I am just now getting the chance to write some comments about “Peter Scoblic’s TNR article about nuclear proliferation”:https://ssl.tnr.com/p/docsub.mhtml?i=20050808&s=scoblic080805. [full disclosure: Peter was the editor of _Arms Control Today_ when I first began working at ACA.]

These are just some thoughts I had while reading the piece, rather than a proper review. Overall, it’s very good and even experts can benefit from reading it.

That said, some comments:

*First,* I think Peter’s opening description of the Bush administration’s worldview is incomplete. Peter begins with “Democracy has become George W. Bush’s reflexive answer to terrorism.” But I would have included some other elements of the administration’s foreign policy in the introduction – such as its focus on regimes’ characteristics and disdain for international agreements – that Peter gets to later in the piece.

This is not merely for stylistic reasons –I think that, in general, many commentators impute a degree of coherence to the Bush second-term foreign policy “strategy” that just isn’t there. Yes, Bush reportedly read the Sharansky book and says some shit about democracy every so often. He may even think democracy promotion is a good idea.

But this should not be mistaken for a strategy. Instead, we should speak of a Bush administration “approach” to nuclear proliferation. Unfortunately, this approach has been incoherent and (mostly) a failure.

It’s true that the administration thinks that there are no bad weapons, just bad regimes. But those bad regimes are defined as ones that don’t happen to be our friends/lackeys at the moment – democracy is not really the driving factor. [The inconsistencies of the administration’s alleged support for democracy need not be detailed for this audience.]

*Second,* Peter is still absolutely right that the “regime” focus of the administration is ridiculous. There are some examples that I think he could have spent more time on.

* Pakistan. Not only are nuclear-armed Pakistan’s democratic credentials a bit lacking as of late, but the Khan network has been a proliferation nightmare.

* Russia. One of the weaknesses of the Moscow Treaty that Peter doesn’t discuss is that it expires in 2012 and the current START I verification measures end in 2009. I have “written before”:http://www.armscontrolwonk.com/index.php?id=376 that the lack of an arms control treaty with the only country whose nuclear arsenal presents an existential threat to the United States is a bit disturbing.

* India is another good example (My guess is that the issue was just getting sorted out while Peter was writing, so I’m not criticizing him for omitting it.) The existence of some common strategic interests with New Delhi, as well as the fact that India is the world’s largest democracy, appear to have led the administration to take the “ah, fuck it” attitude with respect to the “potential damage”:http://www.armscontrolwonk.com/index.php?id=718 that the deal could do to the non-proliferation regime.

*Third,* I hate to do it, but I must quibble with Peter on one point. But only because it’s an argument I frequently see. Peter writes that the NPT allows NNWS:

bq. to enrich uranium and reprocess plutonium for peaceful purposes, such as generating energy. This provision is the back door that Iran and North Korea have exploited to advance their nuclear programs…

The “back door” to the NPT is not the reason that North Korea and Iran are getting nuclear weapons. North Korea starting building its facilities well before signing the NPT. In fact, a combination of IAEA inspections and US intel helped bust North Korea during the 1990. Iran got much of its critical assistance from the Khan network and kept its program secret for a long time. [To be fair, the potential loophole _does_ complicate our ability to persuade Iran to give up its nuclear fuel program.]

*Fourth,* there’s a good bit of truth to Peter’s argument that the Bush people are good at narrative-building. But I don’t think democracy promotion was nearly as important to Bush’s re-election as was his ability to scare the shit out of the American public. For example, Bush frequently explained his way out of the Iraq goat rodeo by saying that he had to choose between protecting the American public or trusting Hussein’s denials regarding Iraq’s suspected WMD. This was to convey that Bush was more risk-averse than Kerry when it came to coping with terrorism and, therefore, a superior foreign-policy president.

Peter is absolutely right to say that pragmatism ought to receive greater emphasis. And I think there are persuasive stories that can be told to promote pragmatic policies.

But the problem, in my view, is not so much the way that pragmatists talk about foreign policy. It’s that the administration, aided by much of the press, lies without consequence and is not held accountable for its actions. [You all know the particulars.]

Simply put, people need to learn that many of the administration’s policies could suck the chrome off a trailer hitch. Coming up with “big ideas” and neat slogans vis a vis national security will be insufficient as long as those in power can bullshit the American public as egregiously as this administration has done.

I have previously “noted”:http://www.armscontrolwonk.com/index.php?id=624 Wade Boese’s article explaining that, despite previous Bush administration claims, the BBC China interdiction was not a PSI operation.

For whatever reason, SecState Rice decided around that time to argue that the “PSI provided the framework for action in the 2003 interdiction of the ship BBC China,” rather than saying the interdiction _was_ a PSI operation.

Alas, whoever wrote “today’s Washington Times oped”:http://washingtontimes.com/op-ed/20050811-085817-3411r.htm with her name on it didn’t get the memo.

According to this gem:

bq. An early success of the PSI †the 2003 interdiction of the BBC China †shows how cooperative international efforts can stop proliferators in their tracks and prevent the exploitation of vital trade flows.

Strong work.

As most of you probably know, the recently-announced US-India agreement to pursue nuclear cooperation still has some obstacles to overcome in Congress.

So I thought I’d provide some information from people who are way smarter than I am on this issue.

1. “This CRS report”:http://fpc.state.gov/documents/organization/50809.pdf by Sharon Squassoni.

2. The summary at the bottom of the post. Unfortunately, I am not allowed to ID the author, but please believe me when I say s/he is on top of the issue.

My .02: the possible nuclear agreements coming down the pike would be problematic for several other reasons.

*First,* they would unquestionably “violate NSG guidelines”:http://www.armscontrol.org/factsheets/NSG.asp. According “to the NSG:”:http://www.nuclearsuppliersgroup.org/PDF/infcirc539r3.pdf

bq. a full-scope safeguards agreement with the IAEA [is] a condition for the future supply of Trigger List items to any non-nuclear-weapon State.

[BTW, another good, concise summary of the NSG can be found “here”:http://www.armscontrol.org/factsheets/NSG.asp.]

As Sharon points out, this could be a problem at a time when we’re trying to tighten the NSG rules. For example, here are some “US proposals”:http://www.whitehouse.gov/news/releases/2004/02/20040211-5.html from February 2004:

* the members of the Nuclear Suppliers Group [should] ensure that states which renounce enrichment and reprocessing technologies have reliable access, at reasonable cost, to fuel for civilian reactors.

* The 40 states in the Nuclear Suppliers Group should refuse to sell uranium enrichment or reprocessing equipment or technology to any state that does not already possess full-scale, functioning enrichment or reprocessing plants.

* …all states should sign the IAEA Additional Protocol, which greatly expands the Agency’s tools to detect clandestine nuclear activities. Signing of the Additional Protocol should be a condition for countries seeking equipment for their civilian nuclear programs by next year.

*Second,* the recent agreement appears contrary to the spirit of Article I of the NPT, which reads:

bq. Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

*Third,* it also seems to be in tension with Article III of the NPT. Here’s part of it, but go “read the whole thing:”:http://www.armscontrol.org/documents/npt.asp

1. Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this article shall be applied to all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.

2. Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this article

Needless to say, there’s a lot more to be said about this deal. And it’s pretty much all bad.

Anyway, here’s the text from the unnamed author, with some minor alterations:

*US Nuclear Cooperation with India: Legislative Implications*

*I. The Basics.* Under US law (the Atomic Energy Act), the United States can engage in nuclear cooperation with other countries only pursuant to an “Agreement for Cooperation”.

Nuclear cooperation in this sense covers the transfer of nuclear facilities and equipment, nuclear fuel and related nuclear materials, dual-use items, and technology (covering services, expertise, blueprints, etc).

Each of these items is licensed by a different US federal agency:

* The Nuclear Regulatory Commission licenses exports of reactors, nuclear equipment, and nuclear fuel.

* The Dept of Energy authorizes technology transfers.

* The Dept of Commerce authorizes exports of dual-use goods.

* The State Department negotiates the Agreements for Cooperation.

*II. Full-Scope safeguards*

Starting with the enactment of the Nuclear Non-Proliferation Act of 1978, “non-nuclear-weapon states” (as recognized in the NPT) must have IAEA safeguards over all of their nuclear materials — this is a necessary precondition for nuclear cooperation with the United States. In 1992, the Nuclear Suppliers Group finally endorsed this standard. In 1995 and in 2000, the states parties of the NPT also endorsed this standard. Such safeguards are not required of the five recognized nuclear-weapon states (US, Britain, France, China, and Russia). The Non-Aligned Movement (NAM) has also repeatedly endorsed this standard.

[snip]

*III. Agreements for Nuclear Cooperation*

Sec. 123 of the Atomic Energy Act lays out the basic requirements of US Agreements for Cooperation. Sec. 123(a)(2) requires all non-nuclear-weapon states to have full-scope IAEA safeguards. Agreements for Cooperation are negotiated by the Secretary of State, approved by the President, and sent to Congress (both houses), which has a fixed period of continuous session to review the agreement. Congress can adopt a joint resolution stating that it “does not favor” the Agreement — for agreements that the President exempts from any of the norma*l criteria (e.g. full-scope safeguards), such agreements shall not become effective without a joint resolution stating that the Congress “does favor” the agreement.

Sec. 129 spells out certain actions that would constitute “conduct resulting in termination of nuclear exports” . These include the following standards to apply to any non-nuclear-weapon state that has at any time since 10 March 1978 — (a) detonated a nuclear explosive device (India claims it detonated five in 1998); (b) terminated or abrogated IAEA safeguards (India’s 1974 test involved the use of plutonium from uranium and heavy that were covered by a “peaceful use” pledge); (c) materially violated an IAEA safeguards agreement; or (d) “engaged in activities involving source or special nuclear material and having direct significance for the manufacture or acquisition of nuclear explosive devices, and has failed to take steps which, in the President’s judgment, represent sufficient progress toward terminating such activities.”

*IV. Nuclear facilities, equipment, fuel, and materials*

The Atomic Energy Act provides the basic legal authority for the NRC to authorize the export of nuclear facilities, equipment, fuel, and materials. Sec. 126 outlines the basic export licensing process and Sec. 127 contains some specific criteria governing the approval of such exports.

Sec. 127(1) requires IAEA safeguards as required by Article III(2) of the NPT; it also prohibits the use of any exported item “for any nuclear explosive device or for research on or development of any nuclear explosive device.”

Sec. 128 states specifically that full-scope IAEA safeguards shall be “a condition of continued United States export of source material (e.g. uranium), special nuclear material (e.g. plutonium or enriched uranium), production or utilization facilities (e.g. fuel cycle plants or reactors), and any sensitive nuclear technology to non-nuclear-weapon states”. The specific licensing regulations published pursuant to this law are found in 10 Code of Federal Regulations Part 110. Sec. 110.42 spells out the criteria the NRC uses in issuing licenses — the first criterion is that IAEA safeguards “as required by Article III(2) of the NPT will be applied”; for non-nuclear-weapon states, full-scope IAEA safeguards are explicitly required in sec. 110(42)(a)(6). The criteria also provide that no export shall be used “for any nuclear explosive device or for research on or development of any nuclear explosive device.”

*V. Activities of US Citizens*

When other countries seek technical advice from US citizens relating to the use of nuclear materials, such individuals may provide such assistance but only as authorized by the US Secretary of Energy, pursuant to the terms of sec. 57(b) of the Atomic Energy Act. This law specifically makes it illegal for any person “to directly or indirectly engage in the production of any special nuclear material outside of the United States” except as specifically authorized under an agreement for cooperation and upon authorization by the Secretary of Energy.

The Department of Energy has issued regulations pursuant to this law in 10 Code of Federal Regulations, Part 810. These regulations provide the details of the licensing process, including the criteria that the Secretary “will take into account” in making the authorizations. The first such criterion is the existence of an agreement for cooperation. The second is whether the country is a party to the NPT. The third is whether the country has full-scope IAEA safeguards.

*VI. Dual-Use Goods*

Sec. 309(c) of the Nuclear Non-Proliferation Act of 1978 required the President to publish regulations to be implemented by the Department of Commerce for the control of the export of all items (except those that are NRC-licensed) that “could be, if used for purposes other than those for which the export is intended, of significance for nuclear explosive purposes.” These include so-called “dual-use” goods like special computers, lab equipment, machine tools, etc.

According to the “Commerce Country Chart” (15 CFR 738, suppl 1), exports to India are controlled for the following reasons (among others): chemical and biological weapons; nuclear non-proliferation; national security; missile tech; and regional stability. The Dept of Commerce has published several licensing standards governing the export of such items; these appear in 15 Code of Federal Regulations, Part 742.3. The items themselves are collectively called the “Nuclear Referral List” — these are simply goods that the Commerce Dept licenses that are controlled for nuclear non-proliferation reasons.

The specific licensing criteria appear in 15 CFR Part 742.3(b). Among these criteria to be applied are “the nonproliferation credentials of the importing country”, which are based on several factors, including: whether the state is a party to the NPT; whether it has full-scope IAEA safeguards; whether it has an agreement of cooperation with the US; whether the government of the importing country has policies that “are in support of nuclear nonproliferation”; the degree to which the government of the importing country “cooperates in non-proliferation policy generally”; and “information on the importing country’s nuclear intentions and activities.” In addition, goods may not be transferred if they “will be used directly or indirectly in any nuclear explosive activity or in any unsafeguarded nuclear activity (15 CFR 744.2).

Both Jeffrey and I have “written before,”:http://www.armscontrolwonk.com/index.php?id=688 about whether North Korea has a deliverable nuclear weapon.

Just to provide another data point, ROK intelligence reportedly “assessed in February”:http://news.yahoo.com/s/afp/20050727/pl_afp/nkoreanucleartalksweapons_050727033406 that Seoul’s northern neighbor may have nuclear devices, but probably can’t deliver them because they’re too heavy.

The relevant excerpt:

When North Korea said in February that it possessed nuclear weapons, confirming long-held suspicions in the United States, South Korea’s National Intelligence Service said Pyongyang probably lacked the technology to fire them on a rocket.

“North Korea might have developed one or two conventional nuclear bombs, but if it did, it may not have the technology to launch them on a missile,” the NIS report said.

“We believe North Korea has not acquired enough technology to miniaturize nuclear bombs which must weigh less than 500 kilograms to be mounted on a missile.”

I had seen the reporting about the NIS conclusions, but had forgotten about the 500 kg number.

Others are doing a fine job keeping up with the legal issues and day-to-day news regarding the whole Wilson/Plame/Rove thing.

However, as this “NYT oped”:http://www.iht.com/articles/2005/07/19/opinion/edrove.php points out, the Wilson affair is part of a larger issue: the administration’s deceptions regarding the Iraq WMD issue. Wilson simply (and correctly) pointed out that the Niger/Iraq/uranium intel was a relevant data point.

I realize that “we all know”:http://www.armscontrolwonk.com/index.php?id=439 the “right-wing line”:http://transcripts.cnn.com/TRANSCRIPTS/0507/17/le.01.htmthat (Rove was merely trying to set the record straight) is bullshit, but this silliness has gained enough currency in places like the “WSJ”:http://www.opinionjournal.com/editorial/feature.html?id=110006955 and “Slate”:http://www.slate.com/id/2122963/ where it should be convincingly and repeatedly refuted.

[As an aside,you’d expect this crap from the _WSJ_ oped page, but Slate should _really_ be embarrassed for printing the Hitchens screed.]

*First,* Rove was not correcting the record: he offered no substantive rebuttals of Wilson’s claims, the administration “knew by that time”:http://www.armscontrolwonk.com/index.php?id=600 how weak the Niger intel was, and both Tenet and the White House were admitting as much.

*Second,* any allegations of nepotism would have been meaningful if and only if Wilson had either botched the investigation or falsely reported what he found in Niger. He did neither.

* There is no evidence that Wilson failed to report evidence about a possible uranium transaction. Prior to Wilson’s trip, “according to the SSCI report,”:http://www.globalsecurity.org/intell/library/congress/2004_rpt/iraq-wmd-intell_chapter2.htm two other investigators had arrived at conclusions similar to Wilson’s, as had INR. All of this info was available by the time Rove started smearing Wilson.

Incidentally, the SSCI report explains that Wilson’s report wasn’t given to Cheney because it added nothing new to the intel (which the OVP had) showing how weak the Niger claim was.

*Third,* some on the right (including a “former roommate”:http://amindthatsuits.blogspot.com/2005/07/lets-go-back-back-to-days-of.html and current friend) still argue that the Iraq-Niger claim is actually true. It’s not.

* Let’s establish that the burden of proof is pretty high here. Neither Iraqi or Nigerien officials say the story is true. Furthermore, no official sources say it’s true. “The ISG found”:http://www.globalsecurity.org/wmd/library/report/2004/isg-final-report/isg-final-report_vol2_nuclear-03.htm “[n]o evidence… that Iraq tried to get uranium from Niger”. Indeed, Baghdad was offered uranium from another African country and turned it down.

* Iraqi officials did indeed meet several times with Nigerien officials, but for purposes unrelated to uranium, according to the ISG report- required reading for anyone claiming that Iraq could not possibly have been interested in any economic transactions with Niger that didn’t involve uranium.

* There is no other good evidence that Iraq tried to get uranium from Niger. People like Hitchens are still citing “these bullshit _FT_ articles”:http://cshink.com/iraq_had_talks_on_uranium.htm in an attempt to suggest otherwise, but I think all the official reports trump. We’ll get to the substance of the _FT_ claims in another post.

*Fourth,* The UK Butler report does not prove that Bush was right. “Jeffrey Lewis”:http://www.armscontrolwonk.com/index.php?id=599 and “Josh Marshall”:http://www.talkingpointsmemo.com/archives/week_2004_07_11.php#003169 have done a good job dissecting this claim. Bottom line: It looks doubtful that the UK has anything worth a damn.

As an aside, the Butler report still doesn’t disprove that Bush lied in his SOTU speech – Bush claimed that the administration had “learned” something from the UK which the United States IC actually believed to be false.

Anyway, the press needs to keep pushing the administration to explain its role in handling the Iraq intel. That ain’t happened yet.

I hate to contradict Scott Gearity, whose Export Control Blog is really sweet, but I have to disagree with “his take”:http://www.exportcontrolblog.com/blog/2005/07/this_could_be_s.html on “this Haaretz piece”:http://www.haaretzdaily.com/hasen/spages/603564.html.

According to the article:

French President Jacques Chirac has told Haaretz that if European negotiations with Iran fail to eliminate the threat of nuclear proliferation, then the issue will have to be moved to the UN Security Council.

Chirac’s statements regarding the possibility of imposing sanctions on Iran, which, according to observers, is the first time he has taken such a firm position in the matter, came in an interview with Haaretz on the eve of Prime Minister Ariel Sharon’s state visit to France Wednesday.

“I hope that [the European negotiations with Iran] will succeed and eliminate the danger of the proliferation of nuclear weapons,” Chirac said. “If this does not prove to be the case, it will, of course, be necessary to transfer the handling [of the Iranian problem] to the UN Security Council.”

Scott suggests that Chirac’s statement “could be significant in light of the ongoing EU3 negotiations with Iran over its nuclear program,” adding that

bq. … threatening to haul Iran before the Security Council isn’t the same thing as actually doing it, but for people who think that Americans and Europeans must work together on Iran to achieve a satisfactory outcome, Chirac’s comments should be welcome.

Chirac, however, wasn’t describing a new position. In a March letter to Solana, the EU3 “said”:http://www.ambafrance-us.org/publi/nff/NFF0503.pdf that “we shall have no choice but to support referring Iran’s nuclear programme to the UN Security Council” if Tehran doesn’t play ball.

Moreover, that letter was just a more explicit statement of the “EU3’s previous policy”:http://www.armscontrol.org/act/2005_04/Iran_EU.asp.

Agreed that it’s good to see Chirac standing firm on this issue, but I sometimes think that the press is a bit fixated on this “EU3=wuss” trope.

Wade Boese enters the race with “an excellent piece”:http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=9988 on the US opposition to FMCT negotiations.

Wade wrote “about the FMCT/CD goat rodeo”:http://www.armscontrol.org/act/2005_03/CD.asp a few months back, but here he succinctly summarizes how China called the administration’s bluff:

bq. The United States said for years that it would be willing to entertain talks on outer space in exchange for FMCT negotiations, but Beijing would not bite because it argued that the two subjects deserved equal treatment. Yet now that China has compromised and is willing to accept simply talks, “the Bush administration rejected it out of hand, effectively blocking any forward movement on an FMCT agreement,” explains Ambassador Robert Grey, who represented the United States at the conference from 1997 through 2001.

He also supplies a Bolton quote that I hadn’t heard before:

bq. The concern is that talks could open the door for further action. Emblematic of this deep-seated sentiment is then-Undersecretary of State for Arms Control and International Security John Bolton’s July 2001 admonition that “from little acorns, bad treaties grow.”

The Administration claimed the FMCT couldn’t be “effectively verified”, but Ambassador John Carlson “dissolves”:http://www.armscontrol.org/act/2005_01-02/Carlson.asp this argument. Also, check out “this press roundtable”:http://www.armscontrol.org/events/FMCT_Excerpts.asp featuring Robert Einhorn and David Albright’s thoughts on the subject.

_ACT_ editor Miles Pomper and I asked IAEA DG Mohamed ElBaradei about the FMCT a few months back. A fan of the treaty, ElBaradei had this to say about the verification question:

*ACT:* Could you elaborate a little bit more on that? As you know, the Conference on Disarmament is divided on the question over whether a fissile material cutoff treaty is effectively verifiable, and you just mentioned verification. Do you think such a treaty could be effectively verifiable?

*ElBaradei:* To me, to verify a cutoff treaty means that we have to verify all enrichment/reprocessing facilities and look for any such undeclared activities, which we do now in other countries. Basically, we will have to do the same in all nuclear-weapon states and the countries outside the NPT (India, Israel, and Pakistan). So, I don’t see anything about the fissile material treaty†again, just off the cuff†that is different from what we do now in other places.

*ACT:* But those are obviously states you’re generally looking at now that are nuclear-weapon states, right?

*ElBaradei:* Yes, but it is the same technique. We would be looking at all the facilities that are capable of producing either plutonium or highly enriched uranium, which is no different from what we do now. I’m not looking into the stockpiles, as far as I understand the cutoff. We are basically looking at future production, meaning that the existing facilities are under verification, that there are no undeclared facilities. So, as I said, I don’t see why we should not be able to verify a cutoff treaty.

But anyway, a fissile material cutoff treaty obviously would facilitate very much the question of management of the fuel cycle in the future because then at that time, if you have a universal cutoff, every enrichment plant in the world, every reprocessing plant in the world, would be under verification. Then it’s much easier to say, “Is that enough, or should we also have a multinational approach?” Right now of course, you have fuel cycle facilities in the military sector that are completely outside any verification at all, let alone multinational verification or multinational oversight.

But with the Bush administration’s attitude, my utility belt tells me it’s to the bar, Batman…

…just like “claiming that”:http://www.whitehouse.gov/news/releases/2005/06/20050623-8.html “[President Bush] took advantage of every possibility to try to resolve this without having to use military force” doesn’t make it true – even if you’re the Vice President.

Yes, _ACW_ readers know that the administration was lying. But the administration and its right –wing fluffers keep insisting that Bush exhausted all peaceful options. And those clowns need to be rebutted.

As I’ve “said,”:http://www.armscontrolwonk.com/index.php?id=439 there has been ample evidence – even leaving aside some good postwar reporting – that the administration was using the inspections process as a pretext for war.

Exhibit A: the persistent US complaints that Iraq was shooting at US planes enforcing the No-FlyZones over Iraq.

Michael Smith “recently wrote”:http://www.commondreams.org/views05/0623-25.htm that “the Downing Street Memo”:http://www.timesonline.co.uk/article/0,,2087-1593607_2,00.html

quotes British Defense Secretary Geoff Hoon as saying that “the U.S. had already begun ‘spikes of activity’ to put pressure on the regime.”

[snip]

Put simply, U.S. aircraft patrolling the southern no-fly zone were dropping a lot more bombs in the hope of provoking a reaction that would give the allies an excuse to carry out a full-scale bombing campaign, an air war, the first stage of the conflict.

British government figures for the number of bombs dropped on southern Iraq in 2002 show that although virtually none were used in March and April, an average of 10 tons a month were dropped between May and August.

Smith adds that the US and UK then “dramatically intensified the bombing into what was effectively the initial air war” after Iraq didn’t take the bait.

That November, the US argued that Iraq was in material breach of “UNSCR 1441”:http://daccessdds.un.org/doc/UNDOC/GEN/N02/682/26/PDF/N0268226.pdf?OpenElement because Iraqi soldiers were firing on the US planes.

At the time, I “wrote”:http://www.armscontrol.org/act/2002_12/iraq_dec02.asp

The no-fly zones enforced by the United States and United Kingdom over Iraq could also provide a trigger for war.

[snip]

White House Deputy Press Secretary Scott McClellan said November 18 that firing on coalition aircraft is a “material breach” of the resolution. McClellan said that Washington reserves the right to take such incidents to the Security Council but had no immediate plans to do so. [UNSG Kofi] Annan stated that it was unlikely that the Security Council would consider shooting at U.S. planes a material breach of the resolution…

Remember, this was _before_ the inspectors even returned to Iraq.

The US, shockingly, was on pretty shaky legal ground:

The United States argues that paragraph 8 of Resolution 1441 supports the U.S. case. That paragraph reads: “Iraq shall not take or threaten hostile acts directed against any representative or personnel…of any Member State taking action to uphold any Council resolution.” Resolution 1441 does not specifically mention no-fly zones, however.

Washington argues that the no-fly zones implement Security Council resolutions because they protect Iraq’s minority populations, prevent Iraq from threatening its neighbors, and monitor cease-fire conditions on Iraq. Specifically, the United States cites Resolutions 678, 687, 688, and 949. This position is controversial; none of the resolutions mention no-fly zones, and Annan stated July 5 after a meeting with Iraqi officials that the no-fly zones are not Security Council policy. Iraq has long opposed the zones, saying they violate its sovereignty and the UN Charter.

Other Security Council members’ views on the matter are mixed. Russia argued in a November 19 statement from the Foreign Ministry that the zones are not covered by any Security Council resolutions and that Washington’s arguments with respect to Resolution 1441 “have no international-legal foundation.” A spokesperson for the French Foreign Ministry would not take a position on the zones’ legality or Washington’s contention that Iraqi threats to coalition aircraft constitute a material breach of the resolution, according to a November 19 statement. China had no comment on Washington’s interpretation of the resolution….

According to a “different UK memo”:http://thinkprogress.org/wp-images/upload/iraqlegalbackground.pdf , London also disagreed with the US position. The UK argued that the zones monitored compliance with “UNSCR 688”:http://www.fas.org/news/un/iraq/sres/sres0688.htm and specifically disagreed with the US position that the NFZs also enforced “UNSCR 687”:http://www.fas.org/news/un/iraq/sres/sres0687.htm.

This distinction is, I think, important because 1441

set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council.

But 688 had f*ck-all to do with disarmament. Seems to weaken the US legal case, no?

Anyway, please mock apologists for Bush _et al’s_ goat rodeo mercilessly…