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"But What's the Legal Case for Preemption?"--A Commentary by Prof. Bruce Ackerman

(This essay was originally published in the August 18, 2002, edition of the Washington Post)

But What's The Legal Case For Preemption?
By Bruce Ackerman, Sterling Professor of Law and Political Science

Among other things, the first Gulf War was a triumph for the rule of law. Before the United States fired a single shot, the president had gained the formal approval of both the U.N. Security Council and the U.S. Congress. In waging war against Saddam Hussein, he was not invoking some novel presidential doctrine. He was enforcing the U.N. Charter's explicit prohibition against any state using force to cross another's border. In intervening to reverse Iraq's invasion of Kuwait, he was upholding a central tenet of modern international law.

The first President Bush has often been derided for lack of vision, but these actions created a precedent that gave legal substance to his "new world order." In the aftermath of the Cold War, Bush was establishing the principle that America could deal with threats to world peace without recourse to an imperial presidency. He was inaugurating a new era in which major wars were not to be launched by presidential fiat, but only after the considered approval of representatives of the nation and the world.

The second President Bush has surrounded himself with advisers who condemn this vision as a harmful delusion. It is not enough for them to correct his father's mistake in failing to march on Baghdad; it is no less important to destroy the checks and balances his father constructed on the road to war. In the face of the father's multilateralism, the son is constructing a double unilateralism -- freed from the restraints of the Security Council abroad and Congress at home, the imperial presidency claims the authority to strike preemptively at any danger.

It is one thing to make war with Iraq, quite another to endorse this double unilateralism. Nothing that Congress has done remotely justifies this leap. In responding to the attacks on New York and Washington, Congress authorized the president to use "all necessary and appropriate force" only against "those nations, organizations or persons" who "planned, authorized or aided the terrorist attacks that occurred on Sept. 11."

The Bush administration has not implicated Hussein in these attacks. If a second invasion of Iraq is justified, it is because of Hussein's future threat, not his past involvement in Sept. 11.

If the nation is to launch a second Gulf War, the Constitution explicitly leaves this decision to Congress, not the president. The case for congressional approval is especially compelling when the president seems intent on acting without the authorization of the Security Council.

The president's "realist" advisers may choose to ignore international law, but this is not the view expressed in the Constitution of the United States. It declares that treaties approved by the Senate are the "supreme Law of the Land" and it explicitly requires the president to "take care that the laws be faithfully executed." The U.N. Charter is a solemn treaty overwhelmingly ratified by the Senate in the aftermath of World War II.

Since the charter is a binding treaty, a key question is the meaning of its sole provision authorizing the unilateral use of force. Article 51 expressly recognizes the inherent right of all states to engage in self-defense in the case of "armed attack." In his commencement speech at West Point, the president argued for an expansive reading of this provision. States need not wait for an imminent attack before invoking self-defense, he declared. In an age of terrorism, they should be authorized to launch preemptive strikes long before terrorists are in a position to cross borders and unleash weapons of mass destruction.

The breadth of this doctrine is breathtaking, going far beyond any claim made by previous American governments. None of our military interventions since World War II has required such a wrenching revision of international law. Even when America was directly threatened during the 1962 Cuban missile crisis, President Kennedy did not invoke any notion of "anticipatory self-defense." Although the risks of mass destruction were high, the president's legal arguments were unadventurous: When it came to intercepting Soviet missiles on the high seas, he relied on the regional peacekeeping provisions of the U.N. Charter. When America has claimed self-defense, it has been in less controversial settings -- citing a clearly defined threat to U.S. citizens or, after Sept. 11, the need to prevent a second attack by an organized group of terrorists.

Rather than expanding the scope of preemptive attack, American statesmen have played leading roles in carefully limiting the doctrine.

Secretary of State Daniel Webster is the originating source. In 1837, the British sought to suppress a revolt in eastern Canada that had gained the enthusiastic support of private militias operating from the United States. To cut off this foreign support, the British launched a night raid into New York, burning the Americans' ship and sending it over Niagara Falls.

Five years later, Webster reached an agreement with the British that prohibited future preemptive strikes. Cross-border raids were justified only if there was a "necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation" -- and if nothing "unreasonable or excessive" was done. Webster's formulation remains at the core of international law today.

The United States was also the central player at the decisive moment for self-defense in the 20th century: the judgment at Nuremberg. We remember Nuremberg for its condemnation of genocide. But this was not its major focus. The principal charge against the Nazis was that they waged aggressive war -- and the only way to establish the meaning of aggression was to endorse the limited doctrine of self-defense enshrined in traditional law.

American support for restraint was tested most famously by the Israeli attack on an Iraqi nuclear reactor in 1981. The Israelis claimed the right of preemptive self-defense, but the United States joined in a Security Council resolution condemning the raid as illegal. British Prime Minister Margaret Thatcher was characteristically blunt: "Armed attack in such circumstances cannot be justified. It represents a grave breach of international law."

But do such Thatcherite certainties make sense against the current terrorist threat? Law evolves, and it is certainly arguable that international law should now recognize a right of self-defense in certain unprecedented cases. Let's assume a repeat of the 1981 scenario, with the Israelis offering compelling evidence of an Iraqi threat to their very survival as a nation. Shouldn't they be authorized to preempt such an attack without the prior authorization of the Security Council?

Perhaps, but it is a big stretch to expand this doctrine further to include America's present complaints against Iraq. It is not just a question of establishing that in fact Hussein has developed weapons of mass destruction (and we haven't proved that yet); it is also a question of what he could do with such weapons. While Iraq's missiles can reach Israel, they can't touch American soil. Before the U.S. government can claim to be acting in self-defense, it must present compelling evidence that terrorist groups linked to Hussein, or Hussein himself, are both willing and able to launch an imminent attack on the American homeland.

Unless the administration can make this showing, it will create a devastating precedent for India or Pakistan or China when they, too, seek to evade the Security Council by invoking an open-ended and fact-free notion of "preemptive self-defense." If the president's new doctrine is acceptable at all, it is only after making a compelling factual demonstration to Congress that there is a clear and present danger and that there is no practical alternative to a preemptive strike.

Which leads us back to the crucial constitutional issue. Will the president leave the final decision on war to Congress, or will he attempt to marry unilateralism abroad with unilateralism at home?

To be sure, the president has promised "to consult" with Congress, but this can mean many things -- hurried briefings just before the bombs start to fall, some committee hearings after the fact. Such half-measures aren't remotely sufficient. As in the first Gulf War, the Constitution requires each senator and representative to stand up and be counted, after soberly considering how unilateral intervention will shape the future of international law. The American people, and the people of the world, deserve nothing less.

Congress's involvement is not something to be avoided, as the administration seems bent on doing, but to be revered. To make our way in this new and unsettling world, we must hold fast to our old and most valued principles.

Bruce Ackerman is Sterling Professor of Law and Political Science at Yale and author of "We the People" (Harvard University Press), a history of constitutional law in the United States.