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Politico-International Law.


President Obama was awarded a Nobel Peace Prize for "extraordinary efforts to strengthen international diplomacy and cooperation between peoples." (1) The nine-month-old administration evinced surprise and suggested it was premature, but supporters accentuated the significance of peace processes and multilateral diplomacy. (2) Praise was deserved but antecedent circumstances may have been more pertinent. (3) Being more of a unilateralist, George W. Bush was not among the nominees. (4) Nonetheless, there are alternative perceptions regarding the flexibility of international law.

In a Foreign Policy article, published three weeks before the Nobel Prize was endowed, Professor Eric Posner explained that the U.S. has a history of choosing which international laws to obey, that Bush "did not brush aside international law as casually as his critics claimed," and that President Obama will likely follow a policy of selective adherence. (5) Professor Robert Delahunty and Professor John Yoo contend: "Whether the President should follow international law in the exercise of his constitutional authorities remains a policy question that is context specific." (6) Pristine foreign policy might be unrealistic but, to other scholars, international law transgressions by preceding administrations have arguably paled in number and depth to the Bush Administration's alleged violations. (7) Nonetheless, Posner's prediction for the Obama administration could be correct, and Delahunty and Yoo may represent what some presidents perceived was prerogative.

An alternative view is that international law should be limited neither to sterile interpretations nor to normative postulations of whether it should be obligatorily followed. It would seem futile for American delegations to influence the substance of treaty provisions at conferences, hypocritical to make promises that are not reciprocally binding, and irrational to sign and ratify treaties and make reservations to those treaties merely to produce discretionary norms. The Constitution specifies that (1) ratified treaties have the status of federal law, (2) Presidents must "faithfully execute" the law, (3) "checking" government authority is imperative, and (4) presidential authority derives from the "people." (8) The general public prefers compliance with international law, (9) and many U.S. domestic laws codify such paramount rules. For example, 18 U.S.C. [section] 2441 prohibits war crimes, 28 U.S.C. [section] 1605 forbids torture, and 5 U.S.C. [section] 3107 and 22 U.S.C. [section] 1461 proscribe subsidized-propagandizing.

Referencing a series of books, Professor Eric Yamamoto writes: "Many have documented [the Bush] administration's penchant for deliberate misrepresentations on national security--in blunt terms, for lying to the American people about threats at home and abroad." (10) Bush departed with the second lowest presidential approval rating in history at 22%, due to Iraq and poor economic conditions. (11) Startling expenditure and derivative costs are documented by Nobel Laureate Joseph Stiglitz and Professor Linda Bilmes, in The Three Trillion Dollar War: The True Cost of the Iraq Conflict. (12) Within six months of the administration's departure, favorable foreign views of the U.S. surged. (13) These updated perceptions suggest that permitting asymmetric information chicanery undermines informed public will, begets dangerous political shifts, eschews international community sentiment, and disrupts propitious and peaceful international relations.

If a President can arbitrarily choose which rules to follow, such that international law might be invoked or ignored at will, then domestic law and politics should be regarded as prime exegeses for foreign affairs and public reactions to foreign policy. Commander-in-Chief authority is subject to Congress's respective powers, but sanctions are not serendipitously carte blanche. Instead, they are derived by measuring the costs and benefits of a particular policy under prevailing circumstances. (14) Adhering to the recent trend in legal scholarship that incorporates social science research on government-citizen interactions, communications, and political accountability, (15) this Article contends that domestic political restraints should be viewed as intrinsic to foreign policy and international law analyses. Accordingly, the research addresses political processes that should be scrutinized to ensure that foreign policy actions garner informed populace assent and to prevent unjustified circumvention of international law.


A vignette of key events introduces the analytical framework. A group of prominent political figures, referred to as neoconservatives, initiated several years of belligerent advocacy in think tanks, presenting themselves as an interest group during the late-1990s. (16) They vowed to alleviate obstreperous and minatory national security danger and affixed Iraq at the apex of perils to the United States. (17) In January 2001, the newly-inaugurated President appointed outspoken neoconservatives to key foreign-policy positions in the State Department and Pentagon and held his first National Security Council (NSC) meetings with an agenda that highlighted deposing the Iraqi government. (18) Immediately after 9/11, some administration officials attributed Iraqi culpability to the events, thereby kindling proclivities inside defense-related agencies. (19) In early-September 2002, six months before the March 2003 invasion, the White House engaged in comprehensive press-agentry and U.N. diplomacy to address the perceived national security threat posed by Iraq. (20) On October 1, the American Intelligence Community (IC) completed a National Intelligence Estimate (NIE) that introduced drastic departures from previous assessments. (21) Ten days later Congress approved an Authorization to use force with the qualifications that the President exhaust peaceful dispute settlement mechanisms, substantiate national security threats with evidence, and seemingly even assure that military confrontation was connected to 9/11. (22) Those conditions for military action were evidently bypassed due to misperceptions about the threat from Iraq. (23)

Two journalism organizations compiled a database of 935 patently false statements and hundreds of other misleading allegations made by top Bush administration officials (on 532 different occasions in speeches, interviews, and testimony) that unequivocally guaranteed Iraq's possession of weapons of mass destruction (WMDs) and its connections to al-Qaeda. (24) Pre-invasion polls revealed that 70% to 90% of Americans believed that Iraq was concealing nuclear, biological, and chemical weapons; majorities of those polled thought Hussein was aiding terrorists who would ultimately attack the U.S. (25) The 1,400-member Iraqi Survey Group's post-invasion inspection efforts failed to discover WMD evidence (26) and other investigations were unsuccessful in confirming an al-Qaeda connection. (27)

White House officials and supportive pundits attributed mistakes to reliance on faulty IC estimates. (28) Numerous IC officials and other commentators retorted that the White House pressured analysts, biased the intelligence gathering and analytic processes, or both. (29) Pandemonium caused the Senate Select Committee on Intelligence (SSCI), Congress's prime intelligence oversight body, to undertake a five-year investigation that criticized both faulty NIE estimates and the administration. (30) In a statement that concluded the investigation, SSCI Chairman Rockefeller remarked: "In making the case for war, the administration repeatedly presented intelligence as fact when it was unsubstantiated, contradicted or even nonexistent." (31)

Three predominant political science theories help to explain these asymmetric information deficiencies and provide an inclusive lens for assessing international law and foreign policy: (1) the abiding philosophical battle between realism and liberalism in international relations, (2) Exit, Voice, and Loyalty bureaucratic dissent principles, and (3) Public Choice. In two-level games diplomatic positions interact and update with domestic support or restraint, such as in treaty ratification procedures or international relations crises. (32) Here, the philosophical neoconservative policy preference (variable one) might be inhibited or embraced by domestic bureaucratic positions (variable two), and/or public opinion (variable three). For variable two, other government agencies in the aggregate conformed to the preferred policy, as organizational theory and psychology research would likely predict, while some IC, State Department, and Pentagon officials voiced their dissent over the uncertainty of any alleged danger and even resigned. (33)

Public Choice (variable three) presumes that there are bilateral interactions between populace preferences and government policy in democracies. (34) Public misperceptions allowed the action, but once updated, the support for occupation dwindled, ostensibly also due to the realization that there were no WMDs. (35) A majority of Americans doubted the president's honesty and demanded troop withdrawal; a Zogby poll found that 72% of returning veterans favored withdrawal within a year. (36) ABC News surveyed Congresspersons who had voted for the October 2002 Authorization and discovered that a substantial percentage reversed their positions in hindsight and confirmed that the resolution would have been rejected with more accurate information. (37) The low January 2009 presidential approval ratings were due to the Iraq War and poor domestic economic conditions, which may in fact be interrelated if foreign policy expenditures impact domestic economic conditions. (38)

Officials seemed reluctant to testify to projected invasion costs and proffered highly conservative estimates that contradicted experts who predicted that an invasion would severely disrupt government spending and negatively impact the economy. (39) The invasion, occupation, and security expenditures, soldier medical outlays, and rebuilding efforts have been estimated to cost as much as $1.5 trillion through 2009. (40) An occupation requiring sustained expenditures was not publicly addressed, but instead the action was advanced to confront security threats, evolving into a "liberation" mission amid an equivocal Iraqi populace. (41) Security Council Resolution 1483 labeled Britain and the U.S. as the occupying "Authority" to ensure disarmament, to administer the country, to provide humanitarian aid, and to install a representative government, all of which were projected to take slightly over a year. (42) Despite the expiration of authority, there were still one hundred and sixty thousand soldiers and one hundred and eighty thousands private contractors in Iraq in July 2007. (43) The 2008 U.S.-Iraq "bridge" agreement called for occupation forces to withdraw by 2012, but Army chief of staff General George Casey recently explained that because the world remains "dangerous and unpredictable," the Pentagon is prepared to remain for another decade. (44)



Neoconservativism can be traced to the Nixon, Ford, and Kissinger era of Cold War struggles, (45) but the more recent weltanschauung is encountered in the Reagan-Bush administration. The U.N. General Assembly condemned the 1983 Reagan-ordered attack on Granada to reinstall Maurice Bishop's government as a violation of international law by a vote of 108-9-27 and denounced the 1989 Bush-ordered invasion of Panama as a "flagrant violation of international law" by a vote of 75-20-40. (46) In 1985, Reagan alerted Congress that the Sandinista government was a state-sponsor of terror capable of launching hemispheric-wide communist revolutions, and that it posed an "unusual and extraordinary" security threat since Nicaragua was a mere two-day drive from the U.S. border. (47) The International Court of Justice (ICJ) eventually found that Reagan's use of covert CIA operations to organize, train, finance, and supply Contra insurgents in support of their efforts to overthrow the democratically-elected Nicaraguan government was a violation of international law. (48) Consequently, Reagan withdrew the U.S. from the ICJ's contentious jurisdiction to avoid being mandatorily hailed before the court. (49)

Neoconservative ideology moiled shortly after the 1991 Gulf War, as evidenced in a draft document entitled Defense Planning Guidance, written by Under Secretary of Defense for Policy Paul Wolfowitz for Secretary of Defense Dick Cheney. (50) The draft countenanced immense defense spending increases, unilateral and preemptive attacks--which prevent any military rival from emerging--and intervention in Iraq to ensure "access to vital raw materials, primarily Persian Gulf oil." (51) This "guidance" signaled ideology but lacked legal significance. The Executive Branch has no prerogative to implement a broadly-aggressive, ex ante, and unilateralist foreign policy that may marginalize U.N. Charter rules (52) and violate Congress's War Powers and the Constitution's Treaty Clause. (53) Nonetheless, neoconservatives were relentless in offering policy prescriptions.

Many Reagan-Bush Sr. administration officials were affiliated with conservative think tanks during the 1990s and founded the Project for a New American Century (PNAC) in 1997. (54) In January 1998, eighteen PNAC members, ten of whom were appointed to top foreign policy positions in the Bush Jr. administration, addressed a letter to President Clinton that belittled the Security Council for its alleged impotence in addressing Iraq and urged Clinton to remove Hussein because he became a "hazard [to] the world's supply of oil," (55) even though oil prices had been low and stable for many years. (56) Furthermore, after the Gulf War, there were no Iraqi military encroachments toward any contiguous country, and the American military had effectively quarantined Iraq by establishing bases in neighboring countries and by patrolling 60% of Iraq's airspace. (57)

One month later, many of the same individuals, this time as "The Committee for Peace and Security in the Gulf," lobbied Clinton with a nine-point political and military strategy for bringing down Saddam and his regime. (58) Unsuccessful, they turned to Congressional leaders Trent Lott and Newt Gingrich and complained that Clinton was not heeding their counsel. The Committee urged Congress to "establish and maintain a strong U.S. military presence in the region, and to be prepared to use force to protect vital [US] interests in the Gulf--and, if necessary, to help remove Saddam from power." (59) For six years, U.N. inspection teams conducted thousands of inspections and presumed that Iraq was devoid of any prohibited weapon programs, which logically meant that Resolution 687's disarmament conditions were fulfilled and economic and trade sanctions could gradually be lifted. (60) Despite such conclusions, the sanctions remained in place while neoconservative advocacy in policy documents, books, and media emphasized impending jeopardy without tangible evidence. (61)

The key document signifying neoconservative philosophy is PNAC's Rebuilding America's Defenses (Rebuilding). The preface espouses four goals: "[D]efend the American homeland; fight and decisively win multiple, simultaneous major theater wars; perform the 'constabulary' duties associated with shaping the security environment in critical regions; [and] transform U.S. forces to exploit the 'revolution in military affairs.'" (62) The proposal advocates preserving global military hegemony, intervening in Middle East affairs, increasing the annual military budget by $100 billion over a four-year period, and "shap[ing] circumstances before crises arise." (63) With regard to Iraq, the document maintains that "the United States has for decades sought to play a more permanent role in Gulf regional security. While the unresolved conflict with Iraq provides the immediate justification, the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein." (64) The end of the Cold War left the international system unipolar, but neoconservatives marketed a domineering foreign policy (65) by conjuring perceptions of peril and by branding Iraq as the prime menace.

The document's title, Rebuilding America's Defenses, and metaphors, such as "American military forces limp toward exhaustion," (66) connote a decrepit and vulnerable military even though the U.S. was then (and remains) the most technologically advanced superpower. (67) For example, the U.S. can exert significant influence over which countries may procure certain weapons, since ninety-four of the top one hundred global companies producing high-technology armaments are either located in the U.S. or in allied countries. (68) Moreover, in 1999, American military expenditures were approximately sixteen times the combined military spending of the labeled "axis of evil" countries (Iran, Iraq, and North Korea) and "rogue states" (Libya, Syria, and Cuba). (69) Allocations are now over $651 billion and represent approximately half of aggregate global military expenditures. (70) For four decades, Pentagon foreign base expansions were premised on Cold War threats, but nearly one thousand foreign military bases and installations remain, with over 100,000 troops stationed in Europe, 37,000 in South Korea, and 50,000 in Japan. (71) Though taxpayers may not be fully cognizant of either expenditure levels or global military dominance, they may be preconditioned by risk portrayals.

Such portrayals are found in the September 2002 National Security Strategy (NSS), (72) which paradoxically surmises that we are "now threatened less by conquering states than we are by failing ones." (73) Secretary of Defense Rumsfeld stated in prepared testimony: "We have entered a new security environment, arguably the most dangerous the world has known." (74) Rumsfeld was the Secretary of Defense during the Cold War's "mutually assured destruction" threats, which occurred as the U.S. and Soviet Union pointed intercontinental ballistic nuclear missiles at each other. (75) Government officials executed Cold War civil defense exercises and evacuations, such as the Duck and Cover sequence of films, literature, and drills that trained two generations of students to seek "nuclear-protective" refuge and presented nuclear winter survival skills in the event of a nuclear war. (76) As compared to the threat posed by the "Red Menace," the alleged security threats posed by relatively weak countries, combined with an overwhelmingly powerful American intercontinental nuclear missile arsenal, (77) may lead some to contend that the security environment is not nearly as dangerous as others might suggest. (78) Nonetheless, Cold War security threat practices were resurrected. (79)

Neoconservative ideology permeated the government establishment with a courtly self-assurance of threats akin to that of a Hobbesian "state of nature" international system that could only achieve peace by global dominance. (80) Modern day portrayals of anarchy may be estranged from facts and international law, (81) indifferent to negative ramifications from antagonism, and insouciant to public costs. With an American public steeped in erroneous perceptions, Bush Administration officials goaded the U.N. to fixate on Iraq after four years of dormancy (82) by forming the perception of crisis without a clear reason to suspect wrongdoing (83) and projected U.S. military might to eliminate the vision of threat (84) that they had created. Professor Sunstein writes that the war against Iraq was "fueled by presidential speeches including vivid narratives of catastrophic harm." (85) Professor Nzelibe remarks that "one can view the President's role in an international crisis as that of an agent reacting to events that have been thrust upon him. Interestingly, however, his role as the nation's spokesman actually puts the President in a position to create or escalate an international crisis." (86)



Neoconservative proposals may have attracted many subscribers because the allegations employ core premises of two predominant international relations philosophies, both of which provide precepts and form perceptions about the viability of international law. They are the philosophies of realism and liberalism. Neoconservatives are functionally realists, who envision dire threats and presume that power maximization is required for safety. (87) They are rhetorically liberalists who presuppose that international cooperation exists because all civilized countries appreciate military hegemony and the "shining beacon" of the exceptional American model of democracy. (88)

Realists contend that countries rationally choose power and wealth maximizing policies (89) due to a perceived anarchy of the international system and uncertain capabilities and intentions of rivals. (90) This philosophy is introverted in that national interest spurs competition (91) and renders altruistic cooperation as naive. (92) Accordingly, international law does not facilitate cooperation or provide predictability and is viewed favorably only to the extent that limited cooperation enhances state power (93) or powerful actors impose rules. (94) The status quo order merely reflects the dominant state-imposed balance of power over weaker countries. (95) The logical extension is that international law is not "real law" because it is imposed and there is no international judiciary or neutral enforcement mechanism to prevent other countries from selfishly shirking norms. (96) Those ascribing to a realist worldview may perceive little interest in promoting international institutions to constrain actions when other countries cannot be trusted to fulfill treaty obligations.

Realism's antithesis, the liberalism view of international relations, is often traced to Immanuel Kant (97) and presumes that state interactions are governed by "self-restraint, moderation, compromise, and peace." (98) Liberalists contend that international law is binding and fosters "trust" among nations. (99) This liberalist "trust" and realist "skepticism" continuum underlies the respective presumptions and perceptions of legal scholars who disagree over the potency, jurisprudential schemas, philosophical bases, and construction of international law. (100) Realist Hans Morgenthau believed that because maximizing "power is always the immediate aim," a cooperative legalistic approach to international law is unrealistic. (101) The natural struggle for wealth and power (102) begets "subjective, politically motivated State wills or interests" and breeds unprincipled and chaotic behavior. (103)

Realism dominated international relations theory during the Cold War, (104) but since then globalization has proliferated international law, agreements, and organizations, (105) all of which provide more stable and predictable international relations. (106) Cooperation reduced competition for military "power" and the likelihood of conflict, (107) and it appears that most countries generally abide by international law. (108) Consequently, realists explained that such adherence exists because powerful countries establish the status quo and reap its dividends, while weaker countries abide by rules to avoid being sanctioned (109) Other commentators coined the term "institutionalism" and either agreed with the realist contention that power compelled the growth of international institutions (110) or disagreed and asserted that countries mutually assent to principles and willingly coordinate domestic policies with international agreements. (111) Explanations for voluntary cooperation include the desire to promote international order and stability, (112) long-term economic interdependence, (113) international culture of compliance, (114) partiality for reciprocity, (115) preference to maintain and collective belief that rules and institutions are treaty relationships, (116) legitimate. (117)


Like realists, neoconservatives reject the notion that international law and institutions can satisfactorily provide national security (118) and instead market the struggle for wealth and power and the inability to trust other countries. (119) They readily accept the realist presumption that power should not be redistributed, (120) and seemingly also endorse the notion that international law should be followed only when in a state's best interest. (121) Neoconservatives agree with the realist premise that rich and powerful states have a "disproportionate stake in maintaining the stability of the status quo." (122) The preface to PNAC's Rebuilding provides that its intention is to provide a framework to "shape a new century favorable to American principles and interests" and to serve the "vital role in maintaining peace and security in Europe, Asia, and the Middle East." (123) This logic becomes distinctly wry when neoconservatives inject premises of liberalism. Rebuilding states:
   America's grand strategy should aim to preserve and extend this
   advantageous position [of power] as far into the future as
   possible. There are, however, potentially powerful states
   dissatisfied with the current situation and eager to change it, if
   they can, in directions that endanger the relatively peaceful,
   prosperous and free conditions the world enjoys today. (124)

Rebuilding deduces that enforcing a system of "law-abiding" nations facilitates a "social good" among the global commumty. (125) The concern is that a competitor country could destabilize the status quo and deprive law-abiding countries of the hegemon's goodwill mission. (126) The altruistic justification for unilateralism is reflected in the NSS, which states: "[America's] unprecedented--and unequaled--strength and influence in the world [is] [s]ustained by faith in the principles of liberty and values of a free society," and America should defend "liberty and justice because these principles are right and true for all people everywhere." (127) The NSS further states that the U.S. must "pursue international relations according to the American values of democracy, freedom, and free markets" and defend those conditions as security threats. (128) The ends are altruistic, Kantian, and liberalist but the means are yoked by realist national security fear. (129) PNAC logic vacillates between realist self-interest to maintain hegemony and collective liberalist altruism.

Rebuilding posits that Iran, Iraq, and North Korea are seeking WMDs specifically with the intention to "dominate" their "regions" and to deter "American interventions" and further contends that these same countries, along with Libya and Syria, are threats to the U.S. and allies. (130) Such "interventions" will be required to thwart those intentions (realism), and the theory is that other countries will warmly welcome this global cloak of protection (liberalism). China's economic rise is cited as a worrisome threat to American hegemony in Asia, (131) even though China's foreign policy has typically been defensive, favoring non-interventionism. (132) In contrast to PNAC's portrayal, President Hu Jintao stressed that China's diplomatic strategy was to "strive for a peaceful and stable international environment, a good-neighborly and friendly surrounding environment, an environment for equal and mutually beneficial cooperation, and an objective and friendly publicity environment." (133)

Even allies seem opposed to this vision of hegemony. Some NATO members expressed the need to restrain American hegemony because they favor multilateral cooperation. (134) The European Union is often recognized as favoring economic cooperation with concern for the internal governance of other countries but employs multiple nonmilitary, conflict prevention models. (135) Berkeley Political Science Professor Robert Kagan explains:
   It is time to stop pretending that Europeans and Americans share a
   common view of the world, or even that they occupy the same
   world.... Europe ... is moving beyond power into a self-contained
   world of laws and rules and transnational negotiation and
   cooperation.... [T]he United States remains mired in history,
   exercising power in an anarchic Hobbesian world where international
   laws and rules are unreliable, and where true security and defense
   and promotion of a liberal order still depend on the possession and
   use of military might. (136)

While "American" foreign policy may be somewhat institutionalized, given that Pentagon bases still span many regions of the world even though the Cold War ended two decades ago, neoconservatives and many top Bush administration officials seemed to rely on three distinct attributes of unilateralism to exploit the status quo--failing to listen to other countries, dictating a worldview, and refusing to accept factual realities that gainsay predispositions. These three attributes underlie the so-called "War on Terror," the torture scandals, (137) attacking Iraq against U.N. Security Council determinations, and consistently finessing pre-invasion inspection reports and supplanting them with certainty of WMD possession. (138) In another prominent example, the twenty-two members of the Arab League adopted a unanimous resolution that "demanded the immediate and unconditional withdrawal of U.S. and British forces from Iraq" and affirmed that the invasion was a "violation of the United Nations Charter" and a "threat to world peace." (139) Shortly after that condemnation, National Security Advisor Rice remarked: "Something had to be done about that threat and..., this brutal dictator, with dangerous weapons, to continue to destabilize the Middle East." (140) The "hegemonic conception of what constitutes 'the better argument'" (141) may bypass facts and dominate discourse.

The liberalist view of cooperative peace envisions a federation of states that respect sovereignty so long as domestic conditions do not disrupt others' rights, (142) which suggests that international interventions could be justified by balancing community and sovereign rights. The U.N. generally incorporates this philosophy and the Security Council has served as the diplomatic body to diffuse "threats to international peace and security" for six decades. However, PNAC's Rebuilding predominantly mentions the United Nations only to deem its peacekeeping operations in the Balkans as unavailing and to conclude that this example confirms that solely U.S. leadership can effectively identify and respond to international security issues. (143) Past peacekeeping operations involved neutral, lightly-armed, and and non-combatant troops who lacked resources had coordination problems, (145) but were apposite within mission context, authority, and resources. (146) Inevitably, U.N. peacekeeping success is substantially dependent on what the U.S. approves or does not veto in the Security Council, on what it provides to militarily and financially support U.N. missions, (147) and on what it does to influence NATO and other countries. (148) Thus, the full-scale military actions in Afghanistan and Iraq, both of which were premised on "security threats" and have cost hundreds of billions of dollars, are not comparable to such U.N. peacekeeping missions.


While some view neoconservative unilateralism as incompatible with international law, (149) the extent to which the U.S. is not bound to uphold rules that others must accept relies on "American exceptionalism." (150) American exceptionalism derives from patriotic nationalism and sufficient power to grant foreign policy immunity. Exceptionalism may breed a distrust of international agreements (151) and shape egotistic views of foreign sovereignty (152) that classify other states on a "sliding scale of both legitimacy and respect." (153) It may even promote convenient heuristics in which demonized and dehumanized enemies can be represented with hyperbolic labels, such as "evil empire," communists, (154) "axis of evil," and "rogue states." The use of such labels garners positive national character sketches, leverages and sanctions the "compassionate hegemonic" action directed at the label, (155) and may even marginalize the First Amendment rights of critics. (156)

Exceptionalism is not merely a neoconservative concept; it is entrenched in American history. For example, while she forcefully called Iraq "one of the worst disasters in American foreign policy," (157) Clinton's Secretary of State Madeleine Albright was known for visiting foreign capitals and declaring that the United States was the world's "indispensible nation." (158) Neoconservatives, however, were even more emphatic and enskied the U.S. as the leading power that provided a "geopolitical framework for widespread economic growth and the spread of American principles of liberty and democracy" throughout the world. (159) Louis Fisher writes that the same "belief in American exceptionalism ... colored the National Security Strategy." (160) Professor Francis Fukuyama traces neoconservativism to the Cold War and maintains that like-thinking forerunners bypassed rules of state sovereignty for "moral purposes" that favored democracy and human rights and undermined Soviet attempts to expand dictatorships. (161) The heuristics of a pristine American hegemonic and paragon democracy are undeniably powerful and can be a positive influence if properly employed. But controversies have arisen.


The Pentagon and CIA were reportedly involved in notorious operations in post-WWII Europe that compromised democracy, particularly in Greece and Italy. (162) Administrations supported the Saudi monarchy for sixty years by supplying billions of dollars in weapons and erecting military bases in Saudi Arabia while the undemocratic ruling royal family was cited for perpetrating human rights abuses. (163) The CIA carried out the 1953 Iranian coup that reinstalled the Shah's kleptocratic dictatorship and subsequent administrations supported the Shah for twenty-five years. (164) In 1964, the Johnson administration was involved in the coup that displaced the democratically-elected Joao Goulart government in Brazil because it was perceived as too "left-leaning," (165) which led to a two-decade dictatorship. (166) In 1966, the U.S. aided the coup that brought Suharto to power and supported his undemocratic regime in Indonesia for thirty-three years. (167) President Ford and Secretary of State Henry Kissinger approved Suharto's 1975 invasion of East Timor that led to twenty-five years of suppressive rule. (168) In 1970, the Nixon Administration began to formulate plans to overthrow the popularly-elected Allende government in Chile (169) and was involved in the 1973 coup that brought Pinochet's dictatorship to (170) Other scholars reference failures in foreign policy that may have power. abetted non-democratic systems in Guatemala, Nicaragua, Cuba, Haiti, and the Dominican Republic. (171)

Pentagon occupations have also been controversial. A recent Carnegie Endowment for Peace study considered sixteen cases of U.S. "nation-building" and identified only two (Germany and Japan) as successes. (172) The virtues of its people have made South Korea a strong democracy; however, under U.S. occupation and from the 1953 armistice until the December 1986 elections, the country effectively remained under military rule. (173) The American military held bases in the Philippines as President Marcos reigned as a dictator for over thirteen years and stole billions of dollars in public funds. (174) A Senate Committee on Foreign Relations investigation in 1972 summarized the Pentagon's reaction: "[M]ilitary bases and a familiar government in the Philippines are more Important than the preservation of democratic institutions." (175) Marcos was eventually removed from power, and the U.S. military provided him safe passage to Hawaii. (176) Once democracy reemerged, the Filipino Senate expelled the American military against the Bush Sr. administration's protest. (177) Panama had a turbulent post-WWII political history replete with non-elected regimes despite the fact that the Pentagon stationed between 10,000 and 60,000 troops at fourteen military bases in the country, and made Panama the home of USSOUTHCOM's regional South American operations and its "university-like" military training ground, the School of the Americas (SOA). (178) In her book, School of the Americas, Professor Gill summarizes Pentagon involvement in Latin America:
   The release of a list of some 60,000 SOA graduates in 1993 revealed
   the names of some of the hemisphere's most notorious dictators,
   death squad operatives, and assassins, and when human rights
   activists began comparing these names to those listed in a variety
   of truth commission reports, the results were startling: SOA
   graduates took part in some of the worst human rights atrocities in
   the cold war. (179)

Official government records of these chronologies rarely surface in public discourse because the American Textbook Publishers Institute advised publishers "to avoid statements that might prove offensive to economic, religious, racial, or social groups or any civil, fraternal, patriotic or philanthropic societies in the whole United States." (180) Professor Gottlieb explains that "American policy is sanitized" and "[b]ooks rarely report questionable government action." (181) Nobel Laureate Jody Williams explains: "We support democracy when it's convenient to the interests of the United States of America. Maybe I'm an idealist ... but I believe there should be a standard." (182) President Reagan's UN Ambassador Jeane Kirkpatrick provided a standard--pro-Soviet communist states were "totalitarian" while pro-Western dictatorships were "authorltarian." (183) She contended that the Carter administration supported democracies with "fewer freedoms and less personal security" than an "autocracy." (184) Harvard History and Business Administration Professor Niall Ferguson's examination of the evolution of U.S. hegemony exhibits that expansionism for liberty has implicitly signified "Empire;" while UCLA Sociology Professor Michael Mann believes that hegemony permits an ideologically-unsound form of militarism. (185)

There is a history of asserting American moral superiority (186) in foreign policy to justify actions, (187) particularly of the benevolent "bearer of democracy" (188) and public benightedness of antithetical facts, (189) followed by reliance on ideological constructs to dismiss inconvenient revelations. (190) American political institutions and democratic frameworks can positively influence other countries, but those beneficial influences derive predominantly from the model of the U.S Constitution, the existence of many respectable U.S. leaders, and the American people. Well-intentioned government officials may not make optimal decisions if they are guided by the simplified worldviews of overly confident politicians and bureaucrats proclaiming to possess the panacea to achieve pristine international relations. While neoconservatives embrace a nonpareil American model of democracy assumption, a LexisNexis or Westlaw search of the term "neoconservative" reveals that substantial literature arose during the 1980s with civil rights groups and scholars battling Reagan-era officials. (191) Then, it was domestic liberals who could undermine a unifying vision of national solidarity and patriotism; but scarcely a decade later it was the international community that was expected to rally behind a vision of unified cooperation led by the Bush Jr. Administration and the premises of exceptional American democracy.


Many causes explain enhanced international cooperation. The end of the Cold War ameliorated self-determination movements for numerous countries that had previously been within the Soviet or U.S. "sphere of influence" and each pole's predisposition to favor allegiant leaders who could ensure potentially rebellious populations did not swing toward the other pole's interpretation of property rights. (192) The Non-Aligned Movement (NAM) reflects this sentiment. NAM began in 1955 as an international agreement among twenty-nine countries, mostly former colonies, and grew into an international organization with 118 members. (193) NAM bylaws require that no member country can be a member of "a multilateral military alliance concluded in the context of Great Power conflicts" and must adopt "an independent policy based on the coexistence of States with different political and social systems." (194)

While the U.N. historically emphasized "cultural relativism" (195) and a state's freedom to choose its own political, economic, and social systems, (196) U.N. institutions exhibited elevated interest in domestic governance and officially began to favor democracy to promote economic modernization and human rights during the 1990s. (197) The integrated European Union countries have served as a democratization model, possessing elevated human rights protections and transparency. (198) The progress of these international institutions and their congruous ideological justifications are consistent with liberalism's cooperative tendencies. However, collective-based international interest in sovereign affairs (199) opens the door to debate "legitimate military action" when there are competing visions of self-determination, sovereignty, non-intervention, and international peace and human rights. (200)

Another influential political tool is economic development. Political Science Professor Ronald Inglehart's global Modernization and Postmodernization surveys indicate that higher levels of economic development and appropriate social conditions lead to democracy. (201) The dominant Western discourse to explain this result is neoliberalism, (202) which presumes that government's role is to promote political and economic well-being by maximizing entrepreneurial freedom, preserving property rights, freeing markets, and promoting free trade. (203) Notwithstanding that some maintain that neoliberalism is not always consistent with democratization, (204) neoconservatives and the Bush Administration embraced the seeming democracy/market correlation and presumed American ideals and military power created it and that hegemony was necessary to protect it. (205) The NSS emphasizes that "economic openness" is fundamental to "domestic stability," "international order," and national security. (206) Others are more skeptical and contend that neoconservatives conjoined democracy, liberation, and unilateralism as a "front" for prying open international markets to potentially benefit dominant American multinationals. (207)


Realism and liberalism offer worldviews and useful taxonomies for explaining cooperation and discord, but they coexist because persuasive arguments are applied to emphasized facts. Realists have compelling support from the history of colonialism, reactions to colonialism, and U.S.-Soviet Cold War interactions. (208) but circumstances have evolved. Realism begins with the "state" as an "actor" projecting "rational" decisions, even though "rational" is often debatable--quite akin to "reasonableness" debates in law--while government "officials" are subject to multifarious (209) competing sub-national influences and processes. While realists presume that other states are competing for military and economic power and have the offensive capabilities and (210) perhaps desire to attack others within an anarchical international system, liberalists retort that confrontations occur because realists presume that there is an interminable, selfish struggle for power. (211) The mental state generates a self-fulfilling prophecy to create conflict. If one shifts the perception from fear to trust then there is predictability and a rationale for establishing international institutions and adhering to international law. Granted, submerging into liberalism too fully can beget an impractical worldview in which international institutions are presented as the omnipotent sine qua non to worldly woes.

A strict realism convention positing that states cannot cooperate is imperfect, (212) but power can drive international relations; (213) and the Iraq War clarifies that international law may not restrain power. If traditional philosophical orientations are applied, neoconservatives might be predisposed to presume that Iraq was lying about not possessing WMDs because Hussein wanted to attack Americans and change the "status quo," while liberalists might presume that Iraqi promises could be trusted and that U.N. inspection institutions were effective in demonstrating that there was no threat. Those disagreeing, including allies, simply could not fathom the national security threat perception, which was, in the end, nonexistent. (214) A philosophical worldview may set predispositions for action.


George Bush's inauguration ushered in neoconservatives and affiliates of top defense contractors to key White House, Pentagon, and State Department position. (215) Appointees guided bureaucracies to hawkish positions, hatched public relations/propaganda programs, (216) and allegedly prejudiced intelligence conclusions. (217) The White House maintained relationships with neoconservative think tanks and public relations firms that promoted the national security threat message to the public and media. Prominent neoconservatives regularly appeared on national media to present Iraq as a security threat. (218)

Former President Clinton was one of the first to emerge with accounts of these predispositions. He explained that at the presidential "exit interview," Bush acknowledged that he would be placing Iraq at the top of the national security agenda. (219) Scandal broke shortly after former Treasury Secretary Paul O'Neill went public to explain that the first National Security Council (NSC) meetings (January/February 2001) focused on Iraq. (220) O Neill released NSC meeting memos, including one entitled Plan for post-Saddam Iraq, which postulated troop requirements for invasion, a war crimes tribunal for Baathist officials, and oil industry reform. (221) O'Neill stated that the president gave assignments to a group of enthusiastically-supportive appointees--Secretary of State Powell would create a new sanctions regime, Secretary of Defense Rumsfeld and General Shelton would examine military options, CIA Director Tenet would improve current intelligence, and Treasury Secretary O'Neill would seek to economically pressure the regime. (222)

Ronald Suskind, a Pulitzer Prize recipient, details O'Neill's accounts and avowed that he interviewed hundreds of officials, including other cabinet members, to support the premise that displacing the Iraqi government and occupying the country was considered as early as January 2001. (223) O'Neill released a NSC document, dated March 5, 2001, entitled Foreign Suitors for Iraqi Oilfield Contracts, and noted that Defense Secretary Rumsfeld's accompanying extemporization at this meeting addressed "the oil fields, the reconstruction of the country's economy, and the 'freeing of the Iraqi people.'" (224) As for the evidentiary basis to justify action, O'Neill remarked: "'In the 23 months I was there [as a cabinet member], I never saw anything that I would characterize as evidence of weapons of mass destruction....There were allegations and assertions by people.'" (225) Exposing incompatibility between whistleblower protection laws and national security secrecy restrictions (226) (particularly when it was one year after the invasion), the administration opened an investigation into whether O'Neill illegally revealed classified documents to CBS.(227) Officials never denied meeting or document contents but asserted that there was not yet a "war plan" and that "regime change in Iraq has been U.S. policy since 1998." (228) Indeed, neoconservatives goaded the legislation to "promote the emergence of a democratic government" in Iraq, (229) and it was pushed through Congress concurrent with Republican-led impeachment inquiries against President Clinton. (230)

Immediately after 9/11, administration officials began taking more tangible steps toward invading Iraq. Secretary of Defense Rumsfeld told aids to devise plans to strike Iraq within four hours of the attacks and directed his staff to attain the "best info fast. Judge whether good enough to hit S.H [Saddam Hussein]....Go massive....Sweep it all up. Things related and not." (231) On Meet the Press, General Wesley Clark noted that "that there was a concerted effort during the fall of 2001, starting immediately after 9/11, to pin 9/11 and the terrorism problem on Saddam Hussein." (232) Pentagon, SSCI, CIA, and 9/11 Commission investigations all concluded that there was no connection between al Qaeda and the Iraqi government, but uncovered documents indicating that a "handful of senior policy officials" immediately sought to take military action against Iraq and that they "wasted no time in pressing their case." (233) Within one week, meetings at Camp David produced proposed operations against Afghanistan and directed the Pentagon to plan military operations for Iraq. (234) The CIA was given authority to recruit and financially-support disloyal Iraqis and to unload a propaganda campaign, conduct sabotage operations, and to provoke an insurrection. (235)

Richard Clarke, another top White House official, emerged as a whistleblower two months after O'Neill. He stated that, on September 12,
   The president in a very intimidating way left us, me and my staff,
   with the clear indication that he wanted us to come back with the
   word that there was an Iraqi hand behind 9/11 because they had been
   planning to do something about Iraq from before the time they came
   into office. (236)

He further contended that top Pentagon appointees, particularly Rumsfeld and Wolfowitz, immediately advocated attack and regime replacement without regard to evidence of wrongdoing. (237) The SSCI interviewed Pentagon Defense Intelligence Agency analysts who remarked that their analyses had to be "on target" with the assumption in the Office of the Secretary of Defense that Iraq was connected to al-Qaida or behind 9/11. (238)

Subsequently released White House documents, (239) and many White House, Pentagon, and intelligence officials confirmed that war plans were discussed and the decision to invade was set as early as November 2001 without a broad-based intelligence assessment or Congressional debate and authorization. (240) At the international level, the U.N. did not renew deliberations about Iraq until October 2002 (241) and the assumption held by Security Council members was that war could be avoided if there were no WMDs. (242)

By December 2001, victory in Afghanistan was proclaimed and the President began to infer that military objectives involved more than bin Laden and Afghanistan. The January 2002 State of the Union Address affixed Iraq into the equation: "States like these, and their terrorist allies, constitute an axis of evil.... By seeking weapons of mass destruction, these regimes pose a grave and growing danger.... I will not wait on events while dangers gather." (243) The SSCI concluded that Bush administration officials led a consistent propaganda campaign that falsely linked Iraq and al-Qaida as a single threat. (244)

By mid-2002, officials began to express that there would be regime change in Iraq (245) and there was "full-scale lobbying" for war. (246) Some media speculated about a future attack and even announced that plans involved bombing operations, followed by a ground invasion of 70,000 to 250,000 troops. (247) In December 2002, Rumsfeld signed a deployment order for 25,000 troops to go to the Persian Gulf to accompany 60,000 soldiers already deployed earlier in the year. (248)

While the October 1, 2002, National Intelligence Estimate (NIE) was allegedly the foundation of evidence that served for six months (October 2002 through March 2003) of national security threat claims and the core information presented to Congress during Authorization to Use Force vote debates, (249) some intelligence analysts explained that the NIE was intended for military invasion planning. The SSCI quoted one analyst stating:
   [T]he going-in assumption was we were going to war, so this NIE was
   to be written with that in mind. We were going to war, which meant
   American men and women had to be properly given the benefit of the
   doubt of what they would face.... That was what was said to us....
   This is about going to war and giving the combatant commander an
   estimate on which he can properly organize.... Remember, the conops
   [concept of operations] had already been published.... [Y]ou have
   to understand that from an executive branch [perspective] it's
   about planning. The conop order had been given months before,
   months. Deployments had already begun. (250)

There were also drastic changes in intelligence estimates. The NIE was hastily produced over a three-week period, many appointed officials had held a predestined position about Iraq combined with the desire for a prominent military role in the Middle East, war plans were announced in the media, and there were military deployments to the Middle East. (251) Even before the NIE was produced, the White House claimed that Iraq had a nuclear weapons program, stockpiles of chemical and biological weapons, and terrorist surrogates who would attack the U.S. (252) If the SSCI analyst quotation is accurate, then the White House held a preference for regime change and conclusions were fashioned around a policy that may have been more consistent with neoconservative philosophy than facts. A deductive reasoning sequence followed--the Iraqi government was a threat, it must possess WMDs and the intent to use those weapons to embody that security threat, the regime had to be displaced, and, to do so, an invasion was required. (253) The NIE even speculated when Iraq would likely use its alleged WMDs: (1) "preemptively against U.S. forces, friends, and allies ... to disrupt U.S. war preparations and undermine the political will of the Coalition," (2) "after an initial advance into Iraqi territory," and (3) "when he perceived he irretrievably had lost control of the military and security situation." (254) Ostensibly, the NIE was generated not to objectively assess if Iraq was a threat but to be cautious and guarded for worst-case scenario risks to complement already-existing invasion plans.

Such presumptions may have set standards for the relevancy of the intelligence information. The SSCI found that intelligence officers and managers interpreted ambiguous information as "conclusively indicative of a WMD program" and ignored contrary evidence. (255) Analysts "rationalized the lack of evidence was the result of 'vigorous' Iraqi denial and deception (D&D) efforts to hide the WMD programs that analysts were certain existed." (256) Chastisements of NIE claims can be broken into multiple categories: first, pre-existing intelligence reports made overstatements; (257) second, false claims were accidentally inserted into the NIE; (258) third, IC miscommunications and failure to communicate led to false claims; (259) fourth, intelligence professionals were not sufficiently careful and conscientious; (260) fifth, reporting inconsistencies were not addressed; (261) sixth, allegations were not supported by preexisting intelligence reports; (262) and lastly, ambiguous and unsubstantiated data and witness accounts were improperly regarded as veritable. (263) Since existing data did not substantiate threat allegations, the next section examines how the combination of national security classification prerogatives, organizational dynamics, and evident policy preferences marginalized the dissent from inside government agencies.
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Title Annotation:p. 29-70
Author:Bejesky, Robert
Publication:Loyola Law Review
Date:Mar 22, 2011
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