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4/26/03

Preemption and Legitimacy:

American Power and the Future of World Order

 

 

Dr. Michael O. Wheeler

Strategies Group, SAIC

McLean, Virginia

 

The remarks in this paper represent the personal views of the author and should not be attributed to SAIC or to any other organization with which the author is affiliated. Comments are welcomed. The author can be reached at:

 

Phone (703) 676-5992

e-mail wheelerm@saic.com

 

 

Introduction.

 

Right, as the world goes, is only in question between equals in power, while the strong do what they wish and the weak suffer what they must.

The Athenian answer to the Melian demarche to remain neutral in the Peloponnesian War, cited by Thucydides, History of the Peloponnesian War, c. 410 BC, trans. by Richard Crawley, 1996.

 

What I say is that ‘just’ or ‘right’ means nothing but what is in the interest of the stronger party."

A view attributed to the Sophist, Thrasymachus, by Plato, The Republic, c. 380 BC, trans. by Francis MacDonald Cornford, 1941.

 

Surely it must be admitted, then, that might does not make right, and that the duty of obedience is owed only to legitimate powers.

Jean-Jacques Rousseau, The Social Contract, 1762, transl. by Maurice Cranston, 1968.

 

 

Most people in Western democracies (perhaps all democracies) are uncomfortable with the assertion that might makes right, that justice is nothing more than the stronger arbitrarily dictating to the weaker, that the strong are free do what they wish and the weak must suffer what they cannot avoid. Realistically, we recognize that the strong certainly may be able to dominate the weak, at least on many occasions, and that the strong may even dictate the rules. We also sense, however, that experience shows such a state of affairs to be highly unstable. Throughout history, some minimal acknowledgment of legitimacy has been a necessary, although not sufficient, condition for long-term stability in a political order. As Jean-Jacques Rousseau observed in 1762: "The strongest man is never strong enough to be master all the time, unless he transforms force into right and obedience into duty."

 

How is legitimacy achieved, why is it lost, once lost how can it be restored—there are no simple answers. Scholars have puzzled over these questions for centuries. The questions are important today in the aftermath of the ongoing Iraq war. As this paper is being written, American and British armed forces still are fighting in Iraq in one of the most controversial military actions in modern history—an action that much of the world sees as, in some sense, illegitimate. American and British authorities assert the legitimacy of their actions, and American officials have suggested that once democracy comes to Iraq, others will come around to this point of view. Although the American-led effort has achieved a stunning near-term military victory, how the war ends and what happens afterwards remain highly uncertain.

 

Surveys immediately prior to the start of Operation Iraqi freedom in March 2003 showed large majorities in almost every country in the world opposed to the U.S.-led military action against Saddam Hussein’s regime. This had been preceded by a number of major surveys released in late 2002 indicating a dramatic upswing in anti-American sentiment over the past year—in essence, a reversal of the first response in all but the Islamic world after 9/11 that "we are all Americans now." Notwithstanding the legal position taken by the American and British Governments that the invasion of Iraq was authorized by existing Security Council resolutions (a point I will return to later), many saw Operation Iraqi Freedom as one commentator put it in the Financial Times, as "the first fought under the doctrine of preventive war." And there is considerable anxiety worldwide as to what is to follow, given the ambiguities in the Bush doctrine.

 

Once Operation Iraqi Freedom was underway, Secretary of State Colin Powell, in an interview with Leslie Stahl on a CBS news special, acknowledged that anti-American sentiment around the world had grown dramatically worse but argued that once the war was over and the people of Iraq are liberated, "I think those opinions and those attitudes will change rapidly." That depends, of course, on how things transpire. The late British scholar, Sir Isaiah Berlin, in a speech read in Turin, Italy, in 1988 at the ceremony at which he was awarded the first Senator Giovanni Agnelli International Prize ‘for the ethical dimension in advanced societies’, discussed the cautions incident to joining good intentions to power to try to reshape the world. "We can save men from hunger or misery or injustice," he said, "we can rescue men from slavery or imprisonment….but every study of society shows that every solution creates a new situation which breeds its own needs and problems, new demands,…[which] even if they can in turn be solved, generate new situations, and with them new requirements—and so on, for ever—and unpredictably." That is the nature of social engineering. ‘Liberating’ the people of Iraq will be a work in progress for some time.

 

It is far too early to tell what will happen in and because of Iraq but it is not too early to think about the precedents it sets and to examine what it may portend for the future stability of world order. Henry Kissinger asserts that the invasion of Iraq to liberate the people and depose Saddam Hussein will "require the re-examination of the basic assumptions of the last 50 years." In the spirit of that re-examination, this paper explores the relationship between the doctrine of preemptive (or preventive) war, the legitimacy of American actions in Iraq and beyond, and the prospects for long-term stability in the post-Iraq world order.

 

As a starting point, it is useful to review some of the highlights of the debate among foreign policy intellectuals that preceded the current conflict.

 

 

 

 

 

 

 

 

 

Behind these views—and many others like them—lie a number of questions. What does the Bush doctrine of preemption mean? How does preemption fit into the evolving norms of international conflict? What does just war theory have to say about preemption? Can a new concept of preemption be formulated that is accepted as legitimate by our friends and allies and by much of the rest of the world? If not, what are the prospects for stability in the emerging world order?

 

Preemption and the Bush doctrine.

States like [Iraq, North Korea, Iran]…and their terrorists allies, constitute an axis of evil, arming to threaten the peace of the world. By seeking weapons of mass destruction, these regimes pose a grave and growing danger….I will not wait on events, while dangers gather. I will not stand by as the peril draws closer and closer. The United States of America will not permit the world’s most dangerous regimes to threaten us with the world’s most dangerous weapons."

President George W. Bush, State of the Union Message, 29 Jan 2002.

For the United States, September the 11th, 2001 cut a deep dividing line in our history—a change of eras as sharp and clear as Pearl Harbor, or the first day of the Berlin Blockade. There can be no lasting security in a world at the mercy of terrorists—for my nation, or for any nation….The authors of terror are seeking nuclear, chemical and biological weapons. Regimes that sponsor terror are developing these weapons and the missiles to deliver them. If these regimes and their terrorist allies were to perfect these capabilities, no inner voice of reason, no hint of conscience would prevent their use….Call this a strategic challenge; call it, as I do, axis of evil; call it any name you choose, but let us speak the truth. If we ignore this threat, we invite certain blackmail, and place millions of our citizens in grave danger.

President George W. Bush, Address to the German Bundestag, 23 May 2002.

 

The gravest danger to freedom lies at the crossroads of radicalism and technology. When the spread of chemical and biological and nuclear weapons, along with ballistic missile technology—when that occurs, even weak states and small groups could attain a catastrophic power to strike great nations. Our enemies have declared their intention, and have been caught seeking these terrible weapons. They want the capability to blackmail us, or to harm us, or to harm our friends—and we will oppose them with all our power.

President George W. Bush, West Point, New York, June 1, 2002.

 

We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends….To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

The White House, The National Security Strategy of the United States of America, September 2002.

 

We will not permit the world’s most dangerous regimes and terrorists to threaten us with the world’s most destructive weapons. We must accord the highest priority to the protection of the United States, our forces, and our friends and allies from the existing and growing WMD threat.

The White House, National Strategy to Combat Weapons of Mass Destruction, December 2002.

 

 

The doctrine of preemption was hinted at obliquely in the January 2002 State of the Union message (delivered some three months after the traumatic events of 11 September 2001), inserted somewhat less obliquely into President Bush’s prepared remarks for the German Bundestag in May 2002, unveiled in the President’s graduation address at West Point in June 2002, formalized in the White House National Security Strategy document released to the public on 20 September 2002, and repeated in the December 2002 National Security Strategy to Combat Weapons of Mass Destruction. There still remain fundamental questions about what it is and what it means. To explore these issues, it is instructive to begin with a brief summary of the events leading to its gestation.

 

American official thinking on preemptive and preventive military actions is not new. Prior to the Cold War, the United States undertook a number of military activities that could be construed to be preemptive or preventive in nature. During the Cold War, American authorities debated on at least two occasions whether preventive war was desirable—early in the Cold War when the Soviet Union was just acquiring nuclear weapons, and during the early 1960s preceding China’s first nuclear test. Cold War crises (perhaps most notably the Cuban missile crisis of 1963) saw the United States prepared to engage in preemptive military action. And there is considerable circumstantial evidence that during the 1950s and perhaps even into the early 1960s, American presidents retained an option to launch a first strike on Soviet nuclear forces in the event of compelling evidence that the Soviets were about to begin a nuclear war.

 

With the end of the Cold War, one set of threats and fears faded to be replaced by new concerns—ethnic turmoil and civil wars, the uncertain transition of Russia to its post-imperial world, the growth of a strong China with uncertain ambitions, rogue states acquiring weapons of mass destruction, newly empowered terrorism. Preemptive and preventive military actions were part of the national security strategy of the Clinton administration but were not elevated to a central position. Retaining these preemptive options in the background may also have been the case for the current Bush administration as well, had it not been for the devastating, transforming events of 11 September 2001—the terrorist attacks on World Trade Center and the Pentagon that awakened the United States to the fact that it indeed was in a new war, one still poorly understood in many ways, a war for which America’s past war experiences had not prepared it well, but one in which—if global terrorists like Osama bin Laden and his al-Qaeda operatives obtain and use weapons of mass destruction—would be even more devastating. A single nuclear weapon exploded by terrorists in a major American city would be an unprecedented disaster and might happen with little or no warning before the mushroom cloud. Biological attack on the American population or on its livestock and agricultural industries also could be devastating, and while less threatening, even limited use of chemical or radiological weapons could have disproportionate effects on American security. The anthrax attacks through the American postal system (still unexplained) in the days following 9/11 underline these fears.

 

In the months following 9/11, the discovery of a number terrorist planning documents and accumulated information from interrogation of prisoners clarified how determined al-Qaeda was to get and use WMD. It also became clear, as the United States reoriented its massive intelligence and analytic infrastructure to thinking about the new threat environment, how uncertain and problematic it was to get actionable intelligence that would allow authorities to have a chance to intercept and defeat mega-terror attacks. If the attacks could not be deterred (which seemed, as analysts thought about it, highly unlikely) by the threat of retaliation (where would you retaliate), then the imperative of preemption jumps to the head of the line.

 

The concept of preemption, and the language President Bush used in discussing it, suggested several things. As the President and his senior officials repeatedly emphasized, there are a number of means of preemptive action, not all of which require military force—e.g, proactive diplomacy, criminal investigations and seizures, tighter laws, cutting off finances, and the like. There also are two broad timelines for thinking about preemption. One is to intercept and defeat an action already begun, e.g., intercepting a terrorist trying to smuggle a nuclear weapon into the United States. The other is to prevent the action from beginning in the first place, e.g., launching preventive actions to secure WMD before terrorists can acquire them. A further ambiguity arises when one reads the new Bush doctrine in conjunction with what also has been stated publicly about the Nuclear Posture Review (NPR). Preemption also might mean preemptively attacking the weapons of mass destruction facilities in a rogue state, either before or during a conflict, and perhaps even with first use of nuclear weapons.

 

Much remains to be clarified about the doctrine of preemption. Senior officials have tried to place it in context and narrow its range. For instance, during the White House press background briefing that accompanied release of the new National Security Strategy on 20 September 2002, an unidentified administration spokesman, speaking on background, briefed the press on the new strategy. The question was asked about the conditions for using preemptive force and whether those conditions applied in Iraq. The official avoided directly answering the query on Iraq, noting simply that "we think preemption is a narrow end of a long band of options."

 

That same day (20 September), following a meeting of the U.S.-Russian Consultative Group on Strategic Issues in Washington, D.C., the Secretary of State was asked by a correspondent to comment on what the new preemptive policy entailed. Aware of the concerns expressed at home and abroad about American policy, Secretary Powell tried to lower the profile of preemption by pointing out that some form of preemptive action always has been part of American security strategy and simply was receiving higher visibility now because of the new focus on terrorism.

 

On 1 October 2002, in prepared remarks in New York City, the National Security Advisor reiterated the theme that preemption is not a new concept, and cast the discussion in terms of the legal doctrine of anticipatory self-defense, citing the Cuban missile crisis of 1962 and the crisis on the Korean peninsula in 1994 as two cases where the United States previously had reserved the right to act preemptively. She went on to argue that "this approach must be treated with great caution. The number of cases in which it might be justified will always be small. It does not give a green light—to the United States or any other nation—to act first without exhausting other means, including diplomacy. Preemptive action does not come at the beginning of a long chain of effort. The threat must be very grave. And the risks of waiting must far outweigh the risks of action."

 

The State Department Legal Adviser, in remarks at a roundtable co-sponsored by the Council on Foreign Relations and the American Society of International Law (18 November 2002) addressed the issue directly, arguing that "in the era of weapons of mass destruction, definitions within the traditional framework of the use of force in self-defense and the concept of preemption must adapt to the nature and capabilities of today’s threats." He concluded that notwithstanding the change in the threat environment, the president’s national security strategy retains the same legal framework applied to earlier cases, namely:

The United States reserves the right to use force preemptively in self-defense when faced with an imminent threat. While the definition of imminent must recognize the threat posed by weapons of mass destruction and the intentions of those who possess them, the decision to undertake any action must meet the test of necessity. After the exhaustion of peaceful remedies and a careful deliberate consideration of the consequences, in the face of overwhelming evidence of an imminent threat, a nation may take preemptive action to defend its nationals from unimaginable harm.

John Lewis Gaddis, a Yale professor and one of America’s foremost authorities on the history of American grand strategy during the Cold War, was one of the first to weigh in with a detailed—and for the most part, highly complimentary—critique of the new national security strategy. Although preemption did not figure prominently in Gaddis’s comments he did note that "[p]reemption requires hegemony," something that Gaddis thought at the time of his writing might be sanctioned by the other great powers, but might also be derailed "if the United States takes on Saddam Hussein."

 

Stanley Hoffmann, a university professor at Harvard, one of America’s foremost authorities on Europe, is more critical of the new Bush doctrine and its implications that the U.S. intends to embrace force without restraint. As Hoffman argues, "the Bush doctrine proclaims the emancipation of a colossus from international constraints….In context it amounts to a doctrine of global domination."

 

John Norton Moore, professor of national security law at the University of Virginia, one of the founders of that sub-discipline, writes that "the President is not well-served by those who espoused the doctrine of preemption in the recent National Security Strategy of the United States." Moore argues that the doctrine "is both costly and unnecessary," summarizing his view as follows:

The United States has an important and enduring national security interest in a strong international legal regime regulating the use of force. To imply a return to the Melian dialogue of might makes right, which despite the real intent behind the doctrine is how others may interpret it, is counter to our own long-term national interest in a stable legal regime. And to substitute a non-legal preemption doctrine for a serious legal justification on the merits is to lose all opportunity to influence the development of good law that will hold aggressors to their international obligations. Further, no matter how strong the legal basis for our future actions, our enemies will say that America was simply following a policy of national expediency.

In the specific case of Iraq, Moore recommended during the buildup to Operation Iraqi Freedom that, if the administration decided to use force to compel Iraq’s compliance with its international obligations to destroy its WMD, the U.S. should not attempt to justify its use of force on the grounds of an ambiguous doctrine of preemption, but instead defend the actions under authority still resident in Resolution 687. Of course, Moore argued, another Security Council resolution authorizing the use of force would constitute a ‘legal gold standard’ (Moore’s phrase), but—although others in the absence of a new resolution would challenge the claimed legal basis—the American Government has a stronger legal argument today than the one it used during the Cuban missile crisis. Further, Moore argues, not reverting to claims based on the grounds of a right of preemption better serves the cause of world order and rule of law because it reinforces the seriousness of compliance with the Security Council’s cease-fire conditions.

 

In fact, this is the legal case used by the British Government in justifying its participation in the liberation of Iraq, namely, that a material breach of resolution 687 revives the authority to use force under resolution 678 and, in resolution 1441, the Security Council has determined that Iraq has been and remains in material breach of resolution 687. This also was the principal argument used by White House when it informed Congress of its intent to use armed force against Iraq, and in the letter formally submitted to the Security Council by the United States on 20 March 2003. I say ‘principal’ argument because, in the report to Congress, the phrase is added: "And, of course, based on existing facts, including the nature and type of the threat posed by Iraq, the United States may always proceed in the exercise of its inherent right of self defense, recognized in Article 51 of the UN Charter"—the implication that even if the U.S. could not sustain the legal case on the basis of existing Security Council resolutions, authority to go to war with Iraq resided in the ‘inherent right of self defense’ under Charter law.

 

Debate continues on the Anglo-American legal claims. A large segment of the international community has not accepted these arguments. UN Secretary General Kofi Annan, speaking at The Hague on 10 March 2003, while the Americans and British were still engaged in a strong lobbying effort to secure a second Security Council resolution (the ‘gold standard’ referred to by John Norton Moore), warned that if the allies did not win approval from the Security Council for an attack on Iraq, they would be violating the UN charter.

 

Returning to the central question of this paper—the legitimacy of the doctrine of preemption and its relationship to stability in world politics—it is helpful to review two sets of issues more fully. First, how has the concept of preemption traditionally been treated in international law, and how might we expect the arguments to unfold after Iraq? Second, where do preemption and the Iraqi case fit in traditional just war theory?

 

Preemptive military action and contemporary international law.

 

While it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to cases in which the "necessity of self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation."

Secretary of State Daniel Webster’s Letter to Lord Ashburton, August 6, 1842, in the continuing dialogue on the Caroline case.

 

 

 

Whether the provisions of the United Nations Charter that attempt to make international aggression illegal are in fact norms of the living law of the international community, or accepted aspirations for is future development, or on the other hand, no more than idle fancies and deceptive rhetoric, is the overarching political question confronting every nation today.

Eugene V. Rostow, Toward Managed Peace (Yale, 1993).

 

Is the United Nations Charter the governing norm for answering the question of when a state may legally use armed force, and if so, is the Bush doctrine of preemptive action consistent with this norm?

 

When the United Nations Charter was crafted at San Francisco at the end of World War II, its authors aspired to create a new world order in which recourse to force would be smothered with restrictions. Article 2(4) of the Charter established a legal obligation to refrain from any threat or use of force, except for force used in self-defense as laid out in Article 51 or force authorized by the Security Council in accordance with Chapter VII. This was intended to define the new jus ad bellum—the law of war. It was based on a value hierarchy reflecting the experiences of the first half of the 20th century. It sought to stabilize the world order on the foundation of this value hierarchy, with a new legal order for the use of force and with new institutional arrangements.

 

The United States was, in many ways, the driving force behind creation of the United Nations and its legal framework. Woodrow Wilson succeeded after the First World War in galvanizing the world to create a League of Nations, an organization the United States refused to join in large part because of Woodrow Wilson’s political handling of the situation. The 1928 Kellogg-Briand Pact (formally, the Treaty Providing for the Renunciation of War as an Instrument of National Policy) that had been negotiated and signed by Calvin Coolidge’s second secretary of state, Frank B. Kellogg, and by Aristide Briand, French foreign minister, outlawed war. Eventually 62 nations signed the treaty. The Kellogg-Briand Pact often is decried as an example of the most wildly utopian type of scheme, resting as it did on the moral force of world opinion, but critics miss the point that it formed a large part of the basis for the legal theory that Henry Stimson and Franklin Delano Roosevelt embraced as they approached the end of the war with Germany, to establish in international law the principle that launching an aggressive war was criminal.

 

When Franklin Delano Roosevelt met with Winston Churchill in Argentia Bay off the coast of Newfoundland in August 1941, FDR insisted on a public statement of principles on which the national wartime policies of the two countries would be based, in order to offer a vision of the type of world order free nations were fighting for. Churchill concurred, proactively worked the problem, and the result was the Atlantic Charter—a joint declaration issued on 12 August 1941. Asserting that the two allies neither sought aggrandizement—territorial or otherwise—from the war, nor territorial changes not in accord with the freely expressed wishes of the peoples concerned, the eighth point laid out their vision of the new world order after defeat of the fascist challenge:

[A]ll nations of the world, for realistic as well as spiritual reasons, must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea, or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers, they believe, pending the establishment of a wider and permanent system of general security, that the disarmament of such nations is essential. They will likewise aid and encourage all other practicable measures which will lighten, for peace-loving peoples the crushing burden of armaments.

The importance of this pledge, as Churchill recalled in his memoirs, was in the fact that it asserted "a plain and bold intimidation that after the war the United States would join with us in policing the world until the establishment of a better order."

 

The United States was not yet at war. That would not take the shock of Pearl Harbor. Even with Pearl Harbor, there is a broad body of evidence pointing to the very real possibility that had Hitler not made the mistake several days later of declaring war on the United States, FDR would have faced considerable domestic opposition in December 1941 to going to war with Germany and in fighting a holding action with Japan while the Allies pursued a Europe-first strategy. In any event, war came to America. On 1 January 1942, FDR and Churchill (who arrived in Washington in late December) were joined by the Soviet and Chinese ambassadors in Washington to sign the Declaration by the United Nations. FDR apparently thought up the name personally. The declaration pledged its signers to accept the principles of the Atlantic Charter. The next day, the twenty-two other nations at war with the Axis powers joined the declaration. Postwar planning for the new world order took on a new seriousness.

 

That planning proceeded through many twists and turns, culminating in the creation of the United Nations as the war was ending. Harry Truman’s first decision as president, taken the same day that FDR died, was to declare that the San Francisco conference to draft the UN Charter would not be postponed owing to FDR’s death. Leading Republican figures in Congress strongly endorsed this decision.

 

Some 300 delegates from 46 nations convened in San Francisco on 25 April 1945. Although the world entered the Charter era and the nuclear age simultaneously, the men and women who drafted the Charter were uninstructed in the coming revolution in nuclear affairs. The ensuing timeline is instructive. On 8 May, victory was proclaimed in Europe. The UN Charter was unanimously adopted at San Francisco on 25 June. The first atomic test was conducted secretly in the deserts of New Mexico on 16 July, one day before the start of the Potsdam conference. On 26 July, an ultimatum was issued at Potsdam in the names of the leaders of the United States, Great Britain, and China, calling on Japan to surrender or face destruction. Two days later, the U.S. Senate ratified the United Nations Charter. And on 6 August, the world learned about the atomic bomb with the destruction of Hiroshima. The Charter thus was crafted as John Foster Dulles—an American delegate at San Francisco—would later observe, without knowledge of the impending nuclear age. Dulles and others later surmised that had they known of the nuclear bomb, the security arrangements in the Charter might have been seen in a very different light.

 

Over the past six decades, UN Charter institutions arguably have proved ineffective on many (if not most) occasions in enforcing peace through collective security. This has led scholars to ask, long before the current debate, "whether Article 2(4) is still good international law." Anthony Clark Arend, one of the leading American scholars of this question, believes that given the long record of violations by a number of major powers, "it seems difficult to conclude that the charter framework is truly controlling of state practice, and if it is not controlling, it cannot be considered to reflect existing international law." Michael J. Glennon, professor of international law at the Fletcher School, Tufts University, agrees:

Since 1945, so many states have used armed force on so many occasions, in flagrant violation of the charter, that the regime can only be said to have collapsed….Massive violation of a treaty by numerous states over a prolonged period can be seen as casting that treaty into desuetude—that is, reducing it to a paper rule that is no longer binding. The violations can also be regarded as subsequent custom that creates new law, supplanting old treaty norms and permitting conduct that was once a violation. Finally, contrary state practice can also be considered to have crated a non liquet, to have thrown the law into a state of confusion such that legal rules are no longer clear and no authoritative answer is possible.

The conclusion that the Charter paradigm (Arend’s phrase) for resort to force is ‘dead’ is not as bleak as it may appear at first blush. International law—like most social institutions—is a highly dynamic endeavor. International law is constantly adjusted through treaties and state behavior that rises to the level of ‘customary’ rules. In moving beyond the Charter paradigm, there is no need to conclude that the new legal paradigm could still not accommodate much of the former system nor that it need be divorced from a reinvigorated United Nations, points that will be discussed later.

 

Before getting to that discussion, however, something needs to be said about how the rules are changing. One begins with the observation that self-defense is one of the oldest, most deeply rooted sources of legitimacy for resorting to war and is one of the strongest jus ad bellum arguments that can be used to justify military action. W. Michael Reisman, professor at the Yale Law School and editor in chief of the American Journal of International Law, provides a useful framework for understanding the boundaries of the current debate on what self-defense permits. Reismann proposes a scheme that distinguishes among ‘reactive self-defense’ (clearly consistent with Article 51), ‘anticipatory self-defense’ (perhaps consistent with Article 51), and ‘preemptive self-defense’ (a broader claim with more problems, which may be at the heart of the new Bush Doctrine). The arguments go as follows.

Reactive Self-Defense in international law.

The clearest case for legitimate self-defense is after the fact, i.e., using force to defend one’s nation after it has been attacked—something that Reismann calls ‘reactive’ self-defense. All authorities agree that this sort of self-defense is permitted by Article 51 of the UN Charter that states in part: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member, until the Security Council has taken measures necessary to maintain international peace and security." One can conceive, of course, of ways of abusing this right, e.g., provoking an attack in order to claim the right of self-defense in support of one’s military actions, but presumably the normal mechanisms of fact-finding that work in world as well as domestic politics address that concern. Nobody disputes this right of reactive self-defense. A concept of reactive self-defense was part of the rationale for invading Afghanistan after the Taliban regime refused to deny sanctuary and assistance to Osama bin Laden and his terrorists. Reactive self-defense was also the logic behind the Bush administration’s attempts (which most view as unsuccessful) to convince the Security Council that Saddam Hussein’s regime had links to, and was supporting, the al-Qaeda terrorist network.

 

Reactive self-defense was part of pre-Charter and Charter law, and certainly will be part of the post-Charter (or neo-Charter) law.

 

Anticipatory Self-Defense in international law.

 

Pre-Charter customary international law recognized that states could resort to force to defend themselves not only after the fact of being attacked, but also in anticipation of an imminent threat when no other means could reasonably counter the threat. The classic case that asserted the principles behind the right of ‘anticipatory’ self-defense arose out of the 1837 incident where British forces conducted preemptive military operations against the American ship Caroline in American waters because the Caroline was being used to supply Canadian rebels. This case—essentially the diplomatic correspondence between the United States and Britain—established principles that were widely accepted in international law for legitimate anticipatory self-defense. The principles are necessity and proportionality—that an attack is imminent, that there are essentially no other reasonable means available to prevent the attack, and that the forceful action is proportionate to the threat.

 

There are differing views among legal scholars whether anticipatory self-defense was retained in UN Charter law. A narrow or ‘restrictionist’ reading (Arend’s phrase)

of Article 51 concludes that the Charter has eliminated legal recourse to this form of self-defense. But as Arend notes, legal scholars are divided on this issue. A ‘counter-restrictionist’ reading of Article 51 reaches the opposite conclusion, contending that something like the right of anticipatory self-defense on principles like those in the Caroline case, remains part of Charter law. As Arend points out, no international adjudicatory body has issued an authoritative decision to clarify this dispute, which leads one to look to state practice to try to ascertain its status in international law. Arend, through his detailed study of the various debates in the United Nations where this has been addressed, concludes that the right of anticipatory self-defense indeed has been recognized by most states, although they have not agreed on the facts of those instances where it has been debated, e.g., Israel’s preemptive military actions in the 1967 War and the Israeli preemptive strike on the Osarik nuclear reactor in Iraq in 1981. Perhaps most interesting for the current discussion, Arend points out that the first instance when the United Nations considered anticipatory self-defense was during the early debate in the UN Atomic Energy Commission, established in 1946 to seek a mechanism for international control of atomic energy. The first report of the UN Atomic Energy Commission concluded, inter alia, that "[i]n consideration of the problem of violation of the terms of treaty or convention [governing acquisition or use of nuclear weapons], it should also be borne in mind that a violation might be so grave as to give rise to the inherent right of self-defence recognized in Art. 51".

 

Anticipatory self-defense, as Reisman and others have noted, did not fit easily into the Charter framework since it "was, and is, open to abuse by self-serving interpretations in ways that the older right of reactive self-defense was not." Many believe that the Bush administration tried to make its case on Iraq in part on the basis of the anticipatory self-defense argument, but failed to demonstrated either that the threat was imminent (e.g., that Saddam Hussein had or was very close to having nuclear weapons), or that use of force was necessary (e.g., that the inspectors should not be given more time).

 

Anticipatory self-defense was part of pre-Charter law. Arguably, a unilateral right to anticipatory self-defense remained in Charter law, and almost certainly will be present in post-Charter (or neo-Charter) law.

 

Preemptive self-defense in international law.

 

‘Preemptive’ self-defense, argues Reisman, "is broader than anticipatory self-defense."

Although different definitions have been proffered, preemptive self-defense is essentially a "nip in the bud" strategy. It is a claim to use unilaterally, and without prior international authorization, high levels of violence to arrest an incipient development that is not yet operational, hence not yet directly threatening, but that, if permitted to mature, could then be neutralized only a a higher and possibly unacceptable threat. A credible claim for anticipatory self-defense must point to a palpable and imminent threat. A claim for preemptive self-defense can point only to a possibility, a contingency. As one moves from an actual armed attack as the requisite threshold of reactive self-defense, to the palpable and imminent threat of attack, which is the threshold of preventive self-defense, and from there to the conjectural and contingent threat of possible attack, which is the threshold of preemptive self-defense, the need for interpretive latitude of the would-be unilateralist and his burden of proof become even greater. In an international system marked by radically different values and factual perceptions, an act of preemptive self-defense will only look like a serious or hysterical misjudgment to some actors and like naked aggression to others.

The American policy of regime change in Iraq has been part of American law and policy since the Iraq Liberation Act of 1998 (PL 105-338) was adopted with the strong support of the Clinton administration. In the current debate, regime change came to be viewed almost as a corollary of preemptive self-defense. Philip Bobbitt, law professor at the University of Texas, author of the highly-acclaimed The Shield of Achilles: War, Peace and the Course of History, shortly before the invasion of Iraq stated in stark terms an argument that others had been making on why it was too dangerous to let Iraq’s defiance of the Security Council continue to slide. "I recognize," Bobbit wrote, "that we are running a terrible risk if we put Saddam Hussein’s back against the wall. But unless we are willing to eventually grant him a free hand in the Persian Gulf, he is bound to act in a way that will put his back against the wall in the future—after he does acquire nuclear weapons." At that point, so the argument goes, the United States and the world would face a much more dangerous decision, if one accepts that Saddam Hussein’s long-term agenda was to acquire nuclear weapons and dominate his region.

Whatever one thinks about the legal and prudential arguments surrounding Operation Iraqi Freedom, the geopolitical implications are clear in a region that is so strategically important to world order in so many ways: the locale of one of the world’s most intractable problems (the Arab-Israeli confrontation), a breeding place for some of the most virulent forms of global terrorism, the repository of some 63% of the proven reserves of world oil, the center of the ‘arc of crisis’ that might launch what Samuel Huntington termed a ‘clash of civilizations’.

 

Of all the forms of self-defense, preemptive self-defense (as defined by Reisman) is the most threatening to world order. If the world adopts the legal standard that states can unilaterally determine which long-term threats to their security they wish to deal with by preventive military actions, then it is not difficult to envision how this might play itself out in places like the long-standing conflict between India and Pakistan over Kashmir. This appears to be a concern shared by many of the officials in the Bush administration who, as cited earlier in the paper, attempted to explain that the doctrine of preemption was a narrow doctrine to be applied in only a very few selective cases. They have not laid down criteria to narrow the doctrine, however, which worries many in the world as they contemplate the next steps of the Bush administration. Does the short-term military success in Iraq portend future American military actions against Syria, Iran, North Korea, Libya, others? We will return to this discussion later in the paper.

 

A new legal paradigm for self-defense?

From its birth, the United States took a strong hand in shaping international law, recognizing that one had duties as well as rights under international law and concluding as did John Jay in Federalist No. 3 that "it is of high importance to the peace of America that she observe the laws of nations..." The American Declaration of Independence begins by acknowledging the importance of "a decent Respect to the Opinions of Mankind." Also from its birth, the United States has been willing to enter into treaties. Today, the United States remains party to some 10,000 treaties, notwithstanding the publicity when America rejects or withdraws from a treaty (not all treaties are good treaties, just as not all laws are good laws).

 

The late Eugene V. Rostow, a respected international lawyer, former dean of Yale Law School, a senior official in several administrations, and—toward the end of his career—a visiting professor at the National War College (the author had the privilege of studying under him), culminated his career with a book on the history of American foreign and security policies. He thought the most important conclusion to reach from studying that history is the following:

"[T]he supreme security interest of the United States—the interest most worth fighting for—is an organized and effectively enforced system of international peace: not a world order of Utopian perfection, but one in which the phenomenon of war is kept within tolerable limits by the cooperation of the states which constitute the world community, and especially of the major powers, or at least a decisive number of them.

A corollary to principle, Rostow argued, was the challenge to American to take a strong leadership role in asserting and nurturing respect for the appropriate international law. "The abiding question of policy," Rostow argued, "is not whether international society is governed by international law—by definition, it is and must be—but whether that law is or can be made just law and generally fulfilled."

 

Just law—law that is accepted as legitimate not because the strongest arbitrarily declare it to be just but because nations and peoples genuinely view it as such—is the challenge today, if the Bush doctrine is to be transfigured into a new legal paradigm. It is not surprising given this background that a number of American scholars already have begun exploring how international law might evolve to provide a new legal paradigm for resort to force that can gain wide support. Nobody appears eager to return to a pre-Charter world where wars of aggression had an ambiguous status.

Arendt, for instance, suggests the following:

 

 

"This may be a daunting task," Arendt admits, and the United States might prefer that the law be left ‘in a fog’ as Glennon has said. Nevertheless, if the legal regime for the recourse of force is to return to something more closely resembling a stable order, the United States—as the superpower in the international system—needs to take the lead both in acknowledging the deficiency in the current legal structure and in pointing the way to its improvement."

 

Joseph S. Nye, Jr., reaches a similar conclusion. "The test of ‘imminence’," he argues, must be broadened. But the price of moving from preemption to prevention should be some form of collective legitimization, preferably under Chapter 7 of the U.N Charter…Multilateral preventive war may be justified when unilateral preventive war is not."

 

Anne-Marie Slaughter also calls for American leadership in reshaping Charter law along the following lines:

Suppose the Security Council were to adopt a resolution recognizing that the following set of conditions would constitute a threat to the peace sufficient to justify the use of force: 1) possession of weapons of mass destruction or clear and convincing evidence of attempts to gain such weapons; 2) grave and systematic human rights abuses sufficient to demonstrate the absence of any internal constraints on government behavior; and 3) evidence of aggressive intent with regard to other nations. This cluster sets a very high threshold for the use of force, but it also acknowledges that in a world in which a terrorist possessing a weapon of mass destruction could kill hundreds of thousands or even millions of people, a government’s business may more readily become the Security Council’s business.

Later in the paper, I will return to the question of why the United States should try to reconstitute the United Nations and key elements of Charter law, rather than letting the United Nations wither into irrelevance and conducting American foreign policy on the basis of ad hoc and shifting ‘coalitions of the willing’. To complete the analysis of preemption, however, it first is necessary to consider another framework—that provided by just war theory—and another question, the relationship of the Bush doctrine of preemption to the possible first use of nuclear weapons.

 

Preemptive military action and modern just war theory.

If the Security Council gave America its authority to attack Iraq, the war would become legal but for many people it would still be illegitimate.

 

The Economist, February 22, 2003.

 

 

Americans feel triumphant over the liberation of Iraq. But the reality of war does nothing to increase its legitimacy as a tool of foreign policy in the eyes of most Europeans. Even if one shares the war aims of the US and rejoices over the speedy victory of the coalition, it is war itself with its naked, absolute brutality that is an obscene anachronism.

Dominique Moisi, Financial Times, April 14, 2003.

In his George Macaulay Trevelyan Lectures in the University of Cambridge in 1977, later published as an essay entitled "War and the Liberal Conscience," Michael Howard begins with a discussion of the contrasting views toward war of two close friends in the early 16th century, Erasmus of Rotterdam and Thomas More of England.

 

Erasmus, disgusted by the brutal wars of his day and especially provoked (Howard surmises) by the death of Erasmus’s much admired pupil, Alexander, son of King James IV of Scotland, who was killed with his father at the Battle of Flodden, unleashes an emotional, highly personal attack on the concept of legitimate war. In the course of this attack, Erasmus develops arguments that become the standards of liberal pacifism. There is no such thing for Erasmus as a just war, however worthy the cause. Erasmus is the first, Howard writes, "in that long line of humanitarian thinkers for whom it was enough to chronicle the horrors of war in order to condemn it; men who may command one’s instinctive agreement, but provide little constructive advice as to how to deal with the phenomenon which they find so abhorrent to nature and reason."

 

Thomas More, chancellor of England under Henry VIII, a martyr who refuses to renounce his obedience in religious matters to Rome, "no less humane, not to say Christian, than Erasmus," canonized by the Roman Catholic Church as the patron saint of statesmen—Sir Thomas More also was a man who understood the immense tragedy of war. One hears echoed in his life the phrase that one of America’s greatest wartime presidents, Franklin Delano Roosevelt, later would utter, "I have seen war. I hate war." But hating war is not enough for the statesmen, neither for More nor for FDR, because—as Edmund Burke reminds us—all that it takes for evil to triumph is for good men to do nothing. The challenge to the statesman is to fight wars only for just causes and, if war is unavoidable, to pursue it in a manner so as to cause as little unnecessary death and destruction as possible and to strive to make the post-war world even better.

As this paper is being written, tragic pictures flood the media—flag-draped coffins bringing the bodies of young American and British soldiers home to their grieving families, a sobbing Iraqi woman tenderly cradling the head of her dead husband, a young Iraqi boy lying in bed with the stumps of both of his missing arms heavily bandaged, priceless antiquities shattered beyond repair in one of Baghdad’s premier museums. The reactions of the descendents of men and women like Erasmus and Thomas More to such images represent respectable, indeed admirable, moral points of view—that of the confirmed pacifist and that of the adherent of just war. Both these perspectives are rooted deeply in Western religious and secular values, and arguably are present in other cultures as well.

 

For a pacifist, no use of military force—preemptive or otherwise—rises to the level of legitimacy. There is no point in carrying the analysis of preemption further in this tradition.

 

For the just war theorist, the situation is more complicated. Some wars and some actions in war are just; others are not. How does preemption fit into that scheme?

 

Just war theory, dating back at least to the time of Augustine of Hippo, has two traditions, one dealing with the legitimacy of going to war and, once war commences, the other dealing with the legitimacy of actions in war. The first is the ius ad bellum tradition; the second is the ius in bello tradition. Just war arguments have provided generations of statesmen, soldiers, sailors, airmen, and common citizens a moral touchstone for dealing with the tragedies of their times and for coming to grips with their personal responsibilities toward war and its inevitable horrors. It also provides a framework for public debate in democracies and, although the Western just war tradition is closely associated with its growth in the Christian faith, there is nothing inherently religious about the arguments. They are arguments that address secular as well as religious concerns.

 

What does the just war framework tell us about the legitimacy of preemption? The public debate since 2002 on Iraq sheds some light on this question.

Ius ad bellum.

The traditional just war criteria for assessing the moral legitimacy of going to war include such things as competent authority, just cause, last resort, right intention, proportionality between ends and means, and serous prospects of success. The Iraqi case posed an especially difficult challenge in its facts and implications. There was little disagreement that Saddam Hussein was a truly brutal dictator but that in itself traditionally has not been taken as sufficient cause for intervening militarily, absent clear evidence of imminent and massive humanitarian concerns such as a real threat of genocide. There also was little disagreement that Saddam Hussein was in violation of his obligations to destroy his weapons of mass destruction, but, again, different parties disagreed whether this should be pursued through a continuing process of inspections or through immediate regime change.

As for competent authority, the issue turned for many on the broader question discussed in this paper, that is to say, whether the war was sanctioned by the United Nations or not. Some commentators deny that this has anything to do with the justness of a war. Others see it as a major prudential requirement in today’s world.

 

There was considerable disagreement among thoughtful commentators on the issues of proportionality of means and ends. Would the war torch the oil fields, unleash weapons of mass destruction in the region, inflame the Israeli-Palestinian conflict, result in unacceptable numbers of civilian casualties, catalyze new and more virulent acts of terror and so humiliate and outrage the Arab and Muslim world as to breed new generations of terrorists, perhaps even cause the clash of civilizations that so many fear? For some, this was a major factor in denying that the war was justified at this time.

 

As for right intention, few accused Prime Minister Tony Blair (who had so much to lose politically for the principled stand he was taking) of having ulterior motives, but many distrusted American intentions. Although the arguments that the war was about nothing but controlling Iraqi oil or that it was merely revenge by the 43rd president of the United States against a regime that had tried to assassinate his father were confined to fringe elements, more troubling questions of intention remained. Was the legal claim that the United States unilaterally intended to interpret and enforce Security Council resolutions merely a veil for the more fundamental policy of regime change and for the ambitious imperial agenda of bringing democracy and freedom to the Arab world? The inconsistent statements coming out of the senior reaches of the Bush administration fueled these fears.

 

For those who are familiar with the just war tradition and who follow the arguments, the debate prior to March 2003 was indeed extraordinary, ranging from positions taken by the Vatican and by a number of Catholic Bishops’ Conferences worldwide, by Protestant churches, by leading Christian theologians, and by the most respected secular just war theorists. There is no consensus in the debate, nor is it over.

 

What do the ius ad bellum principles—principles helping establish the moral legitimacy of going to war—tell us about the future of preemptive or preventive wars and how they are to be viewed? Perhaps the minimum one can say is that there is a strong hesitation on the part of many to embrace a principle of morally endorsing war fought to prevent an uncertain future from unfolding, as opposed to a war to counter clear and imminent threats. This appears to be the position, for instance, of Sir Michael Quinlan who has so eloquently argued that it is a dangerous principle to be let loose in today’s world. Others appear to believe that by narrowing the conditions under which preventive wars might be fought (in line, perhaps, with the discussion in the previous section), preventive war can be reconciled with the ad bellum tradition in just war theory.

 

It is premature to conclude how the debate will play itself out. Although the ad bellum arguments are somewhat silenced now that the major fighting appears to be largely over, the debate will sharply reappear if the Bush doctrine leads to more preventive wars or to near-term military action against states like Syria, Iran, or North Korea. And once this initial military phases of Operation Iraqi Freedom is replaced by a longer, more ambiguous occupation on the way, hopefully, to Iraq reclaiming its sovereignty, much depends on what happens, e.g., whether democracy is established reasonably quickly and smoothly in Iraq, whether Arab humiliation spills over into a new, perhaps worldwide intifada, what happens in the Israel-Palestine conflict, whether a new wave of mega-terrorism is on the horizon, and the like.

 

Ius in bello.

 

The ius in bello tradition in just war theory addresses what actions are legitimate in war. This tradition was developed at a time when it was recognized that both sides may well claim they are fighting for a just cause. That being the case, there is a strong moral case for seeking limits in war.

 

The in bello criteria traditionally are taken to be discrimination, proportionality, and military necessity. A military action should be discriminating in the sense of not directly attacking noncombatants or causing massive destruction, even if unintentional, to civilians and to the nation. It should be proportionate in the sense that the military action is appropriate to the situation (e.g., seeking to avoid excessive force). It must be justified on the grounds of being necessary to achieve legitimate military aims (e.g., gratuitous violence is to be avoided). As with ius ad bellum arguments, it is possible to agree on the principles while disagreeing on their application.

 

What does ius in bello suggest about preemption? Once war begins, it is strange to talk of military actions as ‘preemptive’. War is a swirling fog of defensive, offensive, and counter-offensive actions, all of which are judged by the same ius in bello criteria to determine whether or not they are legitimate. There is, however, one special category of actions that received new emphasis. That is the issue of whether the Bush doctrine implies that the United States intends to use nuclear weapons preemptively as it prosecutes wars.

 

 

Preemption and the first use of nuclear weapons.

 

On 9 January 2002, the Bush administration publicly unveiled its new nuclear policy with a special briefing at the Pentagon on the results of the Nuclear Posture Review (NPR). The briefing, given by an assistant secretary of defense, provided at best a broad outline of the NPR. All that has been officially released on the NPR consists of the transcript and vugraphs of that briefing, a short forwarding letter from the Secretary of Defense to the Congress (the NPR was a Congressionally-mandated study), and shorter comments by administration officials given primarily in the course of unclassified testimony to congressional committees. The large NPR report itself remains classified.

 

Over the weekend of 9-10 March, 2002, the Los Angeles Times and the New York Times published articles based on purported leaks from the classified NPR report. John E. Pike, formerly of the Federation of American Scientists, now director of GlobalSecurity.org, posted on the worldwide web what claimed to be extensive excerpts from the classified report. A Pentagon press release, in accordance with longstanding policy, said on 9 March 2002 that Pentagon officials would not discuss the classified details of military planning or contingencies or comment on selective leaks. As a result, public perceptions of the NPR have been developed largely in response to the leaks, not in response to what has been said officially.

 

This is reflected in a number of reports like "The Nuclear Posture Review: What Role for Nuclear Weapons?"—an analysis produced by the highly respected, London-based International Institute for Strategic Studies (IISS). "The leaked extracts," the IISS reported:

Included new and disturbing developments in US nuclear policy, such as a new targeting policy that would allow for the use of nuclear weapons against non-nuclear weapon states, and consideration of the preemptive use of nuclear weapons to counter the launch of chemical or biological weapons against the US. In addition, reports suggested that the Bush Administration was preparing to develop a new generation of nuclear weapons to fulfill a wider variety of purposes, resume nuclear testing, and deepen the integration of nuclear and non-nuclear weaponry in US force planning as one part of what the NPR refers to as a ‘New Triad’.

An excellent monograph on the NPR authored by Kurt Guthe—an analyst close to officials responsible for the NPR—is less well known, but worth reading since it places the NPR in context.

 

As discussed earlier, it generally is strange to consider ‘preemption’ as a relevant concept once a war has begun. The first use of nuclear weapons is an exception to this rule. During the Cold War, first use of nuclear weapons tended to be associated with the idea of a first-strike by one of the superpowers against the other, or with the idea of NATO—having been attacked conventionally by the Soviet Union and its allies—responding with tactical nuclear weapons in a seamless chain that could escalate to strategic nuclear strikes. In either scenario, one encounters the prospect of a nuclear exchange of apocalyptic, perhaps civilization-threatening proportions. Nuclear weapons were seen, at least in the West, as critical to deterring major war with the Soviet Union, and their first use was preserved as necessary for the deterrent strategy to succeed. That strategy dated back to the earliest days of NATO.

Although from the early 1950s onward there were occasional policy excursions to examine whether to revisit first use, it remained a part of American and NATO strategy—and remains so today. When the Nuclear Non-Proliferation (NPT) Treaty was being negotiated in the 1960s, the questions of negative and positive security assurances arose, in a context related to but conceptually distinct from the bipolar East-West confrontation. A negative security assurance was seen as a promise by a nuclear power not to use (or threaten to use) nuclear weapons against a non-nuclear power party to the agreement (and thus renouncing the right to nuclear weapons). From the 1970s onward, one of the esoteric aspects of multilateral arms control was the periodic revisiting of the issue of whether negative security assurances should be codified in a treaty and elevated to legal status. Some indeed were, as protocols to nuclear-weapon-free-zone treaties. But for the most part, at least until 1995, negative security assurances (no first use pledges) generally were accepted as politically binding instruments without legal standing. Whether they were given legal standing in 1995, in UN Security Council Resolution 984, remains a dispute among international lawyers.

 

Nuclear weapons have an ambiguous place in international law, all the more so after the July 1996 advisory opinions by the International Court of Justice (ICJ) on the legality of nuclear weapons. "There is in neither customary nor conventional international law," the ICJ unanimously concluded, a "specific authorization of the threat or use of nuclear weapons [ruling A]," nor "any comprehensive and universal prohibition of the threat or use of nuclear weapons as such [ruling B]." Threat or use of nuclear weapons are unlawful if "contrary to Article 2, paragraph 4, of the United Nations Charter" and if they fail "to meet all the requirements of Article 51" [ruling C]. Threat or use of nuclear weapons "should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law [ruling D]." The justices divided 7-7 over the question of whether the inherent destructiveness of nuclear weapons made it impossible to satisfy those principles and rules, concluding:

[I]n view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake [ruling E].

The legal interpretation of American officials was reflected at that time in American military doctrine that specified that "neither the law of armed conflict nor any other customary or conventional international law prohibits the use of nuclear weapons in armed conflict. However, to comply with the law, a particular use of any weapon must satisfy the long-standing targeting rules of military necessity, proportionality, and avoidance of collateral damage and unnecessary suffering."

 

If the legal status of crossing the nuclear threshold and being the first to use nuclear weapons is uncertain, so is their status in the just war in bello tradition. For the U.S. Catholic Bishops, the issue is clear. First use of nuclear weapons violates the just war principles of discrimination, proportionality, and necessity, under any and all circumstances. This is a prudential judgment, however, and is not shared by all scholars or officials working in the just war tradition, even in its Roman Catholic form.

 

The issue of first use discussed thus far derives largely from the way it was understood during the Cold War when any use of nuclear weapons raised the fear of escalation to the apocalyptic level of arsenal exchanges. This intellectual framework has shifted in the post-Cold War era, as threat assessments concentrate on the proliferation of weapons of mass destruction to ‘rogue’ nations, a phrase coined by American policy to describe governments that generally are not subject to democratic checks and balances, that join and then violate nonproliferation treaties, that sponsor terrorism, that may traffic in WMD, and that are hostile to American interests.

 

The focus on rogues is not new to the current American administration. Indeed, as the First Gulf War ended in 1991 and post-conflict inspections revealed how far Saddam Hussein had gone toward acquiring robust chemical and biological weapons capabilities—and how close he was to building a nuclear bomb—analytic efforts increasingly concentrated on the proliferation of these weapons to countries like Iraq, Iran, Syria, Libya, and North Korea, and to the threats raised by such proliferation. In late 1993, the Clinton administration adopted the counter-proliferation initiative to supplement traditional American nonproliferation policy. In 1993 and 1994, in the first North Korean nuclear crisis, calls by hard-line critics for military strikes against North Korea’s nuclear facilities led the Clinton administration to clarify that, while diplomacy was being pursued as the preferred course in Korea and that while counter-proliferation did not equate to preemption, the United States reserved the policy "that military pre-emption might be undertaken if alternative non-proliferation instruments failed and if intelligence indicated an imminent threat against US or allied troops in the field."

 

In response to questions in 1996 on the new WMD threats, then American Defense Secretary William Perry said quite bluntly: "if some nation were to attack the United States with chemical weapons, then they would have to fear the consequences of a response from any weapon in our inventory…We could make a devastating response without the use of nuclear weapons, but we would not forswear the possibility."

 

In light of this background, and with the added reinforcement of the central position accorded to preemption in the White House National Security Strategy in 2002, it is not surprising that in the debate leading up to Operation Iraqi Freedom, there was considerable speculation in the media on the possible preemptive use of American nuclear weapons in Iraq. American officials responded to these questions by pointing out that the United States had a number of options, but did not explicitly take the possible first use of American nuclear weapons off the table. Also in the lead-up to the Iraq war, American officials suggested on a number of occasions that if Iraqi soldiers complied with an order to use chemical or biological weapons, first use of these weapons would be considered a war crime and they would be prosecuted accordingly. The potential complications of this position for the first use of nuclear weapons was not explored.

Where does this leave us? Unlike the atmosphere of the Cold War where, after the 1950s, any use of nuclear weapons threatened escalation on an apocalyptic scale, policymakers now are faced with scenarios where nuclear weapons might be used in a limited fashion against enemy WMD facilities, perhaps to try to control escalation to further enemy use of WMD in a regional war. Can first use of nuclear weapons be defended in such circumstances as being proportionate, discriminating, and necessary?

 

The issue of proportionality would turn on calculations of whether there are other means to reliably destroy the WMD facilities and, if not, what the risks are of not destroying them. It may well be disproportionate to respond with nuclear weapons to a limited use of chemical or even biological weapons against troops in the field, so long as the enemy’s assessed follow-on uses of such weapons remains limited. However, if an enemy uses chemical or biological weapons initially in a limited fashion, then credibly threatens massive strikes that could cause tens or even hundreds of thousands of civilian casualties unless his terms are met, the proportionality calculus for nuclear first use becomes less problematic—albeit still with no automatic or simple answers. In January 1992, when this issue was in its early stages of study for the post-Cold War threat environment, a colleague and I stated it as follows in testimony to the Senate Armed Services Committee:

The United States must face the reality that what the American people have seen in Iraq in the past months is not an isolated or unique case. The future of U.S. security is one involving other Saddam Husseins—aggressors who will have nuclear, chemical, or biological weapons, and advanced delivery systems. How does one prepare for that eventuality?...We are not prepared, as some are, to categorically reject any role for American nuclear weapons in dealing with security in the Third World. It is not difficult to entertain nightmarish visions in which a future Saddam Hussein threatens American forces abroad, U.S. allies or friends, and perhaps even the United States itself with nuclear, biological, or chemical weapons. If that were to happen, U.S. nuclear weapons may well be a resource for seeking to deter execution of the threat.

We were not suggesting then, nor am I aware of any American official who has suggested since, that American first use of nuclear weapons would be automatic in the face of a chemical or biological attack, and perhaps not even in the face of a nuclear attack. One would have to evaluate each situation case-by-case, in light of the circumstances, applying among other things the proportionality criterion. The plausible scenarios I had in mind were ones where an enemy has unleashed biological weapons on civilian targets in the vicinity of the conflict, causing thousands if not tens or hundreds of thousands of casualties, and threatened to continue such warfare unless his conditions were met. If an American leader thought, based on a full assessment at the time, that the only way to deter such escalation, short of surrendering, required credible nuclear threats and possibly nuclear use, I did not see where the logic of the argument made such nuclear threats any less legal or moral than they were during the Cold War. Difficult, yes. Tragic, yes. Immoral or illegal, not necessarily.

 

What about discrimination? Again, the question depends on the targets that are to be attacked and on calculations of collateral damage—blast, shock, and fire in the nuclear explosion’s immediate vicinity, and radioactive fallout beyond. Political leaders in Western democracies are extraordinarily sensitive to discrimination considerations. This was evident in the briefings given at the Pentagon prior to the start of Operation Iraqi Freedom, and in the course of the war.

 

As for necessity, this may be one of the most difficult prudential problems facing an official contemplating first use of nuclear weapons. I already have mentioned the determination of whether there are other options available to deal with the threat. The United States has invested an enormous effort in developing a range of precision-strike and other non-nuclear options for its civilian and military leaders. I am aware of no American official who has not appreciated the fact that if the United States decides to initiate first use, it is crossing a major policy divide with first-order implications not only for the instance itself but in the precedents it sets for the future. Indeed, this was recognized in official American military doctrine:

The United States and its allies have articulated their abhorrence of unrestricted warfare, codifying "laws of war" and turning to definitions of "just war." The tremendous destructive capability of WMD and the consequences of their use have given rise to a number of arms control agreements…restricting deployment and use, and in the case of the 1987 Intermediate-range Nuclear Forces Treaty, even prohibiting the development of an entire class of weapons. At the same time, it is important to recognize that there is no customary or conventional international law to prohibit nations from employing nuclear weapons in armed conflict. Therefore, the use of nuclear weapons against enemy combatants and other military objectives is lawful. The nation that initiates the use of nuclear weapons, however, may find itself the target of world condemnation.

Given the stakes involved, the intelligence that a president would demand before authorizing a nuclear first strike would have to be extraordinarily credible. Getting such information in wartime always is problematic. One source may be HUMINT—a human agent who reports from the scene. One can envision instances in which even the most credible HUMINT source provides bad information which, if followed, will have catastrophic results. This may have been the case with Colonel Oleg Penkovsky during the Cuban missile crisis. Penkovsky, a member of the Soviet General Staff’s Chief Intelligence Directorate, was a Western spy for some eighteen months preceding the crisis. There are conflicting reports that as he was being arrested during the missile crisis, he sent a prearranged telephonic signal to his Western handlers warning against an imminent Soviet attack, but that the message was ignored. Whether or not this is true is not the issue. The issue is that a spy who has been highly credible in the past may be wrong, and if his information is the primary evidence on which a nuclear decision is being based, the risk of taking the decision will be magnified.

 

Another likely source may be SIGINT—signals intelligence that reveals a foreign leader has given the order to use WMD. One of the problems with this type of intelligence is timing. Up to the last moment, the leader may change his mind and countermand his orders—again, something well within historical experience (Hitler was notorious for issuing and then withdrawing orders). Or the information may be deceptive—a deliberate attempt by the enemy to lead the United States to be the first to use nuclear weapons, hoping for a storm of international outrage that will hamper America’s subsequent pursuit of the war.

 

What we can conclude from this analysis is that first use of nuclear weapons, while still retained in American policy as an option, is neither an easy nor an automatic option—no more than it was before. Preemptive use of nuclear weapons does not appear to be what the National Security Strategy had in mind when it elevated preemption to a central role. While this administration, as its predecessors, does not rule out the first use of nuclear weapons in extreme circumstances, there is no reason to conclude that such first use will be casual or easily arrived at, nor that the principles used to assess the legitimacy of such use will depart from those of the past.

 

American power and the future of world order.

What’s under threat is the concept of world order as written in the charter, which was, incidentally, largely drafted by the US….At present the US seems to want to change the rules.

Sir Brian Urquhart, The Financial Times, March 14, 2003.

 

 

Only chaos in the world and eventual distress and worse for us would result from abandonment of the principle of collective security.

Dwight David Eisenhower writing to John Foster Dulles, June 20, 1952.

 

 

‘It is better to be feared than loved,’ Machiavelli wrote. But he was wrong….America remains the universal nation, the country people across the world believe should speak for universal values. Its image may not be as benign as Americans think, but it is, in the end, better than the alternatives. That is what has made America’s awesome power tolerable to the world for so long. The belief that American is different is its ultimate source of strength. If we mobilize all our awesome powers and lose this one, we will have hegemony—but will it be worth having?

Fareed Zakaria, The New Yorker Magazine, October 14, 2002.

 

 

 

What is at stake now that the Rubicon (more accurately, the Euphrates) has been crossed? The central issue at the moment for the future of world order and for its long-term stability is American power—what it is, how the United States intends to exercise it after Iraq, how others will react to it, whether it is seen as legitimate. This issue is closely related to the parallel question of hegemony, and its immediate test in the Middle East.

 

These are big questions and they do not lend themselves to short answers. What one can do, however, is to suggest a framework for assessing how the American people and others view American power, and to further suggest some organizing principles for how to proceed to a stable world order.

American views of American power.

The United States of America has unprecedented power. All agree with that thesis. It also has some 300 million people, less than 5% of the world’s population and, given demographics, likely to be proportionally even smaller over the next several decades. Those are simple facts. How do Americans view their power and its uses in the world?

 

In the ongoing debate, not on how they do view the power but on how they should view it, there are two broad extremes with a number of positions in between. One extreme, ably represented by the Pulitzer Prize winning syndicated columnist for the Washington Post, Charles Krauthammer, is captured by his phrase, "the unipolar moment." Krauthammer’s thesis, which he first advanced late 1990 and which he has recently updated, is that the United States should exercise its power as it sees fit to secure itself in a dangerous world where the greatest contemporary threat (as he sees it)is posed by weapons of mass destruction in the hands of rogue states. Krauthammer describes his position to be that of a realist, one for whom "the ultimate determinant of the most basic elements of international life—security, stability, and peace—is power." He decries faith in treaties (in his words, "pieces of parchment to which existential enemies affix their signature"). While he does not rule out acting in concert with others, he also insists that we not allow others to dictate (constrain?) America’s actions. He embraces the thesis that American hegemony is imperial in nature and paraphrases Benjamin Franklin to the effect that "History has given you an empire, if you will keep it." He rejects the logic that the Security Council confers moral authority (legitimacy?) on American actions, and contrasts his view with what he calls ‘liberal internationalists’ and ‘pragmatic realists’—those who seek Security Council support, albeit for different reasons. He is especially critical of what he calls ‘the multilateralist project’, namely, "to use—indeed, to use up—current American dominance to create a new international system in which new norms of legalism and interdependence rule in America’s place." Finally, his ‘new unilateralism’ contends that American interests, beyond immediate self-defense, entail two other objectives: "extending the peace by advancing democracy and preserving the peace by acting as a balancer of last resort."

 

A contrasting view, represented by scholars such as Joseph S. Nye, Jr., and G. John Ikenberry, associates American leadership and acceptance of American hegemony with the support of others. Michael J. Mazarr, former editor of The Washington Quarterly, currently a professor of national security strategy at the National War College, recently has authored an especially eloquent essay on American leadership in which he provides a nice contrast to the Krauthammer ‘seize the unilateral moment’ position. "The leadership literature," Mazarr points out, "holds, first and foremost, that a leader’s most important job is to rally people towards a clear and specific vision….[T]he best, most lasting visions are shared ones." Beyond achieving buy-in to shared visions, a successful leader generates and sustains trust, empowers followers, and respects their independent opinions. "Leading globally," Mazarr argues, "cannot ever again be the same thing as directing, as hectoring, as demanding." Nor is it wise "for the US to proceed alone, calmly confident that success will excuse all American condescension and weight-throwing." The issue, Mazarr observes, is not "being liked" but "leading, as a real leader would lead." Finally, and relevant to the current discussion, "Pushing a reluctant world towards a confrontation with Saddam Hussein is not, in itself, deadly to long-term US leadership; the broader pattern of behavior may be."

Which of the above visions best reflects values which will be embraced by the American people, not just now or for the remainder of the Bush administration, but over the decades that it will take to win the war on terror, deal with the proliferation of weapons of mass destruction, rebuild Afghanistan and Iraq, pursue an Israeli-Palestinian settlement and an end to the Arab-Israeli war, resolve the Kashmir crisis, reach a stable settlement on the Korean peninsula, address global warming, cope with the thousand and one other problems that constitute the fabric of world politics? That is a fundamental question for contemporary American politicians.

 

Henry Kissinger has long argued that Americans are uncomfortable with power and that their "journey through international politics has been a triumph of faith over experience." There is considerable truth in that observation, but one ought not to dismiss the experience of a people with so many conflicting traditions vying for attention in its foreign policy. "We embrace contradictory principles with equal fervor," observed Eugene V. Rostow, and cling to them with equal tenacity. Should our foreign policy be based on power or morality? Realism or idealism? Pragmatism or principle? Should its goal be the protection of interests or the promotion of values? Whould we be nationalists or internationalists? Liberals or conservatives? We blithely answer, ‘All of the above.’"

 

Walter. A. McDougall identifies eight competing diplomatic traditions over the course of American history. Walter Russell Mead finds four basic ways that Americans have approached foreign policy, concluding that "American foreign policy will continue to emerge from their collisions and debates far into the future." Andrew J. Bacevich argues that when you get beneath the surface in American foreign policy, you find a long-standing American drive toward an American imperium whose "ultimate objective is the creation of an open and integrated international order based on the principles of democratic capitalism, with the United States as the ultimate guarantor of order and enforcer of norms."

One of the ways to approach the question of whether Americans will view the exercise of American power as legitimate over time is to seek historical analogues. One that seems aptly parallel to today is the early 1820s when an independence movement in Greece had seized world attention in its struggle to throw off centuries of Turkish rule. Many Americans were wildly enthusiastic for America to support the Greek rebellion. One of America’s most experienced diplomats and a former president, John Qunicy Adams, urged caution, warning his countrymen

That by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom….She might become the dictatress of the world: she would be no longer the ruler of her own spirit.

Of course the parallel is not exact. Greek independence was remote to American interests in the 1820s. The Iraqi threat was central in 2003. But with it still unclear whether the aim of the new American National Security Strategy is to use American power to mount a crusade to bring democracy to the Arab and the Islamic world starting with Iraq, then the issues raised by John Quincy Adams are quite relevant. Is this something the United States can achieve while ‘remaining ruler of its own spirit’?

 

The United States has gone abroad and cannot safely retreat. One grand question is, in continuing to exercise American power, whether the results will be seen as justifying the costs, whether Americans will be proud not merely of the effort but of the results. This is important when assessing the future stability of world order, for if Americans lose faith in how American power is deployed and displayed abroad—if they cease to view American power as legitimate—it cannot but weaken the stability of the world order.

 

Foreign views of America’s current power.

 

Turning to the other 6 billion people who live on our planet, Sir Michael Howard strikes a note that is representative of a number of foreign points of view:

[W]e need to know rather more about the new structure of international legitimacy towards which we are striving before we abandon the old. An explicit American hegemony may appear preferable to the messy compromises of the existing order, but if it is nakedly based on commercial interests and military power it will lose all legitimacy. Terror will continue and, worse, widespread sympathy with terror. But American power placed at the service of an international community legitimized by representative institution and the rule of law, accepting its constraints and inadequacies but continually working to improve them: that is a very different matter. It is by doing this that the US has earned admiration, respect, and indeed affection throughout the world over the past half century. But if that relationship is to continue, and respect is to overcome hate, the US must cease to think of itself as a heroic lone protagonist in a cosmic war against ‘evil’, and reconcile itself to a less spectacular and more humdrum role: hat of the leading participant in a flawed but still indispensable system of co-operative global governance.

A common refrain from America’s foreign friends and critics during the Cold War was that America is unpredictable and that inconsistency leads to instability in world order. There is a grain of truth in this observation. America’s conflicting foreign policy traditions, its presidential form of government in which power is shared with congress, and its democratic processes, guarantee that there can—and likely will be—dramatic swings in American policy over time.

 

What we find today, however, appears to be a qualitatively different concern. Brad Roberts, former editor of The Washington Quarterly, currently a respected analyst at the Institute for Defense Analyses, recently published a monograph resulting from an informal dialogue among participants from the five permanent members of the UN Security Council, stretching from 1999 to 2001. "For the Americans in the dialogue process," he writes, "the main message from the others was simply that doubts about American power and purposes on the world stage permeate every aspect of the global security dialogue. In its moment of unprecedented power and dominance, what will America choose to do? What will it do with primacy?"

 

Those questions remain on the table.

Organizing principles for a stable world order.

When Franklin Delano Roosevelt met with Winston Churchill in the Atlantic in August 1941 and the two conspired on a broad set of principles to define a post-war world, they had only the vaguest idea of how to reach their vision. The United States was not yet in the war and, given the neutralist sentiment still strong in American domestic politics, it was unclear when or even if that would happen. The Axis military powers were on the march and it was by no means certain how and even if the war could be won.

 

FDR was a "disenchanted Wilsonian and a believer in realpolitik." As a sub-cabinet official in the Wilson administration during World War I, FDR had seen the outpouring of enthusiasism that greeted Woodrow Wilson when he went to Europe, holding out a vision to oppressed peoples worldwide of a dramatically different kind of world. As a politician, FDR witnessed the failure of Wilson’s grand scheme and the shifting domestic sentiment in the United States during the dark inter-war years. As president, he understood the difficulty—and the importance—of legitimacy for his war aims, if he was to have any hope of sustained support from the American people. And as a wartime leader, he presided over the development of the atomic bomb and mulled over what kind of security arrangements had a chance, however dim, of succeeding in the postwar world.

 

FDR was no utopian internationalist. He envisioned a world organization that could work only if the major powers in that organization were determined to make it work. And if they were not, he understood that in the final analysis, the Anglo-American tie—a tie built on common values, shared experiences, and global conceptions of responsibility—was available until the broader coalitions could be assembled. He also believed in the rule of law.

 

In many ways, FDR’s experience is instructive as we search for organizing principles today for how to use American power to secure America’s future while simultaneously imbedding that power in a stable world order. In a cogent essay in the summer of 2002, Michael Lind captures the essence of the problem: "In the long run, new kinds of world order that we cannot now imagine may become possible and desirable. But until that happens, the goal of American strategy ought to remain what it has been for generations: a world in which a handful of great powers sharing basic liberal values cooperate to manage conflict and competition in a global society of sovereign states."

 

American power must be used not only to secure America’s immediate future but to stabilize the world order over a much longer term. American leaders for many years to come must make the hard choices between near-term expediency and long-term stability. I would suggest the following organizing principles for this endeavor:

 

 

 

 

These are principles, not a detailed policy plan. That is the duty of successive American Governments, and insuring that the right policies are chosen in the round is the responsibility of every one of us who casts a vote in the United States of America.

 

ENDNOTES

Jean-Jacques Rousseau, The Social Contract, treans. Maurice Cranston (Penguin Books, 1968), p. 52.

See, for instance, the survey report issued by the Pew Research Center for the People & the Press, "America’s Image Further Erodes, Europeans Want Weaker Ties," survey conducted March 10-17 2003, released March 18, 2003. http://people-press.org.

There are a number of survey reports available. See The Chicago Council of Foreign Relations and The German Marshall Fund of the United States, Worldview 2002, September 2002, available at www.worldviews.org; Margaret H. DeFleur and Melvin L. DeFleur, The Next Generation’s Image of Americans: Attitudes and Beliefs Held by Teen-agers in Twelve Countries, preliminary report, Boston University College of Communications, September 2002, available at www.bu.edu; and The Pew Global Attitudes Project, What the World Thinks in 2002, December 2002, available at http://people-press.org.

James Harding, "Gulf war, the sequel: a transformed America puts its new doctrine of pre-emptive aggression into action," Financial Times, March 21, 2003, p. 15.

US Department of State International Information Programs, Washington File, "Powell Says Liberation Will Change Negative Views of Iraq Policy," 26 March 2003. http://usinfo.state.gov.

Sir Isaiah Berlin’s speech was published in fuller form, from which this quotation is taken, and can be found in Isiah Berlin, The Crooked Timber of Humanity: Chapters in the History of Ideas, ed. By Henry Hardy (New York, 1990), p. 14.

Ibid.

Sir Michael Howard, "Smoke on the horizon," Financial Times, September 7/8 2002, p. I.

Sir Michael Quinlan, "War on Iraq: a blunder and a crime," Financial Times, August 7, 2002, p. 11; and "Iraq: What Next?", The Tablet, 1 February 2003.

R. James Woolsey, "World War IV," speech given during Restoration Weekend, November 16, 2002. http://www.sid-ss-net.

Lawrence Freedman, "Prevention, Not Preemption," The Washington Quarterly 26 (Spring 2003), pp. 105-114.

Joseph S. Nye, "Before War," The Washington Post, March 14, 2003, p. A27. For a fuller discussion of ‘soft power’, see Joseph S. Nye, Jr., The Paradox of American Power: Why the World’s Only Superpower Can’t Go It Alone (Oxford University Press, 2002).

See François Heisbourg, "How the West Could Be Won," Survival (Winter 2002-03), pp. 145-155; "A Work in Progress: The Bush Doctrine and Its Consequences," The Washington Quarterly (Spring 2003), pp. 75-88.

Robert Kagan, Of Paradise and Power: America and Europe in the New World Order (Alfred A. Knopf, 2003).

John Ikenberry, "America’s Imperial Ambitions," Foreign Affairs 81 (September/October 2002), pp. 44-60. Also see G. John Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order After Major Wars (Princeton University Press, 2001).

Anthony Clark Arend, "International Law and the Preemptive Use of Military Force," The Washington Quarterly 26 (Spring 2003), pp. 89-103. Also see Anthony Clark Arend & Robert J. Beck, International Law & the use of Force (Routledge, 1993).

Anne-Marie Slaughter, "The Will to Make It Work," The Washington Post, March 2, 2003, p. B1.

See Richard F. Grimmett, "U.S. Use of Preemptive Military Force: The Historical Record," in U.S. Foreign Policy Agenda 7 (December 2002), pp. 41-43. This is the electronic journal of the U.S. Department of State. http://usinfo.state.gov.

For differing perspectives on the preventive war arguments as Russia acquired its nuclear arsenal, see Marc Trachtenberg, "A ‘Wasting Asset’: American Strategy and the Shifting Nuclear Balance, 1949-1954," initially published in International Security 13 (Winter 1988-89), republished in slightly modified form in Trachtenberg, History and Strategy (Princeton University Press, 1991), pp. 100-152; Robert R. Bowie and Richard H. Immerman, Waging Peace: How Eisenhower Shaped an Enduring Cold War Strategy (Oxford University Press, 1998), pp.164, 174; and George H. Quester, Nuclear Monopoly (Transaction Publishers, 2000). For differing perspectives on the preventive war arguments as China acquired the bomb, see William Burr and Jeffrey T. Richelson, "Whether to ‘Strangle the Baby in the Cradle’," International Security 25 (Winter 2000/01), pp. 54-99, and Lawrence Freedman, Kennedy’s Wars: Berlin, Cuba, Laos and Vietnam (Oxford University Press, 2000), pp. 272-275.

See Robert S. Litwak, "The New Calculus of Pre-emption," Survival 44 (Winter 2002-03), pp. 53-80, and Walter B. Slocombe, "Force, Pre-emption and Legitimacy," Survival 45 (Spring 2003), pp. 117-130.

U.S. Department of State, Washington File, "National Security Strategy Seeks to Defend Peace, Prosperity," 20 September 2002, p. 4. http://usinfo.state.gov.

U.S. Department of State, "Remarks Following Meeting of the Consultative Group on Strategic Issues," Secretary Colin L. Powell, September 20, 2002, p. 2. www.state.gov/secretary.

The White House, Office of the Press Secretary, "Remarks by Dr. Condoleezza Rice, Assistant to the President for National Security Affairs, to the Manhattan Institute’s Wriston Lecture," New York, October 1, 2002.p. 2. www.whitehouse.gov..

William H. Taft, IV, "Old Rules, New Threats," November 18, 2002. www.cfr.org/publications.

John Lewis Gaddis, "A Grand Strategy of Transformation," Foreign Policy (November/December 2002), pp., 50-57.

Quoted in J. Bryan Hehir, SJ, "The New National Security Strategy," America 188 (April 7, 2003), p. 10.

John Norton Moore, "Preemption and International Law," undated, www/virginia.edu/cnsl.

Ibid.

"Legal basis for use of force against Iraq," set out by the Attorney General, Lord Goldsmith, 17 March 2003. www.number-10.gov.uk.

"Report in Connection With Presidential Determination Under Public Law 107-243," U.S. Department of State International Information Programs, Washington File, 19 March 2003. http://usinfo.state/gov.

"U.S. Informs U.N. of Start of Coalition Military Operations in Iraq," U.S. Department of State International Information Programs, Washington File, 21 March 2003. http://usinfo.state.gov.

The New York Times, March 11, 2003. www.nytimes.com.

For a detailed discussion of the circumstances leading up to the United Nations, see Townsend Hoopes and Douglas Brinkley, FDR and the Creation of the U.N. (Yale University Press, 1997).

See Telford Taylor, The Anatomy of the Nuremberg Trials (Alfred A. Knopf, 1992), p. 37.

Winston Churchill, The Grand Alliance, volume three of The Second World War (Houghton Mifflin, 1950), pp. 443-444.

Ibid., p. 444.

Hoopes and Brinkley, FDR and the Creation of the United Nations, pp. 39-45.

John Foster Dulles, "The Challenge of Our Time: Peace with Justice," American Bar Association Journal 38 (1953), p. 1066.

Anthony Clark Arend and Robert J. Beck, International Law and the Use of Force, p. 179.

Anthony Clark Arend, "International Law and the Preemptive Use of Military Force," The Washington Quarterly 26 (Spring 2003), p. 100.

Michael J. Glennon, "Why the Security Council Failed," Foreign Affairs 82 (May/June 2003, pp. 22-23.

W. Michael Reisman, "Editorial Comment: Assessing Claims to Revise the Laws of War," American Journal of International Law 97 (January 2003), pp. 82-90.

Arend and Beck, International Law and the Use of Force, p. 72.

Ibid., p. 74. Arend repeated this, with further elaboration, at a briefing on "Anticipatory Self-Defense and International Law," sponsored by The American Society of International Law, August 1, 2002, at its headquarters in Washington D.C. See, also, Colonel Guy B. Roberts, "The Counterproliferation Self-Help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction," Denver Journal of International Law and Policy 27 (Summer 1999), pp. 483-539, Frederic L. Kirgis, "Pre-emptive Action to Forestall Terrorism," ASIL Insights (June 2002), and Walter B. Slocombe, "Force, Pre-emption and Legitimacy," Survival 45 (Spring 2003), pp. 117-130,

Reisman, "Editorial Comment," p. 84.

Reisman, "Editorial Comment," p. 87.

Philip Bobbitt, "Today’s War is Against Tomorrow’s Iraq," The New York Times, March 10, 2003. www.nytimes.com.

See Kenneth M. Pollack, The Threatening Storm: The Case for Invading Iraq ((Random House, 2002).

See Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (Simon & Schuster, 1996).

Jacob E. Cooke, ed., The Federralist (Wesleyan University Press, 1961), p. 14.

Eugene V. Rostow, Toward Managed Peace: The National Security Interests of the United States, 1759 to Present (Yale University Press, 1993), p. 4. This book was first published by National University Press in 1993 as A Breakfast for Bonaparte: U.S. National Security Interests from the Heights of Abraham to the Nuclear Age.

Ibid., p. 6.

Arendt, "International Law and the Preemptive Use of Military Force," p. 102.

Ibid.

Ibid.

Michael Glennon, "The Fog of War: Self Defense, Inherence and Incoherence in Article 51 of the United Nations Charter," Harvard Journal of Law and Public Policy 25 (2002), pp. 539, 554.

Arendt, "International Law and the Preemptive Use of Military Force," p. 102

Joseph S. Nye, "Before War," The Washington Post, March 14, 2003, p. A27.

Anne-Marie Slaughter, "A Chance to Reshape the U.N.," The Washington Post, April 13, 2003, p. B7.

Michael Howard, War and the Liberal Conscience (Oxford University Press, 1981), p. 16.

Ibid., p. 18.

There are a number of excellent analytic histories of the just war theory. See James Turner Johnson, Just War Tradition and the Restraint of War (Princeton University Press, 1981), William V. O’Brien, The Conduct of Just and Limited War (Praeger, 1981), Michael Walzer, Just and Unjust Wars, 3rd ed. (Basic Books, 2000), and Brono Coppieters and Nick Fotion, eds., Moral Constraints on War: Principles and Cases (Lexington Books, 2002).

Michael Walzer’s analysis is a case in point. For a perspective on how Walzer was thinking about Iraq from a just war point of view, see Michael Walzer, "The Right Way," The New York Review of Books, February 13, 2003, p. 4, and Michael Walzer, "What a Little War in Iraq Could Do," The New York Times, March 7, 2003, www.nytimes.com.

See Charles Krauthammer, "Call the Vote. Walk Away," The Washington Post, March 12, 2003, p. A21 and George F. Will, "U.N. Absurdity," The Washington Post, March 13, 2003, p. A23.

See Statement on Iraq, United States Conference of Catholic Bishops, November 13, 2002. www.usccb.org.

For a small sampling of the just war debate on Iraq, see Pastoral Letter of the President of the United Methodist Council of Bishops, Bishop Sharon A. Brown, Springfield, Illinois, October 4, 2002; Statement on Iraq, U.S. Conference of Catholic Bishops, November 13, 2002; Address of Pope John Paul II to the Vatican Diplomatic Corps, January 13, 2003; Joint Statement of Archbishop of Canterbury, Dr. Rowan Williams, and Archbishop of Westminster, Cardinal Cormac Murphy O’Connor, February 20, 2003; Statement of the Executive Committee, World Council of Churches, February 21, 2003; Statement of Cardinal Pio Laghi, Vatican envoy, following special meeting with President Bush, March 6, 2003; George Weigel, "The Just War Case for the War," America 188 (March 31, 2003), pp. 7-10

Quinlan, "Iraq: What Next?" The Tablet, February 1, 2003.

The transcript of the NPR briefing and vugraphs are available at www.defenselink.mil.

IISS, "The Nuclear Posture Review: What Role for Nuclear Weapons?" Strategic Comments, 8:3 (2002), p. 1.

Kurt Guthe, The Nuclear Posture Review: How is the "New Triad" New? (Washington DC: Center for Strategic and Budgetary Assessments, 2002).

See Michael O. Wheeler, "NATO Nuclear Strategy, 1949-90," in Gustav Schmidt, A History of NATO—The First Fifty Years, Vol. 3 (Palgrave, 2001), pp. 121-139.

See Michael O. Wheeler, Positive and Negative Security Assurances (College Park, Maryland: Center for International and Security Studies, February 1994).

See George Bunn, "Security Assurances Against Nuclear Attack: The Legal Framework for the NPT Extension Conference and Beyond," in Security Assurances: Implications for the NPT and Beyond (Washington, DC: Carnegie Endowment for International Peace, 1995), pp. 9-24.

Laurence Boisson de Chazournes and Philippe Sands, eds., International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press, 1999), p. 559.

U.S. Department of Defense, Joint Publication 3-12.1, Doctrine for Joint Theater Nuclear Operations (February 9, 1996), pp. I-1 to I-2.

This position was formally stated in the 1983 pastoral letter of the American Catholic Bishops on war and peace ("The Challenge of Peace") and remains their official position. See Philip J. Murnion, ed., Catholics and Nuclear War: A Commentary on "The Challenge of Peace" (Crossroad, 1983).

See William V. O’Brien and John Langan, S.J., eds., The Nuclear Dilemma and the Just War Tradition (Lexington Books, 1986), and Michael Quinlan, Thinking About Nuclear Weapons (Royal United Services Institute for Defence Studies, 1997).

The United States is fairly transparent in its official threat perceptions. See Director of Central Intelligence, "Director of Central Intelligence’s Worldwide Threat Briefing," 11 February 2003. www.cia.gov/cia.

Robert L. Litwak, "The New Calculus of Pre-emption," Survival 44 (Winter 2003-03), p. 56. Litwak, currently director of international studies at the Woodrow Wilson Center, formerly director for nonproliferation and export controls on the National Security Council Staff, is not the only former official from the Clinton administration to describe in detail the continuity of today’s situation with that of the 1990s. Also see Walter B. Slocombe, "Force, Pre-emption and Legitimacy," Survival 45 (Spring 2003), pp. 117-130. Slocombe, currently a Washington attorney and defense intellectual, was under secretary of defense for policy from 1994 to 2001.

Quoted in "The Nuclear Posture Review," Strategic Comments, p. 2.

Prepared Joint Statement by Thomas C. Reed and Michael O. Wheeler, "The Role of Nuclear Weapons in the New World Order," reprinted in Threat Assessment, Military Strategy, and Defense Planning, Hearings Before the Committee on Armed Services, United States Senate, One Hundred Second Congress, Second Session (Government Printing Office, 1992), pp. 95-96.

See Ariel E. Levite and Elizabeth Sherwood-Randall, "The Case for Discriminate Force," Survival 44 (Winter 2002-03), pp. 81-98.

Department of Defense, Joint Chiefs of Staff, Joint Publication 3-12, Doctrine for Joint Nuclear Operations (15 December 1995), p. II-1.

See Michael R. Beschloss, The Crisis Years: Kennedy and Khrushchev, 1060-1963 (Edward Burlingame Books, 1991), p. 478fn.

Charles Krauthammer, "The Unipolar Moment Revisited," The National Interest 70 (Winter 2002/03), pp. 5-18.

Michael J. Mazarr, "Acting Like a Leader," Survival 44 (Winter 2002-03), pp. 107-120.

Henry Kissinger, Diplomacy (Simon & Schuster, 1994), p. 18. For an updated version of his critique, see Henry Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Century (Simon & Schuster, 2001).

Eugene V. Rostow, A Breakfast for Bonaparte: U.S. National Security Interests from the Heights of Abraham to the Nuclear Age (National Defense University Press, 1933), p. 22.

They are: 1) Liberty, or Exceptionalism; 2)Unilateralism, or Isolationism, 3) The American System, or Monroe Doctrine; 4) Expansionism, or Manifest Destiny, 5) Progressive Imperalism, 6) Wilsonianism, or Liberal Internationalism, 7) Containment, 8) Global Meliorism. Walter A McDougall, Promised Land, Crusader State: The American Encounter with the World Since 1776 (Boston, 1997).

"Hamiltonians regard a strong alliance between the national government and big business as the key both to domestic stability and to effective action abroad, and they have long focused on the nation’s need to be integrated into the global economy on favorable terms. Wilsonians believe that the United States has both a moral obligation and an important national interest in spreading American democratic and social values throughout the world, creating a peaceful international community that accepts the rule of law. Jefferesonians hold that American foreign policy should be less concerned about spreading democracy abroad than about safeguarding it at home; they have historically been skeptical about Hamiltonian and Wilsonian policies that involve the United States with unsavory allies abroad or that increase the risks of war. Finally, a large populist school I call Jacksonian believes that the most important goal of the U.S. government in both foreign and domestic policy should be the physical security and the economic well-being of the American people. ‘Don’t Tread on Me!’ warned the rattlesnake on the Revolutionary battle flag; Jacksonians believe that the United States should not seek out foreign quarrels, but when other nations start wars with the United States, Jacksonian opinion agrees with Gen. Douglas MacArthur that ‘There is no substitute for victory.’" Walter Russell Mead, Special Providence: American Foreign Policy and How It Changed the World (Alfred A. Knopf, 2001), p. xvii.

Andrew J. Bacevich, American Empire: The Realities and Consequences of U.S. Diplomacy (Harvard University Press, 2002), p. 3.

John Quincy Adams, 4th of July address, 1821, quoted in Walter Russell Mead, Special Providence, p. 185.

Howard, "Smoke on the Horizon," p. I.

Brad Roberts, American Primacy and Major Power Concert: A Critique of the 2002 National Security Strategy (Institute for Defense Analyses, December 2002), p. ES-1.

Townsend Hoopes and Douglas Brinkley, FDR and the Creation of the U.N., p. ix.

Michael Lind, "Toward a Global Society of States," The Wilson Quarterly (Summer 2002), p. 69.