The Iraq War's Legal Legacy

By Mike Dorf

With nearly all U.S. troops (save a handful of military advisers) exiting Iraq, the question being asked most commonly is "was it worth it?". Well, to paraphrase former President Clinton, that depends on what the meaning of "it" is.  Actually, there are two uses of the word "it" in the question, and presumably they have different referents.  The first "it" appears to refer to the positive goals achieved by the Iraq war; the second "it" refers to the costs.

Let's take the first "it" first.  To state the obvious: The original stated goal of the March 2003 invasion of Iraq was to prevent Saddam Hussein from attacking the U.S. and its allies with the weapons of mass destruction that he supposedly possessed or was in the process of acquiring; because Iraq turned out not to have a WMD program, obviously the loss of thousands of American and Iraqi lives was not an appropriate price to pay to avert the harm from a nonexistent threat.

Accordingly, news coverage that treats "was it worth it?" as a serious question must look to other goals as the justification.  This Christian Science Monitor article is typical in treating replacing a tyrant with democracy as the goal against which the costs of the war must be measured.  Not surprisingly, such a question can only be answered honestly with a "don't know."  The answer appears to depend on balancing the quantum of damage that Saddam would have continued to inflict had he remained in power against the improvements that Iraq's present and future reflect relative to that counterfactual history, discounted by the war's costs.  In a few decades we may have reasonably good answers to the question of how Iraq fared after the war, but we will never know how things would have played out in the alternative version of history.

Calculating the second "it" nonetheless remains a useful endeavor because it may give us some purchase on the question of how big the first "it" would have to be to make a war worthwhile.  On the cost side of the ledger, I would include damage to the rule of law.

On the eve of the March 2003 invasion, I wrote a column in which I posed the question whether the war on Iraq was lawful.  Because I concluded that it was not, my column got a fair bit of play among anti-war activists around the world, but the people citing it may not have noticed that I did not exactly say that the illegality of the war was enough to render the war unjustifiable.  I continue to think, as I thought at the time, that there are circumstances where it is morally permissible or even morally obligatory to act unlawfully.  Still, the anti-war activists were right to read me as saying that the Bush Administration was according insufficient weight to legal considerations.  Legality should not count for everything, but neither should it count for nothing, I warned.

I also worried that "one impact of a war of dubious lawfulness may be the continued erosion of respect for the United States as a nation committed to principles of justice under law."  I had in mind the worry that the Iraq war would undermine the international image of the U.S. (as it did), but looking back now it seems one also might have worried about the internal impact of the Bush Administration's willingness to ignore the law--or what amounts to the same thing, its willingness to make facially self-serving arguments to provide a fig-leaf of legality for just about whatever it wants to do.  I did not know at the time that the Administration was engaged in the same sort of hair-splitting on waterboarding, but it's not surprising in retrospect.

Seen from this perspective, one might view the recent Libya adventure as an extension of the Iraq logic.  Speaking for the Obama Administration, Harold Koh engaged in casuistry worthy of Bush's OLC when he concluded that the War Powers Resolution did not require the President to go to Congress for authorization  for pressing the operation because the bombing mission did not constitute "hostilities" under the Resolution.

Can we trace a direct causal path from the Bush Administration's lawlessness on Iraq (and detainees) to the Obama Administration's approach to Libya?  Probably not.  But neither can we rule out the possibility that Obama's relatively free hand to do what he liked in Libya was made freer by the American people having been conditioned over the prior decade to accept that inconvenient legal constraints on war-making are to be cast aside as mere technicalities.

To be sure, the Libya operation proved reasonably successful (so far), whereas the outcome of the Iraq war remains unclear.  But consequently, we have all the more reason to worry that Obama's willingness to skirt the law may further entrench the notion that legal constraints on going to war can and should be regarded as toothless.