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Op-ed: The Dangers of Preemption *

Mar. 16, 2003, 12:06 PM

This opinion piece appeared in The San Francisco Chronicle (3-16-03)

If the United Nations Security Council ends up authorizing the use of arms against Iraq, then war would carry the sanction of international law. But what if it does not? President Bush says the United States will go to war with Iraq anyway. To justify military action without Security Council approval, the president invoked the doctrine of "pre-emptive" self-defense. In doing so, he dismissed a centuries-old principle of international law and opened the door to a world of unknown dangers and grave moral challenges. In his State of the Union speech, the president criticized those who "have said we must not act until the threat is imminent." By rejecting the requirement of "imminence," Bush dismissed a principle first articulated by Daniel Webster in 1837. After the British justified an attack on U.S. territory as an act of self-defense, Webster delivered a famous rebuttal: Self- defense can justify one nation’s invasion of another only if the "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The Bush administration is not the first to reject Webster’s vision. The doctrine of "anticipatory" self-defense supplied the justification for our 1986 bombing of Libya. This doctrine, however, was also used by the Nazis to defend their aggression in World War II and by the Japanese to justify their attack on Pearl Harbor. Just last month, North Korea announced that with American troops en route to the region, it had a right to launch a pre-emptive attack against us. Our government may have good cause to fear Saddam Hussein. But in seeking to bring down his regime without respecting the strict demands of self-defense, we will unleash on the world a tool that ultimately may prove far more damaging to our safety. The doctrine of anticipatory self-defense is still controversial; our decision to employ it in such a spectacular way will surely embolden less powerful countries. From a politician’s standpoint – and in the short term – the elasticity of anticipatory self-defense is surely a virtue. But the danger of anticipatory self-defense is that it is self-judged. A country, possessed of secret information, simply decides for itself whether circumstances justify the use of force. We may trust the U.S. government to use anticipatory self-defense in a responsible way. But many less scrupulous countries will surely embrace this convenient doctrine and claim that secret information of threats to their security justifies an armed attack. Every bully on the world block will rejoice at this all-purpose legal weapon. Moreover, the administration has provided no limiting principle to this muscular vision of self-defense. Terrorists and dangerous weapons lurk in a host of other countries. As soon as the Iraqi operation is finished, will the United States turn its eyes – and weapons – to them? Daniel Webster’s injunction that a nation may act in self-defense only in cases of "an instant and overwhelming necessity" was only incidentally about timing. More fundamentally, it was about alternatives and the need to avoid war until there was "no choice of means." But as proposals recently vetted in Europe make clear, there remain other ways to increase the pressure on the Iraqi regime to disarm. Time is not yet of the essence. With hundreds of inspectors now on the ground, it is difficult to see how any Iraqi threat can mature into a vital danger to U.S. security. The Nuremberg Judgment invoked Webster’s time-honored formula in rejecting the Nazis’ specious claim of self-defense. Supreme Court Justice Robert H. Jackson, who served as the U.S. prosecutor at Nuremberg, assured the tribunal’s judges that the tribunal did not simply represent "victor’s justice. " "We must never forget," he said, "that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well." The doctrine of pre-emptive self-defense imposes on us the moral obligation to judge our evidence scrupulously and to act only in case of a genuine, vital threat to our security. If we attack Iraq, we will be judged both by the quality of our evidence and by the moral justification for force in the face of a peaceful alternative. Those of us outside the Bush administration’s inner circle have no way to scrutinize the administration’s evidence that Iraq poses a genuine near-term threat to U.S. security. But although the public cannot scrutinize the administration’s evidence, history surely will.

Allison Marston Danner and George Fisher are professors at Vanderbilt University Law School and Stanford Law School, respectively.

* NOTE: The opinion piece above appeared in the San Francisco Chronicle under a headline assigned by the editorial staff U.S. apes Nazi rationale (3-16-03). LETTERS TO THE EDITOR (3-19-03) The San Francisco Chronicle Authors respond Editor — On Sunday, The Chronicle’s Insight section printed an opinion article in which we argued that if the United States goes to war against Iraq without a U.N. mandate, it would be breaking new and dangerous ground in international law. We do not believe the headline The Chronicle assigned our essay, "U.S. apes Nazi rationale," reflected what we intended to be a measured legal argument.