GIVE WAR A CHANCE   [Cont'd]

For the United States to act on a threat preemptively (or, in the case of Iraq, preventively) required a new national security doctrine. Aware of this, on September 20, 2002, the Bush administration articulated the need to act against "emerging threats before they are fully formed" in its new National Security Strategy [19]. The advocacy of anticipatory self-defense is nothing short of a revolution in US foreign policy. Yale History Professor John L. Gaddis calls it "the most important reformulation of US grand strategy in over half-a-century." Recent presidents considered—and swiftly rejected—preemptive attacks, following Truman's advice that "you don't prevent anything by war... except peace." The doctrine flies in the face of international and US law. As Yale Law Professor Bruce Ackerman points out [20],

[The US Constitution] declares that treaties approved by the Senate are the "supreme Law of the Land" and it explicitly requires the president to "take care that the laws be faithfully executed." The UN Charter is a solemn treaty overwhelmingly ratified by the Senate in the aftermath of World War II.

It just so happens that the UN Charter explicitly prohibits preemptive (let alone preventive) strikes, except in cases of immediate self-defense. For this reason, Condi Rice's National Security Strategy required at the very least new legislation from Capitol Hill. Instead, the US Congress turned a blind eye and swallowed the Strategy wholesale.

Aside from legal considerations, what are the practical ramifications of the Strategy? It is obviously a major destabilizing factor for dueling countries, eg, India vs Pakistan or China vs Taiwan. If X feels threatened by Y, it might be tempted by the use of preemptive self-defense. This alone might cause Y to feel threatened by X and, in turn, consider a preemptive strike on X. But, of course, this would only add to X's original mistrust, thus fueling a self-reinforcing feedback loop of mutual suspicion. The Strategy also encourages dictatorships everywhere to follow the North Korea model and speed up the development of nuclear weapons in order to deter a US invasion.

As Ackerman reminds us, the limited doctrine of self-defense enshrined in traditional law goes back to the Nuremberg trials, whose main focus was not, as is commonly believed, the prosecution of genocide but the condemnation of aggressive wars. The classic case of preventive warfare is Pearl Harbor. Japan was under a US-imposed oil embargo in 1941 and felt threatened. Was it thus justified in attacking the United States? The UN Charter says no. The National Security Strategy says yes.

No one disputes the intuitive appeal of preemption: Hit 'em before they hit you. But how sure are you they have it in for you? What if you attack them because of a threat of WMD only to discover later that they have no such weapons? (Not that this would ever happen to us, of course.) Bush's solution to this conundrum—and to the Pearl Harbor paradox—is the sort of exceptionalism that does not even pass the laugh-test. It goes like this. The risks of error are, indeed, high enough that preemption should be the exclusive right of the good guys (that's us). The National Security Strategy puts it more delicately [19]:

... nations [should not] use preemption as a pretext for aggression.

Translation: We preempt; you don't. Mercifully, the document reassures the world that we can be trusted to preempt in moderation.

The United States will not use force in all cases to preempt emerging threats.

Why not in all cases? Why such lily-livered restraint? Really, who writes this sort of thing: an assembly of fifth-graders? University of Chicago History Professor Bruce Cumings is kinder: "[the logic] would flunk even a freshman class."

Which brings us back to Iraq. The Strategy had no legal value, so what did the law say? International lawyers are unanimous [21]: The war was illegal. In no way did UN Resolution 1441 [36] or any of its predecessors give legal authority for an attack on Iraq. Those who disagree are about as numerous as the WMD buried in Saddam's backyard.

Legalism, shmegalism! Didn't Tony Blair speak of WMD deployments on 45 minutes' notice? Didn't Condi Rice famously suggest that the smoking gun might come in the shape of a mushroom cloud? Don't talk to us about legalism!

REFERENCES

[19] The National Security Strategy of the United States of America, The White House, September 17, 2002.

[20] But What's the Legal Case for Preemption? by Bruce Ackerman, Washington Post, August 18, 2002.

[21] Law unto Themselves, by Richard Norton-Taylor, The Guardian, March 14, 2003.

[36] UN Resolution 1441, The Security Council, November 8, 2002.