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A Misreading of Law and History on Preemptive Strikes

A Misreading of Law and History on Preemptive Strikes

By Peter Berkowitz - March 11, 2012

Liberalism these days seems to encourage an illiberal and anti-democratic tendency to turn hard questions of morality and politics into easy questions of law. In accordance with this tendency -- and timed to coincide with the major White House meeting on Iran last week between President Obama and Israeli Prime Minister Benjamin Netanyahu -- Bruce Ackerman, a Yale law professor and political scientist, took to the pages of the Los Angeles Times to appeal to the authority of law to end debate about the use of military force to destroy or disable Iran’s nuclear program.

Ackerman maintains that American support for a preemptive strike “would be a violation of both international law and the U.S. Constitution.” Article 51 of the U.N. Charter, according to Ackerman, is unambiguous: “This provision allows states to use military force in self-defense only when responding to an ‘armed attack.’ Preemptive attacks are another matter.”

Preemption, he argues, is foreign to the American constitutional tradition. Apart from the “aberration” of the George W. Bush administration, America has adhered “to a tradition of U.S. statesmanship that began with Secretary of State Daniel Webster,” according to which a state may respond with force only if it confronts, in Webster’s words, “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

Ackerman cites Ronald Reagan as a prime example. According to Ackerman, Reagan affirmed the Webster test in 1981 when “the United States joined in the U.N. Security Council’s unanimous condemnation of Israel’s preemptive assault on an Iraqi nuclear reactor.”

The Bush administration’s invasion of Iraq in 2003, Ackerman asserts, represented a unique “departure from this restrictive approach.” The failure to find weapons of mass destruction has legal significance as it “only emphasizes the wisdom of Webster’s insistence that the ‘necessity of self-defense’ be ‘instant’ and ‘overwhelming.’ ”

Ackerman is wrong in both the history and the law.

Article 51 of the U.N. Charter, which recognizes states’ “inherent” right of self-defense, does not exclude preemption. Ackerman is not alone among progressive law professors in preferring a narrow interpretation of self-defense, but Article 51 has always presumed a right of anticipatory self-defense that is significantly broader than the Webster test.

The traditional right of anticipatory self-defense, broad enough to include the Bush position on imminent threats, was given apt expression three months before the outbreak of World War I by Elihu Root, a former secretary of war and secretary of state. In a speech at the 1914 annual meeting of the Society of International Law, Root, then a U.S. senator, invoked “the right of every sovereign state to protect itself by preventing a condition of affairs in which it will be too late to protect itself.”

When the U.N. Charter was ratified in 1945, Article 51 did not change things. As esteemed Yale Law School scholar of international law, Myres McDougal, wrote in 1963 about the Cuban Missile Crisis, “There is not the slightest evidence that the framers of the United Nations Charter, by inserting one provision which expressly reserves a right of self-defense, had the intent of imposing by the provision new limitations upon the traditional rights of states.”

Moreover, Ackerman is mistaken in portraying the U.S. constitutional tradition as embracing the Webster test. In 1818 -- 25 years before Webster penned his famous formulation -- Secretary of State John Quincy Adams, in defense of Gen. Andrew Jackson’s raids into Spanish Florida, propounded a doctrine of preemptive military action. And Presidents Theodore Roosevelt, William Howard Taft and Woodrow Wilson subsequently deployed American troops -- in the Caribbean, Central America and Mexico -- to preempt threats to the international order. Post-World War II American practices have continued this precedent, ranging from George H.W. Bush's 1989 invasion of Panama to Bill Clinton's 1993 strikes against Iraq and Serbia.

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 Peter Berkowitz is a senior fellow at the Hoover Institution, Stanford University.  His writings are posted at www.PeterBerkowitz.com and you can follow him on Twitter @BerkowitzPeter.

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