Passing on Zarqawi

Daveed Gartenstein-Ross & Adam White, The Weekly Standard: Behind the administration's decision not to kill Abu Musab al-Zarqawi in 2002.

BEFORE THE DUST SETTLED on the rubble that had been Abu Musab al-Zarqawi's safe house, critics of the Bush administration were already arguing that our latest battlefield success in Iraq had to be measured against the administration's failure to kill Zarqawi back in 2002. But a full understanding of the situation the administration faced when it had the opportunity to strike Zarqawi in 2002 shows that this was not a simple case of Bush administration blundering--even if, in hindsight, the decision was a mistake. READ MORE

The background for this most recent criticism of the administration's performance in Iraq comes from a 2004 report that appeared in the Wall Street Journal and on NBC. In 2002, the Pentagon had formulated a plan to attack Zarqawi's operations in northern Iraq (where he had relocated after leaving Afghanistan) using cruise missiles and airstrikes. The administration didn't give a green light to this operation. The Journal quoted the criticisms of former NSC counterterrorism director Lisa Gordon-Hagerty ("I said why didn't we get that ['son of a b--'] when we could."), while NBC reported similar remarks from former NSC member Roger Cressey.

Such criticism reappeared last week in Newsweek's coverage of Zarqawi's death. The magazine attributed the decision not to strike Zarqawi to the administration's desire to "exploit" him as proof of connections between Iraq and al Qaeda.

BUT TO SUGGEST that it was a no-brainer for the U.S. to attack northern Iraq in 2002 ignores a couple of key considerations. If the administration had struck
Zarqawi then, it would have met a torrent of criticism for allegedly violating international law--criticism that could have interfered with its diplomatic efforts preceding the 2003 invasion.

In 2002, Zarqawi's base in Iraq was located in the northern No-Fly Zone, a region above the 36th parallel which a U.S.-led coalition prevented Iraqi aircraft and ground forces from entering. The U.S., France, and Britain established that NFZ in April 1991, following the ceasefire that ended the Gulf War, in order to protect the inhabitants of northern Iraq from violence at the hands of Saddam's regime. (A second NFZ was established later, south of Baghdad.) The coalition cited as justification four Iraq-related U.N. Security Council Resolutions: Resolution 678 (authorizing the coalition to use "all necessary means to uphold and implement" the previous Kuwait-protection resolution"), Resolutions 686 and 687 (outlining the postwar ceasefire), and Resolution 688 (responding to "the repression of the Iraqi civilian population"). But none of these resolutions specifically provided for a NFZ.

The lack of specific authorization for a NFZ resulted in critics on both the left (such as the New York Times editorial page) and the right (such as conservative national security law scholar Scott Silliman). Throughout the 1990s, the Clinton administration maintained this controversial legal position by operating under rules of engagement that circumscribed its efforts in the northern NFZ to prevent the Iraqi government from oppressing its people or targeting coalition personnel and resources.

But in the run-up to the 2003 war, the NFZs came under even heavier criticism. Critics suspicious of the Bush administration's plans argued that the administration would use heightened engagement in the NFZs as a pretext for war.

Thus, in 2002, as the Bush administration was attempting to amass support in Congress and the U.N. Security Council for an invasion of Iraq, broader rules of engagement in the NFZ would have undermined diplomatic efforts. Secretary General Kofi Annan made clear that America's claim to authority for the NFZs was not a popular position. By September 2002, the Russian Foreign Ministry announced its position that "Anglo- American bombing raids in no-fly zones not only deepen the complicated atmosphere around Iraq but create obstacles in the search for a political-diplomatic settlement of the Iraq question." A joint press Rumsfeld-Myers press conference in September 2002, reporters peppered the Secretary of Defense and the Chairman of the Joint Chiefs of Staff with challenges to the decision to enforce the NFZs so fiercely amidst the diplomatic process. To begin bombing installations that were not associated with Saddam's force projection in the region would have made the coalition's unpopular program even more problematic.

Previous expansions of the NFZ program had been met with fierce criticism. In 1996, when President Clinton expanded the southern NFZ, international allies (such as France) refused to cooperate with the new bombing operations. And that expansion targeted the machinery of the Hussein government; further expansion targeting Iraqi inhabitants whose connection to the government was a subject of dispute would have been more difficult to justify.

The summer before the Iraq invasion was one replete with Democrats calling for a slow debate of the Iraq issue. Rapid escalation of military operations under new rules of engagement would not have pleased those calling for restraint, including Senators Feinstein and Leahy, who introduced a resolution "expressing the sense of Congress that the United States should not use force against Iraq, outside of the existing Rules of Engagement, without specific statutory authorization or a declaration of war."

Moreover, increased bombings in the region would also have increased the risk of civilian casualties, possibly undermining Arab support for a full invasion in 2003.

BUT THE BIGGEST IRONY in the current round of second-guessing the administration's failure to strike Zarqawi in 2002 is the criticism such critics usually direct at any actual attacks carried out on foreign soil. When a January airstrike in Pakistan failed to kill its target, bin Laden deputy Ayman al-Zawahiri, it was condemned as illegal and a tactical blunder, notwithstanding the fact that the attack eliminated several al Qaeda leaders.

Legal Scholars Amos Guiora and Martha Minow wrote in the Boston Globe just after the strike, "The airstrike in Damadola, Pakistan, on Jan. 13 is yet another example of how the Bush administration's policies are harming the interests of the United States. . . . By violating the sovereignty of an ally, we embarrassed a key U.S. partner in the fight against terrorism and jeopardized General Pervez Musharraf's already tenuous hold on power as president of Pakistan. . . . The violation of Pakistan's sovereignty in contravention of international law raises a red flag about what legal advice was rendered or followed prior to the attack."

Can there be any doubt that a strike against Zarqawi would have met with a similar response back in 2002?

Just as the failure to kill Zarqawi in 2002 provides context for his 2006 death, so too does the international political situation in the lead-up to the Iraq war provide context for the administration's decision not to strike. And it should be kept in mind that the current enthusiasm of administration critics for airstrikes on foreign soil will provide context for any future criticism of the practice.

Daveed Gartenstein-Ross is a senior consultant for the Gerard Group International LLC. His first book, My Year Inside Radical Islam, will be published in Winter 2007 by Tarcher/Penguin. Adam White was recently a clerk on the U.S. Court of Appeals for the D.C. Circuit. He is a contributor to Intel Dump, where he writes on national security law.