["Click here for the 2003 backgrounder
“Preemptive War and International Law']

Links within this document:
Introduction and practical considerations ~ 2002 strategy, as summarized in 2006 NSS ~ Additional 2006 NSS Language ~ NSS and preemptive legal concepts ~ Accurate threat assessment crucial ~ Additional legal and practical considerations, potential targets

The administration of President George W. Bush on March 16, 2006, unveiled its second National Security Strategy of the United States of America (NSS).  While the NSS states a preference for non-military measures, like the September 2002 version, the new NSS explicitly includes a preemptive war doctrine.  It is set out within a section addressing weapons of mass destruction (WMD), specifically the danger of WMD falling into the hands of terrorists. 

A preemptive war doctrine heightens the need for accurate threat assessment, which in turn heightens the need for accurate intelligence, which in turn requires multilateral information-sharing.

Moreover, while the NSS cautions potential adversaries not to use fear of a preemptive attack as a pretext to launch their own preemptive attack, the NSS needs to spell out with greater clarity what U.S. policies actually are.

The UN Charter does envision the possibility of preemptive action by the UN Security Council, as opposed to member states, and not as an option of first resort. 

Traditional concepts of anticipatory self-defense, arguably retained by the UN Charter for states acting unilaterally or multilaterally outside the UN framework, involve strikes aimed at forestalling an imminent attack, not simply generalized dangers.

The NSS borrows language from UN Charter Article 51 relating to an inherent right of self-defense outside the UN framework, but arguably pushes the boundaries of what self-defense means. 

It further borrows a UN Charter concept by suggesting that non-military means are preferred even for non-UN-authorized action, although in the UNSC framework it is the UNSC the Charter envisions taking preventive measures.

The NSS embraces a concept of preemption that incorporates a broader calculus more reminiscent of civilian tort law or tactical military planning, such as taking into account the scope of harm resulting from a worst-case scenario, and analyzing degrees of risk as a broader concept, as opposed to considering whether an actual attack by an adversary is about to occur.

The NSS presents the doctrine within a section entitled “Prevent our Enemies from Threatening Us, our Allies, and Our Friends with Weapons of Mass Destruction” but it does not necessarily indicate whether the doctrine is limited to cases of suspected weapons of mass destruction (WMD).  Instead, the document simply states that that the dangers posed by the prospect of an WMD attacks affects the calculus of decision-making, as described below.

The NSS summarizes the 2002 policy and sets out the current strategy, indicating “the place of preemption in our national security strategy remains the same.” As a result, its benchmark seems to be that the 2002 policy essentially is incorporated within the 2006 NSS.

Summary of 2002 Strategy

The NSS summarized the 2002 preemptive strategy as embracing the following:

• a government’s duty to defend its citizens
• that defense including anticipating and countering threats
• under the rubric of self-defense, acting preemptively
• taking action even if uncertainty remains as to the time and place of an enemy attacking the United States
• a calculus that includes not simply the likelihood that an attack will occur against the United States, or its timing, but the degree of harm resulting if a hypothetical attack came about

The 2006 NSS states, describing the 2002 strategy: 

A. Summary of National Security Strategy 2002
 

… the first duty of the United States Government remains

what it always has been: to protect the American people and American interests … this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD.

To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. The United States will not resort to force in all cases to preempt emerging threats. Our preference is that nonmilitary actions succeed. And no country should ever use preemption as a pretext for aggression.

Countering proliferation of WMD requires a comprehensive strategy involving strengthened nonproliferation efforts to deny these weapons of terror and related expertise to those seeking them; proactive counterproliferation efforts to defend against and defeat WMD and missile threats before they are unleashed; and improved protection to mitigate the consequences of WMD use. We aim to convince our adversaries that they cannot achieve their goals with WMD, and thus deter and dissuade them from attempting to use or even acquire these weapons in the first place.

National Security of the United States of America, March 16, 2006, http://www.whitehouse.gov/nsc/nss/2006/sectionV.html (emphasis added)

Current Strategy

The 2006 NSS indicates that under the current strategy:

• the place of preemption in our national security strategy remains the same
• the U.S. preference is for diplomacy in concert with allies and key regional partners
• examples of other approaches to WMD proliferation include,
  • Missile Defense
  • the Proliferation Security Initiative (PSI)
  • UN Security Council (UNSC) resolution 1540 calling for the criminalization of proliferation
  • law enforcement and intelligence cooperation
  • strengthening the capacity of the International Atomic Energy Agency (IAEA) to detect and respond to proliferation

The NSS reads, in Part V:

Taking action need not involve military force. Our strong preference and common practice is to address proliferation concerns through international diplomacy, in concert

with key allies and regional partners. If necessary, however, under long-standing principles of self defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize. This is the principle and logic of preemption.  The place of preemption in our national security strategy remains the same. We will always proceed deliberately, weighing the consequences of our actions. The reasons for our actions will be clear, the force measured, and the cause just.

(emphasis added)

NSS and preemptive legal concepts

The summary of 2002 strategy makes explicit reference to an “inherent right of self-defense,” borrowing language from Article 51 of the UN Charter.  The UN Charter sets out a global security system centered around the UNSC, but Article 51 acknowledges states retaining an inherent right to use force in self-defense, unilaterally or multilaterally, outside the UNSC system. 

The key is that force used in the absence of UNSC approval be in self-defense, i.e., be in response to an attack. 

Under traditional international law the concept of self-defense included anticipatory self-defense, in which a first strike paradoxically could be deemed defensive in nature, if made against a target which itself was on the verge of attacking. 

Viewpoints differ as to whether the Article 51 right of self-defense includes anticipatory self-defense, and the extent to which the UN Charter is even a strong source of international law.

However, the prevailing view is probably that, either way, international law includes a right of anticipatory self-defense against an imminent attack.

The NSS embraces such a concept, with two additional considerations.  One is that anticipatory self-defense be made against a threat or a danger as opposed to an actual attack that is imminent.  The second is that a calculus is made as to the scope of harm resulting from a still-hypothetical attack; on this latter point, the calculus includes not just the degree of threat but the harm that would result of the threat transformed into an actual attack.   

Factors apparently entering the administration’s judgment under the NSS appear to be:

• the risk of a (potential) adversary’s ability to carry out an attack (its capacity to attack, e.g., the existence of a WMD program or actual WMD)
• the likelihood of attack
• the lack of deterrence (more relevant in the case of suicidal terrorists than a traditional sovereign state)
• the scope of harm if risk materializes into an attack (argued to be enormous in the case of WMD)
• the exhaustion of other remedies, such as diplomacy
• the right of preemptive self-defense includes collective self-defense, acting on behalf of an ally

As such the calculus is analogous to that undertaken in areas such as tort law and risk management, in which there is an assessment of (1) risk, (2) scope of harm if the risk materializes and (3) cost of prevention.  It also is similar to tactical military planning, i.e., the planning of battles in a war already underway, to the extent that military thinking, like legal thinking (i.e., legal thinking in the context of advising clients concerning practical judgments), seeks to envision worst-case scenarios and guard against them.

But in the case of, for example, product tort liability, cost of prevention is the cost of installing an innovative safeguard.  In the case of preemptive war, the cost of “prevention” is war itself.  War itself is regarded as the “safeguard” against a WMD attack by the adversary or the adversary’s confederates.

Restating the nature of the traditional standard?

Modern post-Sept. 11, 2001, realities test the boundaries of national security planning, the international security system, and international law, given the nature of the WMD proliferation threat and the terrorist threat.  In the context of preemptive war, it is possible the NSS may be seeking not simply to push boundaries, but to reinterpret the original standard in the context of current developments and advances in technology.  Analogous to an activist judge pushing a “living Constitution” that seeks to stretch 200-year-old standards to cover modern activities without the benefit of constitutional amendments, the NSS doctrine may seek to rewrite the old anticipatory self-defense standard in the following manner.

The traditional rule, it might be arguing, was not just that one could call a first-strike an act of self-defense if an enemy was itself poised to attack, but really meant that one could call a first-strike an act of self-defense if a potential adversary posed a cognizable threat, and the first-strike was made at a point in time after which the results of an enemy attack would be devastating against civilians. 

Such a standard, for example, applied in the Cold War, of course, could have produced dangerous results.

Iraq experience and threat assessment

The Iraq experience demonstrates the difficulties of ensuring that intelligence-gathering and -analysis, including in the area of WMD proliferation assessment, is comprehensive, exhaustive, and correct.

By pushing back the threshold to an earlier stage of threat, the basis for preemption could become much more problematic in the absence of good intelligence.

The justifiable need for at least some secrecy in the area of national security heightens concern over adequate checks and balances, and transparency, in this arena.

Additional legal and practical considerations

Law, including international law, is about setting up stable frameworks and predictable consequences.  International law, especially in the area of international security, serves the important function of indicating what a country cares about and serving notice that crossing certain boundaries invites a response.  Clarity and agreement about boundaries can contribute to maintaining peace and stability.  The NSS position on preemptive war requires additional clarity, and reassurances of restraint are needed.

While law exists in the abstract, it manifests itself in specific cases and contexts.  As a practical matter, in the context of terrorism and WMD terrorism, preemptive action would never apply in most cases, and in fact military action in general would never apply in most cases, whether preemptive or in response to attacks that already have occurred. 

The invasion of Afghanistan, for example, took place not because of Sept. 11 in and of itself, but because of the attacks of Sept. 11 combined with the fact Afghanistan (1) was a failed state (2) hostile to the United States (3) that refused to cooperate with efforts to apprehend al-Qaida and (4) in fact actively welcomed, harbored, and tolerated the autonomy of al-Qaida as a state within a state.  In contrast, the United States did not bomb Germany over the presence of an al-Qaida cell in Hamburg, because Germany was (1) an ally (2) with a  functioning system of governance (3) that was more than willing to go after al-Qaida and (4) simply arrested and prosecuted the cell’s confederates.

The option of military action for the United States in the context of WMD terrorism, preemptive or otherwise, is quite limited in geography, and the biggest issue may not be whether the United States attacks but whether those potential targets will become skittish.

The Bush administration needs to clarify its positions strenuously, including its country-specific policies centering around diplomacy and a U.S. commitment to strengthening the international system, including the UN system, the IAEA, and the UNSC-IAEA partnership.

Potential nation-state adversaries should be made aware that there is no attack against them imminent, and that, if rattled by U.S. preemptive policies, they hypothetically were to launch their own preemptive unilateral attacks on U.S. or allied forces, prompting a U.S. response, the result would be devastating and catastrophic, rendering such an attack on their part foolish and self-defeating.

While the United States is rumored to be “stretched thin” in Iraq, the supposed “stretching” is not with respect to conventional war-making capacity, but the Herculean task of nation-building and the experiment in transformation that seeks to make troops trained to clear a battle space instead become battle-space urban planners and social workers.  The toppling of Saddam was accomplished in relatively short-order, and nation-building has limited practical impact on the U.S. forward strategic presence in various parts of the world, or its capacity to carry out the mission the U.S. forces are trained and equipped for, the projection of wholesale military force.

At the same time, the need to defuse sources of potential instability through multilateral diplomatic efforts and cooperation by all parties is highlighted by the potential for misunderstanding.  The March 16, 2006, White House press conference, for example, during which a veteran journalist interrupted the White House press spokesman repeatedly with her own skittishness over preemptive policies, included the following exchange:

Q Are we threatening Iran with preemptive war?

MR. McCLELLAN: We're trying to resolve this in a diplomatic manner by working with our friends and allies

Spoken remarks, Press Briefing by Scott McClellan, March 16, 2006,

http://www.whitehouse.gov/news/releases/2006/03/20060316-4.html

[Click here for the 2003 backgrounder “Preemptive War and International Law"]

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