policy.

The first known public reference to the opinion appeared in a declassified version of the 2009 Joint Inspector General report on the President’s Surveillance Program (Stellar Wind) that was obtained by the New York Times this year in response to a FOIA lawsuit.

Footnote 192 on page 167 of the DOJ volume of the Joint Report (p. 504 in the NYT PDF) reads in part: “Citing… a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, ‘including authority to determine the extent to which disclosure may be made outside the Executive Branch’.”

The reference to the 2003 OLC opinion was first noticed by Marcy Wheeler last May.

In its response to a Freedom of Information Act request, the Office of Legal Counsel said that the 2003 Yoo opinion “is protected by the deliberative process and attorney-client privileges and [is] exempt from mandatory disclosure pursuant to FOIA Exemption Five.”

Nevertheless, wrote OLC Special Counsel Paul P. Colborn, “we are releasing it to you as a matter of discretion.”

Avoiding Needless Wars, Part 9: Iraq

Powell-anthrax-vialThe two reasons given for invading Iraq in 2003 were baseless: Saddam Hussein’s WMDs were illusory, as were his connections to al Qaeda. While this needless war is often attributed to an intelligence failure, we all are at fault. Our elected officials failed to ask the questions they should have before going to war. So did our media. And so did we, the citizens who hold the ultimate power of the ballot box. The drumbeat to war hypnotized the nation, overcame rationality, and led to disaster.

Secretary of State Colin Powell’s Chief of Staff, Col. Lawrence Wilkerson, has called Powell’s February 2003 speech to the UN Security Council – on which Wilkerson played a significant role – “a hoax on the American people.” While he and Colin Powell were misled by CIA Director George Tenet and others, both of them had significant doubts about the CIA’s findings which they put aside, presumably because doing otherwise would have constituted political suicide. Wilkerson regrets not having done what was difficult but right:

My participation in that presentation at the UN constitutes the lowest point in my professional life. I participated in a hoax on the American people, the international community and the United Nations Security Council. How do you think that makes me feel? Thirty-one years in the United States Army and I more or less end my career with that kind of a blot on my record? That’s not a very comforting thing.

In the 2007 video documentary, Taxi to the Dark Side, Wilkerson explains part of what happened, when Ibn al Shaykh al Libi was captured in Afghanistan in November 2001:

The moment al Libi was water-boarded, he started blurting things out. Well, rather than questioning what he was saying and going into it in detail to see if what he was saying could be corroborated, they immediately stopped and ran off to report what al Libi had said – and ended the torture. And, bang, it gets up to the highest decision-makers.

And all of a sudden Colin Powell is told, “Hey, you don’t have to worry about your doubts anymore, because we’ve just gotten confirmation that there were contacts between al Qaeda and Baghdad.” [1:25:30-1:26:03 on the DVD; also available in text form in an online transcript]

But, as often happens with information obtained by torture, al Libi was telling his captors whatever he thought they wanted to hear, in order to stop the torture. And a connection between Saddam Hussein and al Qaeda is what the Bush administration wanted to hear as can be seen from the events related below.

Within hours of the 9/11 attacks, Secretary of Defense Donald Rumsfeld was looking to:

Hit Saddam Hussein at the same time – not only Osama bin Laden … go massive. Sweep it all up, things related and not.

Those words, including the underlining, were in notes taken by Stephen Cambone, then the Director for Program Analysis and Evaluation within the Office of the Secretary of Defense, at a meeting with Rumsfeld. While they’re hard to read, I’ve attached a complete copy of Cambone’s redacted notes so you can see where those words came from. My excerpt above starts on line 5, “S.H.” stands for Saddam Hussein, and “UBL” for Osama (Usama) bin Laden.

010911 Rumsfeld Plans Attack

David Frum, who was the chief architect of  the “axis of evil” concept in President Bush’s 2002 State of the Union address describes how it came about:

It was late December 2001, and Mike Gerson was parceling out the components of the forthcoming State of the Union speech. His request to me could not have been simpler: I was to provide a justification for a war. … Bush needed something to assert, something that made clear that September 11 and Saddam Hussein were linked. [1]

A week before the invasion of Iraq, the Christian Science Monitor noted how President Bush continually linked Saddam Hussein with September 11:

In his prime-time press conference last week, which focused almost solely on Iraq, President Bush mentioned Sept. 11 eight times. He referred to Saddam Hussein many more times than that, often in the same breath with Sept. 11.

Bush never pinned blame for the attacks directly on the Iraqi president. Still, the overall effect was to reinforce an impression that persists among much of the American public: that the Iraqi dictator did play a direct role in the attacks. A New York Times/CBS poll this week shows that 45 percent of Americans believe Mr. Hussein was “personally involved” in Sept. 11 …

Sources knowledgeable about US intelligence say there is no evidence that Hussein played a role in the Sept. 11 attacks, nor that he has been or is currently aiding Al Qaeda. Yet the White House appears to be encouraging this false impression, as it seeks to maintain American support for a possible war against Iraq …

Polling data show that right after Sept. 11, 2001, when Americans were asked open-ended questions about who was behind the attacks, only 3 percent mentioned Iraq or Hussein. But by January of this year, attitudes had been transformed. In a Knight Ridder poll, 44 percent of Americans reported that either “most” or “some” of the Sept. 11 hijackers were Iraqi citizens. The answer is zero.

Just prior to his invasion of Iraq, President Bush formally linked Saddam Hussein with 9/11 when he confirmed to Congress that attacking Iraq was consistent with “continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” That wording comes from the Authorization for Use of Military Force Against Iraq Resolution of 2002.

In spite of this repeated linking, in 2006, when President Bush was asked by Ken Herman of Cox News, “What did Iraq have to do with … the attack on the World Trade Center,” he replied:

Nothing. … nobody has suggested in this administration that Saddam Hussein ordered the attack. … the lesson of September 11th is take threats before they fully materialize, Ken. Nobody’s ever suggested that the attacks of September the 11th were ordered by Iraq.

In 2009, former Vice President Dick Cheney similarly declared, “I do not believe, and I have never seen any evidence, that he [Saddam Hussein] was involved in 9/11.” That article notes, however, that “Still, Cheney said a longstanding relationship existed between Hussein and terrorist groups, including al-Qaeda, that justified the U.S. invasion of Iraq in 2003.”

While the Christian Science Monitor and a few others raised questions about going to war, most of the media joined the drumbeat to war. Bill Moyers’ Buying the War video (also available as a transcript) documents this abdication of responsibility by the press. For example, Phil Donahue says on camera that he was instructed to have two supporters of the war on his show for every person raising questions:

You could have the supporters of the President alone [on my TV show]. And they would say why this war is important. [But] You couldn’t have a dissenter alone. Our producers were instructed to feature two conservatives for every liberal.

In spite of that rule, Donahue’s show was canceled several weeks before the invasion. While NBC denied a connection between the cancellation and Donahue’s raising questions about the war, Moyers cites a leaked, internal network memo which stated, “Donahue presents a difficult public face for NBC in a time of war. At the same time our competitors are waving the flag at every opportunity.”

Moyers’ documentary also has February 2003 clips of Fox News commentator Bill O’Reilly creating an atmosphere designed to repress any questions about going to war:

Anyone who hurts this country in a time like this. Well let’s just say you will be spotlighted. … I will call those who publicly criticize their country in a time of military crisis, which this is, bad Americans.

In the documentary, journalist Eric Beohlert notes that when Senator Ted Kennedy gave an impassioned speech questioning the war:

[The] Washington Post gave that speech one sentence. 36 words. I calculated in 2002, the Washington Post probably published 1,000 articles and columns about Iraq. Probably one million words, in excess of one million words. And one of the most famous democrats in the country raised questions about the war, the Washington Post set aside 36 words.

The connection between the Iraq War and defusing the nuclear threat – the goal of this blog – can be seen in a March 2013 Russian article, headlined “What Russia Learned From the Iraq War.” The article was written by Fyodor Lukyanov, editor in chief of Russia in Global Affairs, published with the participation of the prestigious journal Foreign Affairs. Here are some excerpts from that article, which led Lukyanov to conclude that US foreign policy is governed by “strategic insanity” (emphasis added):

The conclusions drawn by Putin from the situation surrounding Iraq were [that] …  the strong do what they want: they don’t contemplate international law, global reality or the costs incurred by themselves and others. The only rational way of behaving in such a world is to increase one’s own power and capabilities, so that one can fight back and exert pressure, if necessary. …

In the 10 years since the Iraq war, Putin’s worldview has only strengthened and expanded. Now he believes that the strong not only do what they want, but also fail to understand what they do. … Everything that’s happened since — including flirting with Islamists during the Arab Spring, U.S. policies in Libya and its current policies in Syria — serve as evidence of strategic insanity that has taken over the last remaining superpower.

… Moscow is certain that if continued crushing of secular authoritarian regimes is allowed because America and the West support “democracy,” it will lead to such destabilization that will overwhelm all, including Russia.

Martin Hellman

[1] David Frum, The Right Man: The Surprise Presidency of George W. Bush, Random House, New York, 2003, pages 224 and 233.

The post Avoiding Needless Wars, Part 9: Iraq appears on ScienceWonk, FAS’s blog for opinions from guest experts and leaders.

The Syrian Civil War and WMDs

On September 5, 2013, Senior Fellow on State and Non-State Threats Charles Blair spoke to staff at the Government Accountability Office in Washington, DC on the current conflict in Syria and the use of weapons of mass destruction.

Slides from the presentation which include information on chemical weapons, the incidents in Syria and possible U.S. intervention can be found here.