Preemption Doctrine Definition:

The superceding of any lower jurisdiction's law in the event of a law on topic extant within a higher jurisdiction.

n Musewicz v Cordara, Justice Flaherty of the Commonwealth Court of Pennsylvania used these words:

"[P]reempts may be understood as a synonym for supersedes. Preemption ... applies to situations where a higher authority (in this case, the State) regulates an area so comprehensively and pervasively as to preclude the coexistence of regulation by a lower authority (in this case, the County)."

Madam Justice Nancy Saitta of the Supreme Court of Nevada offered a complete description in Nanopierce Technologies:

"The preemption doctrine, which provides that federal law supersedes conflicting state law, arises from the Supremacy Clause of the United States Constitution. The Supremacy Clause, found in Article VI, requires that "the laws of the United States . . . shall be the supreme law of the land ... any thing in the Constitution or laws of any State to the contrary notwithstanding.

"Thus, when a conflict exists between federal and state law, valid federal law overrides, i.e., preempts, an otherwise valid state law. Whether a federal enactment preempts state law is fundamentally a question of congressional intent—did Congress expressly or impliedly intend to preempt state law? Even when implied, Congress's intent to preempt state law, in light of a strong presumption that areas historically regulated by the states generally are not superseded by a subsequent federal law, must be clear and manifest.

"Express preemption: Congress expressly preempts state law when it explicitly states that intent in a statute's language.Thus, when determining whether Congress has expressly preempted state law, a court must examine statutory language—any explicit preemption language generally governs the extent of preemption.

"Implied preemption: When Congress does not include statutory language expressly preempting state law, Congress's intent to preempt state law nonetheless may be implied in two circumstances known as field preemption and conflict preemption.

"First, under field preemption, preemption is implied when congressional enactments so thoroughly occupy a legislative field, or touch a field in which the federal interest is so dominant, that Congress effectively leaves no room for states to regulate conduct in that field. To determine whether Congress has preempted a field of law, the entire regulatory scheme must be examined to determine whether, based on its level of comprehensiveness or the nature of the field regulated, Congress intended to preclude states from also imposing requirements on that field. If, based on that examination, it can be inferred that Congress intended to occupy that legislative field, state requirements are preempted regardless of any specific law's conflict.

"Second, even when Congress's enactments do not pervade a legislative field or regulate an area of uniquely federal interest, Congress's intent to preempt state law is implied to the extent that federal law actually conflicts with any state law. Conflict preemption analysis examines the federal statute as a whole to determine whether a party's compliance with both federal and state requirements is impossible or whether, in light of the federal statute's purpose and intended effects, state law poses an obstacle to the accomplishment of Congress's objectives."

REFERENCES: Musewicz v. Cordaro, 925 A. 2d 172 (2006) Nanopierce Tech. v. Depository Trust, 168 P. 3d 73 (2006)

Writing at CNN.com, former CIA Director Michael Hayden, an adviser to Mitt Romney, makes a provocative point. If Barack Obama’s threat of military action to stop Iran from developing a nuclear weapon is serious, doesn’t that amount to a policy of… pre-emption?

Read more: http://swampland.time.com/2012/03/20/the-bush-obama-pre-emption-doctrine/#ixzz2HTrMe2KF

Secretary of Defense Leon Panetta probably gave the clearest administration statement when he said that if “we get intelligence that they’re proceeding with developing a nuclear weapon, then we will take whatever steps are necessary to stop it.”

That, combined with the president’s repeated statements that Iran getting a nuclear weapon is “unacceptable,” surprisingly aligns this administration with the George W. Bush administration’s doctrine of pre-emption. That doctrine famously described it as a duty to “anticipate and counter threats, using all elements of national power, before the threats can do grave damage.”

To be sure, Barack Obama has never asserted a right of pre-emptive action as assertively as Bush did. Take, for instance, this key passage from Bush’s famous 2002 West Point graduation speech:

Our security will require the best intelligence, to reveal threats hidden in caves and growing in laboratories…. Our security will require transforming the military you will lead — a military that must be ready to strike at a moment’s notice in any dark corner of the world. And our security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.

But in a certain sense, Obama is asserting an even broader rationale for pre-emption. When Obama calls an Iran bomb “unacceptable,” and reiterates his willingness to use the military to prevent one, he doesn’t focus on any direct threat to the United States. Here’s Obama talking to the Atlantic‘s Jeffrey Goldberg earlier this month:

In addition to the profound threat that it poses to Israel, one of our strongest allies in the world; in addition to the outrageous language that has been directed toward Israel by the leaders of the Iranian government — if Iran gets a nuclear weapon, this would run completely contrary to my policies of nonproliferation. The risks of an Iranian nuclear weapon falling into the hands of terrorist organizations are profound. It is almost certain that other players in the region would feel it necessary to get their own nuclear weapons. So now you have the prospect of a nuclear arms race in the most volatile region in the world, one that is rife with unstable governments and sectarian tensions. And it would also provide Iran the additional capability to sponsor and protect its proxies in carrying out terrorist attacks, because they are less fearful of retaliation.

Yes, Obama is (legitimately, I would say) concerned that an Iranian nuke might fall into the hands of terrorists. But his list mostly consists of indirect threats to the U.S. and American lives: the security of Israel; nonproliferation; regional stability and an emboldened regime in Tehran. Those are all valid concerns. But the rationale for bombing Iran, if it comes to that, will be more abstract than the one that was used to justify the American invasion of Iraq. Go figure.

Read more: http://swampland.time.com/2012/03/20/the-bush-obama-pre-emption-doctrine/#ixzz2HTrRvG3F

What happens when state law conflicts with federal law? The answer relies on the doctrine known as federal preemption.

The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the "supreme law of the land". This means that judges in every state must follow the Constitution, laws, and treatises of the federal government in matters which are directly or indirectly within the government's control. Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict. Thus, a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law.

Example 1:

State A has enacted a law that says "no citizen may sell blue soda pop anywhere in the state".9516225 The federal government, however, has established the "Anti-Blue Sales Discrimination Act", prohibiting actions that discriminate against the color of goods sold. A local food and beverage vendor who sells blue soda pop in vending machines is charged with violating the state law. She may challenge the state law on the basis that it is preempted by federal law, and therefore violates the Supremacy Clause of the U.S. Constitution.

Example 2:

The United States passes a law promising to preserve and to protect Indian tribes. State B wants to tax Indian tribes located within its state. Under the Supremacy Clause of the U.S., State B may not tax a federally recognized Indian tribe since doing so would violate the tribe's political interest in which the U.S. has promised to protect.

Moreover, the federal government has broad powers under the Supremacy Clause to create, regulate, and enforce the laws of the United States. The concept of federalism, or that of federal power, has a long-standing history dating back to the late 1700's, during the time in which the nation's founding fathers signed the U.S. Constitution. Among those powers, the federal government has certain express (or "enumerated") powers which are specifically spelled out in the U.S. Constitution, including the right to regulate commerce, declare war, levy taxes, establish immigration and bankruptcy laws, and so on.

Not only does the federal government have express powers under the U.S. Constitution, it also has implied powers, or powers not specifically mentioned in the Constitution. This was the decision in the landmark Supreme Court case of McCulloch v. Maryland. For example, the Constitution does not expressly mention the right to privacy, or the right of people to adopt, or seek an abortion, however, these rights can be inferred by the Constitution itself, or from the later amended Bill of Rights.

Whether express or implied, federal law will almost always prevail when it interferes or conflicts with state law, except in circumstances where the federal law is deemed unconstitutional, or where the Supremacy Clause does not apply.

To that end, people living within the U.S. should be aware of the broad powers of the federal government, especially on issues affecting their daily lives, such as bankruptcy issues, discrimination claims, immigration challenges, federal taxation, and many others. A constitutional law attorney can help with the construction and interpretation of a federal law as applied to a particular state law.

A federal district court judge handed President Obama a major victory last month by ruling that key parts of Arizona's immigration enforcement statute are likely pre-empted by federal law—so Arizona cannot legally enforce those provisions since federal law is constitutionally supreme over state law. Conservatives assailed the decision as reflecting judicial activism, but their attacks were misguided.

The Obama administration's successful legal position in the case was consistent with controlling legal principles—and with a line of Supreme Court cases long championed by the business community and vigorously criticized by the left's principal constituency: the trial lawyers.

For decades, conservatives and business interests have pressed the courts to adopt a broad conception of federal pre-emption that would rein in runaway jury verdicts in state courts. Under this theory of "implied pre-emption," state laws are pre-empted by federal law if they would burden the federal government.

This venerable doctrine dates back to McCulloch v. Maryland (1819), in which the Supreme Court struck down the state of Maryland's attempt to tax the second bank of the United States (a precursor to today's Federal Reserve). As Chief Justice John Marshall famously observed, "the power to tax involves the power to destroy" and thus cannot be wielded by states against the federal government.

That is essentially what Judge Susan Bolton held when she preliminarily enjoined Arizona from requiring state officers to verify arrestees' immigration status with federal authorities. Even though federal law contemplates that states might make such inquiries, Judge Bolton found that the Arizona statute would likely unleash a flood of inquiries that would inhibit the Department of Homeland Security's ability to carry out its other duties.

Her principal legal authority for that ruling? A 2001 Supreme Court decision authored by the late Chief Justice William H. Rehnquist. In that case, known as Buckman, the plaintiffs alleged they were injured by an FDA-approved device, and they asserted that the device's manufacturer had misled the FDA about its intended use. Although federal law also makes it a crime to mislead the FDA, the Court unanimously held that the plaintiffs' state-law claims were pre-empted.

The reason was that allowing such claims would impose a severe burden on the FDA. As Rehnquist wrote, it would "cause applicants to fear that their disclosures to the FDA, although deemed appropriate by the Agency, will later be judged insufficient in state court. Applicants would then have an incentive to submit a deluge of information that the Agency neither wants nor needs, resulting in additional burdens on the FDA . . ."

Exactly such a deluge would result from enforcing Arizona's immigration statute. It is hard to fault the Obama administration for following this precedent. But will it do so in a few weeks, when its newfound support for these principles is put to the test?

The Supreme Court has asked the Obama administration's solicitor general to address whether federal law pre-empts state-law personal injury claims against generic drug manufacturers. The plaintiffs in these cases argue that the generic manufacturers should have changed their product labels to add unique warnings that the FDA did not require the brand-name equivalent to bear. Because federal law expressly requires each generic drug's label to be "the same" as the brand manufacturer's FDA-approved label, these claims face an uphill battle in court.

As a result, the plaintiffs are asserting that state law obligated the generic manufacturers at least to ask the FDA to review the product-labeling and then approve stronger warnings—just like Arizona's immigration law would obligate state officials to ask DHS to verify an arrestee's immigration status.

If the well-funded DHS can't handle the flood of calls it would likely receive from Arizona, then the cash-strapped FDA can't handle the deluge of labeling reviews that would inevitably result from the plaintiffs' victory.

Will the Obama administration have the courage to alienate the trial lawyers by taking a principled position in the pending generic drug cases? Arizona will be paying close attention.

Preemptive war

A preemptive war is a war that is commenced in an attempt to repel or defeat a perceived offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war before that threat materializes. It is a war which preemptively 'breaks the peace'. The term: 'preemptive war' is sometimes confused with the term: 'preventive war'. The difference is that a preventive war is launched

to destroy the potential threat of an enemy, when an attack by that party is not imminent or known to be planned, while a preemptive war is launched in anticipation of immediate enemy aggression.[1] Most contemporary scholarship equates preventive war with aggression, and therefore argues that it is illegitimate.[2] The waging of a preemptive war has less stigma attached than does the waging of a preventive war.[3] The initiation of armed conflict: that is being the first to 'break the peace' when no 'armed attack' has yet occurred, is not permitted by the UN Charter (see 'Legality' below), unless authorized by the UN Security Council as an enforcement action. (Some authors have claimed that when a presumed adversary first appears to be beginning confirmable preparations for a possible future attack, but has not yet actually attacked, that the attack has in fact 'already begun', however this opinion has not been upheld by the UN.)[4][5]

Theory and practice of preemptive war

Prior to World War I

As early as 1625, Hugo Grotius characterized a state's right of self-defense to include the right to forcibly forestall an attack.[6] In 1837 a certain legal precedent regarding preemptive wars was established in the Caroline affair when British forces in Canada crossed the United States border and killed several Canadian rebels and one American citizen who were preparing an offensive against the British in Canada. The United States rejected the legal ground of the Caroline case. In 1842, U.S. Secretary of State Daniel Webster pointed out that the necessity for forcible reaction must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation." This formulation is part of the Caroline test , which "is broadly cited as enshrining the appropriate customary law standard".[7]

World War I period (1914 - 1918)

During the course of the destructive and costly World War I, for the first time in history, the concept of the "War to end all wars," began to be seriously considered.[8] As a further expression of this hope, upon the conclusion of the war, the League of Nations (LON) was formed. The primary aim of this organization was to prevent war, as all signatories were required to agree to desist from the initiation of all wars, (preemptive or otherwise). All of the victorious nations emerging out of World War I eventually signed this agreement, with the notable exception of the United States.[9]

League of Nations period (1919 - 1939)

During the 1920s, the LON peaceably settled numerous international disputes, and was generally perceived as succeeding in its primary purpose. It was only in the 1930s that its effectiveness in preventing wars began to come into question. Such questions began to arise when it first became apparent in 1931 that it was incapable of halting aggression by Japan in Manchuria, starting with the Mukden Incident. In the Mukden Incident, Japan claimed to be fighting a 'defensive war' in Manchuria, attempting to 'preempt' supposedly aggressive Chinese intentions towards the Japanese. According to the Japanese, the Chinese had started the war by blowing up a certain bridge near Mukden, China. Therefore clearly the Chinese were the aggressors, and the Japanese were merely 'defending themselves'. A predominance of evidence has since indicated that the bridge had in fact most probably been blown up by Japanese operatives.[10]

In 1933 the impotency of the LON became more pronounced when notices were provided by Japan and Germany that they would be terminating their memberships in the League of Nations. Italy shortly followed suit and exited the League in 1937.[11] Soon also Italy and Germany began engaging in militaristic campaigns designed to either enlarge their borders or to expand their sphere of military control, and the League of Nations was shown to be powerless to stop them.[11] This perceived impotency of the League of Nations was a contributing factor which eventually led to the full outbreak of World War II in 1939.[12] The start of World War II is generally dated from the event of Germany's invasion of Poland. It is noteworthy that Germany claimed at the time that its invasion of Poland was in fact a 'defensive war,' as it had allegedly been invaded by a group of Polish saboteurs, signaling a potentially larger invasion of Germany by Poland that was soon to be under way. Thus Germany was left with no option but to preemptively invade Poland, thereby halting the alleged Polish plans to

invade Germany. It was later discovered that Germany had fabricated the evidence for the alleged Polish saboteurs as a part of the Gleiwitz Incident.

World War II period (1939 - 1945)

Once again, during the course of the even more widespread and lethal World War II the hope of somehow definitively ending all war (including preemptive war) was seriously discussed. This dialogue ultimately resulted in the re-establishment of the successor organization to the old LON, namely the United Nations (UN). As with the LON, the primary aim and hope of the new UN was the prevention of all wars (including preemptive wars). Unlike the previous LON, the organization had the support of the United States.

In analyzing the many components of World War II, if one might consider as separate individual wars, the various attacks on previously neutral countries, then one might consider the attacks against Iran and Norway to have been preemptive wars.

In the case of Norway, the 1940 German invasion of Norway in the 1946 Nuremberg trials the German defense argued that Germany was "compelled to attack Norway by the need to forestall an Allied invasion and that her action was therefore preemptive."[13] The German defence was referring to Plan R 4 and its predecessors. Norway was vital to Germany as a transport route for iron ore from Sweden, a supply that Britain was determined to stop. One adopted British plan was to go through Norway and occupy cities in Sweden.[14][15] An Allied invasion was ordered on March 12, and the Germans intercepted radio traffic setting March 14 as deadline for the preparation.[16] Peace in Finland interrupted the Allied plans, but Hitler became, rightly, convinced that the Allies would try again, and ordered operation Weseruebung.

The new Allied plans were Wilfred and Plan R 4. The plan was to provoke a German reaction by laying mines in Norwegian waters, and once Germany showed signs of taking action UK troops would occupy Narvik, Trondheim and Bergen and launch a raid on Stavanger to destroy Sola airfield. However "the mines were not laid until the morning of 8 April, by which time the German ships were advancing up the Norwegian coast."[17] However The International Military Tribunal at Nuremberg determined that no Allied invasion was imminent, and therefore rejected the German argument that Germany was entitled to attack Norway.[18]

In the case of Iran, in which Soviet and British forces preemptively invaded this country, see Anglo-Soviet invasion of Iran.

Pre September 11, 2001 United Nations period (1945 - 2001)

Israeli Air Force personnel inspect the wreckage of an Egyptian aircraft shot down over Sinai during the Six-Day War

The Six-Day War, which began when Israel launched a successful attack on Egypt on June 5, 1967, has been widely described as a preemptive war[19][20][21][22] and is, according to the United States State Department, "perhaps the most cited example [of preemption]."[23] Others have alternatively referred to it as a preventive war.[24] Some have referred to the war as an act of “interceptive self-defense.”[25] According to this view, though no single Egyptian step may have qualified as an armed attack, Egypt’s collective actions made clear that she was bent on armed attack against Israel. One academic has claimed that Israel's attack was not permissible under the Caroline test , arguing that there was no overwhelming threat to Israel's survival.[26]

Post September 11, 2001 Bush administration period (2002 - 2008)

The doctrine of preemption gained renewed reputation following the U.S. invasion of Iraq. Bush administration mainly claimed for the necessity to intervene to prevent Saddam Hussein from deploying weapons of mass destruction (WMD) prior to launching an armed attack. At that time, U.S. decision-makers faced the threat of WMD was imminent and believed that security of the nation was at

a great risk. Soon the Congress passed its joint resolution in October 2002 authorizing the president to use military force against Saddam Hussein's regime. [27] However, later it has been confirmed that no WMD was found and that Bush administration’s suspicion was mistaken. Some questions the true intention of Bush administration for invading Iraq, based on possibility of retaliation on the terrorist attacks which occurred on September 11, 2001. It is still unclear whether the U.S. invasion of Iraq is legally justifiable and at the same time, the Iraqis’ resistance of the attack is justifiable.

Arguments for preemptive war made during the Bush administration

Sofaer's four elements

The scholar Abraham D. Sofaer identified four key elements for justification of preemption:[28]

1. The nature and magnitude of the threat involved;2. The likelihood that the threat will be realized unless preemptive action is taken;3. The availability and exhaustion of alternatives to using force; and4. Whether using preemptive force is consistent with the terms and purposes of the U.N. Charter

and other applicable international agreements.

Walzer's three elements

Professor Mark R. Amstutz (citing Michael Walzer) adopted a similar but slightly varied set of criteria and noted three factors when evaluating the justification of a preemptive strike.[29]

1. The existence of an intention to injure;2. The undertaking of military preparations that increase the level of danger; and3. The need to act immediately because of a higher degree of risk.

The counter proliferation self-help paradigm

The proliferation of WMDs by rogue nations gave rise to a certain argument by scholars concerning preemption.[30][31][32] They argued that the threat need not be “imminent” in the classic sense and that the illicit acquisition of these weapons, with their capacity to unleash massive destruction, by rogue nations, created the requisite threat to peace and stability as to have justified the use of preemptive force. NATO's Deputy Assistant Secretary General for WMD, Guy Roberts cited the 1962 Cuban Missile Crisis, the 1998 US attack on a Sudanese pharmaceutical plant, (identified by US intelligence to have been a chemical weapons facility) and the 1981 Israeli attack on Iraq’s nuclear facility at Osirak as examples of the counter-proliferation self-help paradigm.[33] Regarding the Osirak attack, Roberts noted that at the time, few legal scholars argued in support of the Israeli attack but notes further that, “subsequent events demonstrated the perspicacity of the Israelis, and some scholars have re-visited that attack arguing that it was justified under anticipatory self-defense.”[34] Following the U.S. invasion of Iraq in 2003, American forces captured a number of documents detailing conversations that Sadaam Hussein had with his inner sanctum.[35] The archive of documents and recorded meetings confirm that Hussein was indeed aiming to strike at Israel.[35] In a 1982 conversation Hussein stated that, "Once Iraq walks out victorious, there will not be any Israel." Of Israel’s anti-Iraqi endeavors he noted, "Technically, they [the Israelis] are right in all of their attempts to harm Iraq."[35]

Post Bush administration period (2009 to present)

Since the departure of the Bush administration, the Obama administration has made no such claims to retain the right to declare a preemptive war, but has adopted and continued many polices of the Bush Doctrine.[36]

Intention

The intention with a preemptive strike is to gain the advantage of initiative and to harm the enemy at a moment of minimal protection, for instance while vulnerable during transport or mobilization; however the concept of preemptive war can be used to start a war by claiming that the nation would soon be under attack and therefore had to defend itself. The concept is controversial because it can be abused and used as a justification to start a war on questionable grounds.

While the labeling of an attack (on strategic and tactical levels) seldom is controversial, it is much more so in regard to the initiation of a war.

LegalityFurther information: War of aggression, Jus ad bellum, and UN Charter

Article 2, Section 4 of the U.N. Charter is generally considered to be 'jus cogens' (literally: "compelling law", in practice: "higher international law"), and prohibits all U.N. members from exercising "the threat or use of force against the territorial integrity or political independence of any state". But in the modern framework of the UN Charter, it is the phrase "armed attack occurs" in Article 51[37] that draws the line between legitimate and illegitimate military force. [27] From this it is reasonable to assume that if no armed attack has yet occurred that no automatic justification for preemptive 'self-defense' has yet been made 'legal' under the UN Charter. In order to be justified as an act of self-defense, two conditions must be fulfilled which are widely regarded as necessary for its justification. The first of these is that actor must have believed that the threat is real, as opposed to (merely) perceive. The second condition is that the force used in self-defense must be proportional to the harm which the actor is threatened. When it comes to a situation where an armed attack is considered as a self-defense, it usually narrows realistic options for avoidance by nonviolent means such as negotiation, retreat, or calling upon higher authorities (such as the police or the UN). [38]

Bush Doctrine

President Bush makes remarks in 2006 during a press conference in the Rose Garden about Iran's nuclear ambitions and discusses North Korea's nuclear test

The Bush Doctrine is a phrase used to describe various related foreign policy principles of former United States president George W. Bush. The phrase was first used by Charles Krauthammer in June 2001 to describe the Bush Administration's "unilaterally withdrawing from the ABM treaty and rejecting the Kyoto protocol".[1] After 9/11 the phrase described the policy that the United States had the right to secure itself against countries that harbor or give aid to terrorist groups, which was used to justify the 2001 invasion of Afghanistan.[1][2]

Different pundits would attribute different meanings to "the Bush Doctrine", as it came to describe other elements, including the controversial policy of preventive war, which held that the United States should depose foreign regimes that represented a potential or perceived threat to the security of the United States, even if that threat was not immediate; a policy of spreading democracy around the world, especially in the Middle East, as a strategy for combating terrorism; and a willingness to unilaterally pursue U.S. military interests.[3][4][5] Some of these policies were codified in a National Security Council text entitled the National Security Strategy of the United States published on September 20, 2002.[6]

The phrase "Bush Doctrine" was rarely used by members of the Bush administration. The expression was used at least once, though, by Vice President Dick Cheney, in a June 2003 speech in which he said, "If there is anyone in the world today who doubts the seriousness of the Bush Doctrine, I would urge that person to consider the fate of the Taliban in Afghanistan, and of Saddam Hussein's regime in Iraq."[7]

National Security Strategy of the United States

The main elements of the Bush Doctrine were delineated in a document, the National Security Strategy of the United States, published on September 17, 2002.[8] This document is often cited as the definitive statement of the doctrine.[9][10][11] It was updated in 2006[12] and is stated as follows:[13]

The security environment confronting the United States today is radically different from what we have faced before. Yet the first duty of the United States Government remains what it always has been: to protect the American people and American interests. It is an enduring American principle that 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.

Components

The Bush Doctrine has been defined as a collection of strategy principles, practical policy decisions, and a set of rationales and ideas for guiding United States foreign policy.[14] Two main pillars are identified for the doctrine: preemptive strikes against potential enemies and promoting democratic regime change.[14][15]

The George W. Bush administration claimed that the United States is locked in a global war; a war of ideology, in which its enemies are bound together by a common ideology and a common hatred of democracy.[14][16][17][18][19][20]

Out of the National Security Strategy, four main points are highlighted as the core to the Bush Doctrine: Preemption, Military Primacy, New Multilateralism, and the Spread of Democracy.[21] The document emphasized preemption by stating: "America is now threatened less by conquering states than we are by failing ones. We are menaced less by fleets and armies than by catastrophic technologies in the hands of the embittered few," and required "defending the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders."[22]

Secretary of Defense Donald Rumsfeld remarked thus in 2006, in a statement taken to reflect his view of the Doctrine's efficacy: "If I were rating, I would say we probably deserve a D or D+ as a country as how well we're doing in the battle of ideas that's taking place. I'm not going to suggest that it's easy, but we have not found the formula as a country."[19]

In his 2010 memoir Decision Points, President Bush articulates his discrete concept of the Bush Doctrine. According to the President, his doctrine consisted of four "prongs," three of them practical, and one idealistic. They are the following: (In his words)

1. "Make no distinction between terrorists and the nations that harbor them--and hold both to account."

2. "Take the fight to the enemy overseas before they can attack us again here at home."3. "Confront threats before they fully materialize."4. "Advance liberty and hope as an alternative to the enemy's ideology of repression and fear."

Unilateralism

Unilateral elements were evident in the first months of Bush's presidency. Conservative Charles Krauthammer, coiner of the term "Bush Doctrine," deployed "unilateralism," in February 2001 to refer

to the president's increased unilateralism in foreign policy, specifically regarding the president's decision to withdraw from the ABM treaty.[23][24]

There is some evidence that Bush's willingness for the United States to act unilaterally came even earlier. The International Journal of Peace Studies 2003 article "The Bush administration's image of Europe: From ambivalence to rigidity" states:[25]

The Republican Party's platform in the 2000 presidential elections set the administration's tone on this issue. It called for a dramatic expansion of NATO not only in Eastern Europe (with the Baltic States, Romania, Bulgaria and Albania) but also, and most significantly, in the Middle East, the Caucasus and Central Asia. The purpose is to develop closer cooperation within NATO in dealing with geopolitical problems from the Middle East to Eurasia. The program therefore takes a broad and rather fuzzy view of Europe.

It would be premature at this stage to say that the US administration has had a fundamental change of heart and shed its long-ingrained reflexes in dealing with Russia.

When it comes to the future of Europe, Americans and Europeans differ on key issues. The differences seem to point toward three fundamental values which underpin the Bush administration's image of Europe. The first is unilateralism, of which the missile shield is a particularly telling example. The American position flies in the face of the European approach, which is based on ABM talks and multilateralism. An opposition is taking shape here between the leading European capitals, which want to deal with the matter by judicial means, and the Americans, who want to push ahead and create a fait accompli.

Attacking countries that harbor terroristsAt a joint session of Congress President Bush pledges to defend America's freedom against the fear of terrorism. September 20, 2001 (audio only)

The doctrine was developed more fully as an executive branch response in the wake of the September 11, 2001 attacks. The attacks presented a foreign policy challenge, since it was not Afghanistan that had initiated the attacks, and there was no evidence that they had any foreknowledge of the attacks.[26] In an address to the nation on the evening of September 11, Bush stated his resolution of the issue by declaring that "we will make no distinction between the terrorists who committed these acts and those who harbor them."[27] President Bush made an even more aggressive restatement of this principle in his September 20, 2001 address to a Joint Session of Congress:[28]

We will pursue nations that provide aid or safe haven to terrorism. Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.

Ari Fleischer, the White House Press Secretary at the time, later wrote in an autobiographical account of that address, "In a speech hailed by the press and by Democrats, [the President] announced what became known as the 'Bush Doctrine'".[29] The first published reference after the 9/11 attacks to the terror-fighting doctrine appeared September 30 in an op-ed by political scientist Neal Coates.[30]

This policy was used to justify the invasion of Afghanistan in October 2001,[2] and has since been applied to American military action against Al Qaeda camps in North-West Pakistan.[citation needed]

Pre-emptive strikes

Bush addressed the cadets at the U.S. Military Academy (West Point) on June 1, 2002, and made clear the role pre-emptive war would play in the future of American foreign policy and national defense:[31]

We cannot defend America and our friends by hoping for the best. We cannot put our faith in the word of tyrants, who solemnly sign non-proliferation treaties, and then systemically break them. If we wait for threats to fully materialize, we will have waited too long — Our security will require transforming

the military you will lead — a military that must be ready to strike at a moment's notice in any dark corner of the world. And our security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.

The stance of the US administration was that the harsh measures to spread the democracy around the globe are inevitable and efficacious, in which for instance, liberating Iraq will not only plant democracy in the area, but also enable the democracy to flourish in the rest of the Middle East.[32]

Two distinct schools of thought arose in the Bush Administration regarding the question of how to handle countries such as Iraq, Iran, and North Korea (the so-called "Axis of Evil"[33] states). Secretary of State Colin Powell and National Security Advisor Condoleezza Rice, as well as U.S. Department of State specialists, argued for what was essentially the continuation of existing U.S. foreign policy. These policies, developed after the Cold War, sought to establish a multilateral consensus for action (which would likely take the form of increasingly harsh sanctions against the problem states, summarized as the policy of containment). The opposing view, argued by Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld and a number of influential Department of Defense policy makers such as Paul Wolfowitz and Richard Perle, held that direct and unilateral action was both possible and justified and that America should embrace the opportunities for democracy and security offered by its position as sole remaining superpower.

Democratic regime change

In a series of speeches in late 2001 and 2002, Bush expanded on his view of American foreign policy and global intervention, declaring that the United States should actively support democratic governments around the world, especially in the Middle East, as a strategy for combating the threat of terrorism, and that the United States had the right to act unilaterally in its own security interests, without the approval of international bodies such as the United Nations.[3][4][5] This represented a departure from the Cold War policies of deterrence and containment under the Truman Doctrine and post–Cold War philosophies such as the Powell Doctrine and the Clinton Doctrine.

In his 2003 State of the Union Address, Bush declared:[34]

Americans are a free people, who know that freedom is the right of every person and the future of every nation. The liberty we prize is not America's gift to the world, it is God's gift to humanity.

After his second inauguration, in a January 2004 speech at National Defense University, Bush said: "The defense of freedom requires the advance of freedom."

Neoconservatives and the Bush Doctrine held that the hatred for the West and United States in particular does not exist because of actions perpetrated by the United States, but rather because the countries from which terrorists emerge are in social disarray and do not experience the freedom that is an intrinsic part of democracy.[14][19] The Bush Doctrine holds that enemies of United States are using terrorism as a war of ideology against the United States. The responsibility of the United States is to protect itself and its friends by promoting democracy where the terrorists are located so as to undermine the basis for terrorist activities.[14][19]

Influences on the Bush Doctrine

Neoconservatives

The development of the doctrine was influenced by neoconservative ideology,[35][36] and it was considered to be a step from the political realism of the Reagan Doctrine.[35][37] The Reagan Doctrine was considered key to American foreign policy until the end of the Cold War, just before Bill Clinton became president of the United States. The Reagan Doctrine was considered anti-Communist and in opposition to Soviet Union global influence, but later spoke of a peace dividend towards the end of the Cold War with economic benefits of a decrease in defense spending. The Reagan Doctrine was strongly criticized[37][38][39] by the neoconservatives, who also became disgruntled with the outcome of the Gulf War [35] [36] and United States foreign policy under Bill Clinton,[36][40] sparking them to call for

change towards global stability[36][41] through their support for active intervention and the democratic peace theory.[40] Several central persons in the counsel to the George W. Bush administration considered themselves to be neoconservatives or strongly support their foreign policy ideas.[36][42][43][44]

[45][46]

Neoconservatives are widely known to long have supported the overthrow of Saddam Hussein in Iraq, and on January 26, 1998, the PNAC sent a public letter to then-President Bill Clinton stating:

As a result, in the not-too-distant future we will be unable to determine with any reasonable level of confidence whether Iraq does or does not possess such weapons. Such uncertainty will, by itself, have a seriously destabilizing effect on the entire Middle East. It hardly needs to be added that if Saddam does acquire the capability to deliver weapons of mass destruction, as he is almost certain to do if we continue along the present course, the safety of American troops in the region, of our friends and allies like Israel and the moderate Arab states, and a significant portion of the world’s supply of oil will all be put at hazard. As you have rightly declared, Mr. President, the security of the world in the first part of the 21st century will be determined largely by how we handle this threat.

Among the signatories to Project for the New American Century's original statement of Principals is George H. W. Bush’s Vice President Dan Quayle, George W. Bush's defense secretary Donald Rumsfeld, his deputy defense secretary Paul Wolfowitz, his Vice President Dick Cheney, and his brother Jeb Bush.[36]

PNAC member and the chairman of the Defense Policy Board Advisory Committee (DPBAC), Neoconservative Richard Perle, later expressed regret over the Iraq invasion and ultimately put the blame for the invasion on President George W. Bush;.[47]

Other than Bush and Rumsfeld, who are thought to have adopted neoconservative foreign policy thinking include Vice President Dick Cheney and Secretary of State Condoleezza Rice.[48]

The Bush Doctrine, in line with long-standing neoconservative ideas, held that the United States is entangled in a global war of ideas between the western values of freedom on the one hand, and extremism seeking to destroy them on the other; a war of ideology where the United States must take responsibility for security and show leadership in the world by actively seeking out the enemies and also change those countries who are supporting enemies.[14][19][20][49]

The Bush Doctrine, and neoconservative reasoning, held that containment of the enemy as under the Realpolitik of Reagan did not work, and that the enemy of United States must be destroyed pre-emptively before they attack — using all the United States' available means, resources and influences to do so.[14][19][20]

On the book Winning the War on Terror Dr. James Forest, U.S. Military Academy Combating Terrorism Center at West Point, comments: "While the West faces uncertainties in the struggle against militant Islam’s armies of darkness, and while it is true that we do not yet know precisely how it will end, what has become abundantly clear is that the world will succeed in defeating militant Islam because of the West’s flexible, democratic institutions and its all-encompassing ideology of freedom."[20]

Natan SharanskyFurther information: Democratic peace theory

Another part of the intellectual underpinning of the Bush Doctrine was the 2004 book The Case for Democracy, written by Israeli politician and author Natan Sharansky and Israeli Minister of Economic Affairs in the United States Ron Dermer, which Bush has cited as influential in his thinking.[50] The book argues that replacing dictatorships with democratic governments is both morally justified, since it leads to greater freedom for the citizens of such countries, and strategically wise, since democratic countries are more peaceful, and breed less terrorism than dictatorial ones.

Expanding United States influence

Princeton University research fellow Dr. Jonathan Monten, in his 2005 International Security journal article "The Roots of the Bush Doctrine: Power, Nationalism, and Democracy Promotion in U.S. Strategy",[51] attributed the Bush administration's activist democracy promotion to two main factors: the expansion of material capabilities, and the presence of a nationalist domestic ideology. He claims that the Bush Doctrine promotion of democracy abroad was held as vital by the Bush administration to the success of the United States in the "war on terror". It was also a key objective of the administration's grand strategy of expanding the political and economic influence of the United States internationally. He examines two contending approaches to the long-term promotion of democracy: "exemplarism," or leadership by example, and "vindicationism," or the direct application of United States power, including the use of coercive force. Whereas exemplarism largely prevailed in the 20th century, vindicationism has been the preferred approach of the Bush administration.

Criticism and analysis

The Bush Doctrine resulted in criticism and controversy.[25][52] Peter D. Feaver, who worked on the Bush national security strategy as a staff member on the National Security Council, said he has counted as many as seven distinct Bush doctrines. One of the drafters of the National Security Strategy of the United States, which is commonly mistakenly referred to as the "Bush Doctrine," demurred at investing the statement with too much weight. "I actually never thought there was a Bush doctrine," said Philip D. Zelikow, who later served as State Department counselor under Secretary of State Condoleezza Rice. "Indeed, I believe the assertion that there is such a doctrine lends greater coherence to the administration's policies than they deserve." Zbigniew Brzezinski, Jimmy Carter's national security adviser, said he thought there was no "single piece of paper" that represents the Bush doctrine.[53]

And yet there are inspections that indicate such strategies that are concentrated on liberalism and democracy follow the mainstream of American diplomatic traditions. With the adherence to liberal and universal political ideals, evangelism, and perceived obligations to disseminate the norms internationally, the United States historically played its role as an agent of liberal change in international arena.[54]

Experts on geopolitical strategy note that Halford Mackinder's theories in "The Geographical Pivot of History" about the "Heartland" and world resource control are still as valid today as when they were formulated.[55][56][57]

In his 2007 book In the Defense of the Bush Doctrine,[14] Robert G. Kaufman wrote: "No one grasped the logics or implications of this transformation better than Halford Mackinder. His prescient theories, first set forth in Geographical Pivot of History, published in 1904, have rightly shaped American grand strategy since World War II. Mackinder warned that any single power dominating Eurasia, "the World Island", as he called it, would have the potential to dominate the world, including the United States."[58] Kaufman is a political scientist, public policy professor and member of The Shadow Financial Regulatory Committee. He said in an interview about the book: "I wrote this book because of my conviction that the Bush Doctrine has a more compelling logic and historical pedigree than people realize." [16]

The Bush Doctrine was polarizing both domestically and internationally.[59] In 2008, polls showed there was more anti-Americanism than before the Bush administration formed the Bush Doctrine; this increase was probably, at least partially, a result of implementing the Bush doctrine and conservative foreign policy.[60][61]

Foreign interventionismMain article: Foreign policy of the George W. Bush administration

The foreign policy of the Bush Doctrine was subject to controversy both in the United States and internationally.[25][51]

Critics of the policies were suspicious of the increasing willingness of the United States to use military force unilaterally. Some published criticisms include Storer H. Rowley’s June 2002 article in the Chicago Tribune,[62] Anup Shah’s at Globalissues.org,[63] and Nat Parry’s April 2004 article at ConsortiumNews.com.[64]

Robert W. Tucker and David C. Hendrickson argued that it reflects a turn away from international law, and marks the end of American legitimacy in foreign affairs.[65]

Others have stated that it could lead to other states resorting to the production of WMD or terrorist activities.[66] This doctrine is argued to be contrary to the Just War Theory and would constitute a war of aggression.[67][68] Patrick J. Buchanan writes that the 2003 invasion of Iraq has significant similarities to the 1996 neoconservative policy paper A Clean Break: A New Strategy for Securing the Realm.[69]

Political scientist Karen Kwiatkowski in 2007 wrote on her article "Making Sense of the Bush Doctrine":

We are killing terrorists in self-defense and for the good of the world, you see. We are taking over foreign countries, setting them up with our favorite puppets "in charge," controlling their economy, their movements, their dress codes, their defensive projects, and their dreams, solely because we love them, and apparently can’t live without them.[70]

Radical departure

According to Buchanan and others, the Bush Doctrine was a radical departure from former United States foreign policies, and a continuation of the radical ideological roots of neoconservatism.[35][71][72][73]

[74][75]

Initially, support for the United States was high,[75] but by the end of the Bush administration, after seven years of war, anti-Americanism was high and criticism of the Bush Doctrine was widespread;[75]

[76] nonetheless the doctrine still had support among some United States political leaders.[76]

The representation of prominent neoconservatives and their influences on the Bush Doctrine had been highly controversial among the United States public.[37][48][76][77]

Critics, like John Micklethwait in the book The Right Nation, claim that Bush was deceived by neoconservatives into adopting their policies.[48][78][79]

Polarization

Anti-war critics have claimed that the Bush Doctrine was strongly polarizing domestically, had estranged allies of the United States,[70] and belied Bush's stated desire to be a "uniter, not a divider".[59]

Compassionate belief and religious influence

Bush often talked about his belief in compassionate conservatism [80] [81] and liberty as "God's gift".[34] In his Claremont Institute article Democracy and the Bush Doctrine,[74] Charles R. Kesler wrote, "As he begins his second term, the president and his advisors must take a hard, second look at the Bush Doctrine. In many respects, it is the export version of compassionate conservatism."

Sociopsychological strategy and effects

There is also criticism on the Bush Doctrine practices related to their sociopsychological effects saying they create a culture of fear.[82][83][84][85]

Author Naomi Klein wrote in her book The Shock Doctrine about a recurrent metaphor of shock, and claimed in an interview that the Bush administration has continued to exploit a "window of opportunity that opens up in a state of shock", followed by a comforting rationale for the public, as a form of social control.[86]

Democratization

Some commentators argue that the Bush Doctrine has not aimed to support genuine democratic regimes driven by local peoples, but rather US-friendly regimes installed by diplomats acting on behalf of the United States, and intended only to seem democratic to U.S. voters.[87] For example, in the case of Afghanistan, it is argued that parliamentary democracy was downplayed by the US and power concentrated in the hands of the Afghan president Hamid Karzai, a U.S. ally.[88] The election of Karzai has been described as the result of manipulation on the parts of the U.S. government and U.S. policy maker Zalmay Khalilzad. At the same time, these commentators draw attention to the number of unpopular (but U.S.-friendly) warlords achieving "legitimating" positions under U.S. supervision of the elections. Some commentators interpreted voter turnout figures as evidence of "large-scale fraud".[89] Sonali Kolhatkar and James Ingalls have written, "It remains to be seen if U.S. policy makers will ever allow anything approaching democracy to break out in Afghanistan and interfere with their plans."[90]

Of the elections in Afghanistan, Sima Samar, former Afghan Minister for Women's Affairs, stated, "This is not a democracy, it is a rubber stamp. Everything has already been decided by the powerful ones."[91]

Most studies of American intervention have been pessimistic about the history of the United States exporting democracy. John A. Tures examined 228 cases of American intervention from 1973 to 2005, using Freedom House data.[92] A plurality of interventions, 96, caused no change in the country's democracy. In 69 instances the country became less democratic after the intervention. In the remaining 63 cases, a country became more democratic

Introduction

In the first year of his administration, President Obama must decide whether to continue the

Bush administration’s doctrine of preemption in countering threats posed by terrorist groups and rogue

states. This essay outlines the law of self-defense, anticipatory self-defense and the legal arguments for

and against preemption under the Bush doctrine of preemption. It concludes by recommending

President Obama discard the unilateral use of preemptive force and instead rely on preemption only in

those instances where the Security Council authorizes the use of force pursuant to Chapter VII of the

Charter of the United Nations.

The Bush Doctrine of Preemption

On June 1, 2002, President Bush announced the “Bush Doctrine” of preemptive self-defense in

his commencement address to cadets at West Point.1 The President declared:

The war on terror will not be won on the defensive…We must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge…If we wait for threats to fully materialize, we will have waited too long…[O]ur security will require

1 President George W. Bush, Graduation Speech at West Point, (June 1, 2002), available at: http://georgewbush-whitehouse.archives.gov/news/releases/2002/06/20020601-3.html.

all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.2

In September, 2002, the administration clarified its doctrine of preemption in the National

Security Strategy, stating:

The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. 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. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.3

The 2002 National Security Strategy and the speech at West Point thus laid the theoretical

foundation for the Bush doctrine of preemption. This doctrine, however, raises the question of whether

the preemptive use of force against a non-imminent threat, such as undiscovered weapons of mass

destruction, is lawful. To understand the legal issues surrounding the doctrine of preemption, it is first

necessary to review the law of self-defense and anticipatory self-defense.

Self-Defense

Article 2(4) of the U.N. Charter prohibits the threat or use of force against any state except in

self-defense under Article 51 or pursuant to a Security Council resolution issued under Chapter VII of

the U.N. Charter.4 Article 51 of the Charter preserves the State’s “inherent right of individual or

collective self-defense” in response to an armed attack.5 Chapter VII of the Charter authorizes the

Security Council to impose economic sanctions, sever diplomatic ties and use military force to

maintain or restore international peace and security.6 In the 1986 Nicaragua Case, the International

Court of Justice reaffirmed the right to use force in individual and collective self-defense.7 Following

the attacks of September 11, 2001, the Security Council re-affirmed the right to self-defense without

broadening the scope of Article 51 to include preemptive attacks.8 2 Id.

3 The White House, The National Security Strategy of the United States 15-16 (Sep. 2002) available at: http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/nss.pdf [hereinafter

“N.S.S.”].

4 Charter of the United Nations, June 26, 1946 arts. 2(4), 40, 41, 42, 51, 1 U.N.T.S. xvi [hereinafter “U.N. Charter”].

5 Id., art. 51.

6 Id., arts. 41, 42.

7 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J. 14, at para. 193 (June 27) [hereinafter “Nicaragua v. U.S.”] (noting individual or collective

self-defense is lawful exception to the prohibition of force under Article 51 of the Charter and as a matter of customary international law).

8 See S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sep. 12, 2001) (condemning terrorist acts of 11 September 2001 and affirming U.S. right to self-defense); S.C. Res. 1373, S/RES/1373 (Sep. 28,

2001) (“reaffirming the inherent right of individual or collective self-defense as recognized by the Charter of the United Nations as reiterated in resolution 1368”).

Anticipatory Self-Defense

The principle of anticipatory self-defense permits a State to use force in anticipation of a

proximate and imminent threat.9 O’Connell distinguishes anticipatory self-defense from the Bush

doctrine of preemptive self defense, characterizing the former as “a narrower doctrine that would

authorize armed responses to attacks that are on the brink of launch” and the latter as the use of force

“to quell any possibility of future attack by another State, even where there is no reason to believe that

an attack is planned and where no prior attack has occurred.”10 The right of anticipatory self-defense is

historically supported by state practice and by some jurists; however, since the adoption of the U.N.

Charter, the right is now constrained by Articles 2(4), 51 and Chapter VII.11

The rule of anticipatory self-defense was most artfully described in an exchange of letters

between U.S. secretary of state Daniel Webster and Britain's Lord Ashburton over the Caroline

Incident.12 In 1837, the private U.S. ship Caroline was destroyed by British forces after it was found to

be aiding Canadian rebels fighting the Crown.13 In a diplomatic note sent to the British Ambassador in

Washington, D.C. protesting the attack, Webster wrote that anticipatory self-defense may be invoked

only where the threat is imminent, proximate, and the use of force is necessary and proportional.14

The right of anticipatory self-defense was upheld by the Tokyo Military Tribunal in ruling that a

declaration of war by the Netherlands against Japan in December 1941 in response to Japan’s stated

intent to seize Dutch territories was a lawful recourse to anticipatory self-defense despite the absence of

an armed attack on Dutch territory.15 Since the adoption of the U.N. Charter in 1946, however, there

have been few examples of lawful recourse to anticipatory self-defense. For example, Israel claimed its

1981 air strike on an Iraqi nuclear reactor was an act of anticipatory self-defense in response to a

nuclear threat; however, the Security Council “Strongly condemn[ed] the military attack by Israel in

9 See YORAM DINSTEIN, WAR AGGRESSION, AND SELF-DEFENSE 168 (3d ed. 2001) (same); PETER MALANCZUK, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW 314

(Routledge, 7th rev. ed., 1997) (discussing anticipatory self-defense); DEREK W BOWETT, SELF-DEFENSE IN INTERNATIONAL LAW (1958) 31, 58, 256, 269 (same); PHILIP C JESSUP, A MODERN

LAW OF NATIONS 167 (1956) (same); IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 275 (1963) (same).

10 Mary Ellen O’Connell, The Myth of Preemptive Self-Defense, THE AMERICAN SOCIETY OF INTERNATIONAL LAW TASK FORCE ON TERRORISM, August 2002, at 2, note 10.

11 See, e.g., O’Connell, supra not 10; Malanczuk, supra note 9, at 314; Bowett, supra note 9, at 31, 58, 256, 269; Jessup, supra note 9, at 167; Stone, supra note 9, at 244; Brownlie, supra note

9, at 257.

12 The Caroline Incident, 29 British and Foreign State Papers 1129 (1837).

13 Id.

14 Id.

15 See Malanczuk, supra note 9, at 314.

clear violation of the Charter of the United Nations and the norms of international conduct.”16 South

Africa was also denounced by U.N. member states before the Security Council for its claimed right to

launch anticipatory attacks against Angola in 1985.17

In the Nicaragua Case the I.C.J. declined to consider the legality of preemptive self-defense,

noting that “the lawfulness of a response to an imminent threat of armed force has not been raised.” 18

In 2004, however, legal opinion within the U.N. began to shift when a report issued by a high-level

panel on the legality of the preventive use of force noted that anticipatory self-defense would be lawful

under Article 51 and Chapter VII of the Charter so long as the threat was imminent and the force was

proportional.19

Bush Doctrine of Preemption

The Bush Doctrine of preemption expands the concept of anticipatory self-defense by relaxing

the imminence requirement where the potential threat is posed by a “rogue state” or terrorist group.20

Proponents of the Bush Doctrine argue that the threat posed by terrorists and rogue states armed with

weapons of mass destruction is so great that States cannot stand idly by until an attack occurs.21 State

Department Legal Advisor for the Bush administration William H. Taft IV writes that “The United

States has long held that … a state may use force in self-defense…if an armed attack is legitimately

16 S.C. Res. 487, U.N. Doc. S/Res/487 (June 19, 1981); G.A. Res. 36/27 (109-2-34) (Nov. 13, 1981) (“strongly condemn[ing] Israel for its premeditated and unprecedented act of aggression

[against Iraq] in violation of the Charter of the United Nations, and the norms of international conduct, which constitute a new and dangerous escalation in the threat to international peace and

security”); see also Christine Gray, International Law and the Use of Force, 130 (2004) (discussing Israeli attack on Iraq and U.N. reaction).

17 See Security Council Official Records, 40th Year: 2616th Meeting, October 7, 1985, New York, U.N. Doc. S/PV.2616 (Oct. 7, 1985) (recording condemnation of South Africa by member

states before the Security Council); Gray, supra note 16, at 132 (discussing South Africa’s use of anticipatory self-defense against Angola).

18 Nicaragua v. U.S. at para.194.

19 A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY, REPORT OF THE HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE paras. 188, 193, U.N. Doc. A/59/565 (Dec. 12,

2004), available at: http://www.un.org/secureworld/report.pdf (hereinafter “A MORE SECURE WORLD”). The report states that

“[A] threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate. The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons -making capability…In the case of a State posing a threat to other States, people outside its borders or to international order more generally, the language of Chapter VII is inherently broad enough, and has been interpreted broadly enough, to allow the Security Council to approve any coercive act ion at all, including military action, against a State when it deems this “necessary to maintain or restore international peace and security”. That is the case whether the threat is occurring now, in the imminent future or more distant future; whether it involves the State’s own actions or those of non-State actors it harbours or supports; or whether it takes the form of an act or omission, an actual or potential act of violence or simply a challenge to the Council’s authority.”

Id. at paras. 188, 193.

20 N.S.S., supra note 3, at 15. The N.S.S. states:

“It has taken almost a decade for us to comprehend the true nature of this new threat. Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive [defensive] posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option… The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. 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. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively… the United States cannot remain idle while dangers gather.”

Id.

21 See, Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 VILL. L. REV. 699, 715-20 (2005) (outlining positions of various schools of thought on self-defense, including proponents

of preemption); Michael J. Glennon, Preempting Terrorism: The Case for Anticipatory Self-Defense, WKLY. STANDARD, Jan. 28, 2002, at 24 (arguing in favor of preemption).

deemed to be imminent.”22 Taft cites the Caroline Incident, noting Webster’s assertion that, “the extent

of [the right of self-defense] is a question to be judged by the circumstances of each particular case.”

According to Taft, those circumstances arise where terrorists and rogue states hold or seek to acquire

weapons of mass destruction, thereby requiring an expansion of the imminence requirement to preempt

terrorists before they strike.23 Taft notes, however, that the preemptive use of force is tempered by the

Caroline’s requirements of “a credible, imminent threat and the exhaustion of peaceful remedies.”24

While maintaining preemption is permissible, Taft offers the 1981 Israeli strike on Iraq as an example

of unlawful preemption because Israel had neither exhausted all peaceful remedies nor had established

the threat as imminent.25

Critics of the preemption doctrine note that it is “a morally fraught matter, as by definition the

aggressor has not been harmed, and his judgment about the necessity of his action might well be called

into question both by the victim and the neutral observer.”26 Critics emphasize that Article 51

authorizes the right to use force in self-defense only “if an armed attack occurs” and not if a threat of

armed attack occurs, let alone a distant threat as allowed for under the doctrine of preemption.27

Critics also point to the dearth of state practice in relying on preemption as justification for the use of

force, even where the attack appears to be preemptive.28 Examples of such “non-preemptive” situations

include: the U.S. claim that the downing of Iran Airbus flight 655 was an act of self-defense to a

perceived armed attack by Iran;29 the U.S. reliance on the “material breach” of Security Council

22 William H Taft IV, The Legal Basis for Preemption, Council on Foreign Relations Memorandum (2002), available at: http://www.cfr.org/publication/5250/legal_basis_for_preemption.html.

23 William H Taft IV, ‘Preemptive Action in Self-Defense’ (2004) 98 AMERICAN SOCIETY OF INTERNATIONAL LAW PROCEEDINGS 331, 332.

24 Id.

25 Id.

26 Antony Anghie, The War on Terror and Iraq in Historical Perspective, 43 OSGOODE HALL L. J. 45, 48 (2005) (quoting Richard Tuck, The Rights of War and Peace: Political Thought and

the International Order From Grotius to Kant (New York, 1999)).

27 See, U.N. Charter, art 51; Murphy, supra note 21, at 706-11 (outlining positions of various schools of thought on self-defense, including “strict constructionists” of the U.N. Charter).

28 Christine Gray, supra note 16, at 130 (2004).

29 See Gray, supra note 16, at 131 (citing S.C. 2818th meeting (14 July 1988); S/19989 U.S. justification and Article 51 report, 1988 U.N.Y.B. 199; I.C.J. pleadings, Aerial Incident Case, vol.

II) (discussing U.S. defenses in Aerial Incident Case).

Resolution 1441 as legal justification to invade Iraq;30 and Israel’s claim of self-defense against Egypt’s

naval blockade of the Straits of Tiran as pre-text to the 6-Day War.31

Despite the persuasive arguments by distinguished jurists such as Mr. Taft, it is clear that State

practice, opinio juris and many scholars do not support the notion that customary law permits the

unilateral use of preemptive force against a threat which is neither imminent nor proximate. However,

it should be noted that a high-level U.N. panel concluded a state may use preemptive force pursuant to

Chapter VII of the U.N. Charter if it can be shown that the threat, however remote, poses a threat to

international peace and security and the Security Council authorizes such use of force.32 Thus, while

the unilateral use of preemptive force would be unlawful, the use of force duly authorized by the

Security Council under Chapter VII of the Charter would be consistent with international law.33

Conclusion

In a speech on February 7, 2009, Vice President Joseph Biden told a meeting of international

leaders and security experts in Munich that the U.S. would “strive to act preventively” while retaining

the right to use military power “to stop crises from occurring before they are in front of us.”34 Whether

the new administration will rely on the Bush doctrine to unilaterally use force to stop such crises before

they begin, or follow the lawful procedures of the U.N. Charter, remains to be seen. International law

clearly calls for the latter, and thus President Obama should resort to preemptive military force to

counter a remote threat only after first receiving Security Council authorization under Chapter VII of

the Charter. By relying on Chapter VII, President Obama can defeat distant threats, preserve the

international system of collective security and maintain America’s obligations under international law.

30 See Gray, supra note 16, at 131; see also, William H. Taft IV, Todd F. Buchwald, Preemption, Iraq, and International Law, 97 AM. J. INT'L L. 557, July 2003 (characterizing 2003 invasion

of Iraq as “the final episode in a conflict initiated more than a dozen years earlier by Iraq's invasion of Kuwait”); Sean Murphy, Assessing the Legality of Invading Iraq, 92 GEO. L. J. 173

(2004) (discussing U.S. assertion that Iraq’s violation of obligations under Security Council Resolutions 678, 687 and 1441 “reviv[ed]” prior U.N. authorization of force). Cf. John Yoo,

International Law and the War in Iraq, 97 AM. J. INT’L. L. 563 (2003) (“First, the Security Council authorized military action against Iraq to implement the terms of the cease-fire that

suspended the hostilities of the 1991 Gulf war…Second, international law permitted the use of force against Iraq in anticipatory self-defense because of the threat posed by an Iraq armed with

WMD and in potential cooperation with international terrorist organizations.”).

31 See Gray, supra note 16, at 130-31 (noting Israel did not rely on preemption, but rather claimed self-defense in response to Egypt’s naval blockade of the Straits of Tiran).

32 A MORE SECURE WORLD, supra note 19, at 63.

33 Id.

34 Remarks by Vice President Biden at 45th Munich Conference on Security Policy, The White House, Office of the Vice President, Feb. 7, 2009 available at:

http://www.whitehouse.gov/the_press_office/RemarksbyVicePresidentBidenat45thMunichConferenceonSecurityPolicy/.

MEMORANDUM

To: Members of the CFR/ASIL Roundtable on Old Rules/New Threats

From: Ivo Daalder

Subject: Policy implications of the Bush Doctrine on Preemption

We live a world in which terrorists and tyrants may join forces to develop and use technologies of mass destruction to inflict grievous harm against the United States and its friends, allies and interests anywhere around the globe with not even a moment’s notice. How should our government respond to this new threat? In its National Security Strategy released last September, the Bush administration answers by promulgating a radically new doctrine of military preemption. “If the United States could have preempted 9/11, we would have, no question,” Vice President Dick Cheney told the annual convention of the Veterans of Foreign Wars in Nashville this summer. “Should we be able to prevent another, much more devastating attack, we will, no question. This nation will not live at the mercy of terrorists or terror regimes.”

Given the havoc a terrorist attack using nuclear or other weapons of mass destruction would surely inflict, preempting such an attack is unquestionably desirable. And the United States, like many other countries, has always left open the possibility of using military force preemptively. It is, as Secretary of State Colin Powell has frequently stated, long been a very useful tool to have in America’s foreign policy toolbag. But maintaining the option of preemption is very different from promulgating a new doctrine, for this implies that preemption is not just a foreign policy tool, available for the rare circumstance in which its use might prove necessary, but a policy preference for dealing with threats of this kind. If that is the administration’s intent — and its promulgation in the National Security Strategy surely implies it is — then it is incumbent on the administration to spell out in some detail when preemptive military action is justified and, especially, who is justified in taking such action. This it has not done. As a result, the promulgation of the new doctrine leaves unaddressed profound questions of policy that its advocates have so far ignored.

The Administration’s Case for Preemption

The National Security Strategy puts the case for preemption thus: “Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first.” This case rests on three propositions.

• First, with the diffusion of advanced technologies, tyrants are acquiring weapons of mass destruction at a perilously rapid rate and, with their help, so will terrorist groups like Al Qaeda. Traditional preventive measures — like diplomacy, multilateral nonproliferation treaties and export controls — may delay but cannot prevent the spread of these weapons into these unsavory hands.

• Second, tyrants and especially terrorists view mass destruction technologies as weapons of choice rather than as weapons of last resort. They are much more risk-prone than our cold war adversaries, and much less likely to care about the consequences of their actions for the lives of those who support or live among them.

• Third, the old, reactive strategies of containment and deterrence are therefore less likely to succeed. And since the risks and consequences of deterrence failing are great, the alternative of preemption is, for all the dangers of such a strategy entails, to be much preferred.

The legal justification for this doctrine resides in the concept of anticipatory self-defense — that is, the notion, long recognized in international law, that states can take defensive action even before an attack has occurred if the threat is truly imminent (traditionally when an opposing force mobilizes in anticipation of an attack). The classic example is Israel’s preemptive attack that started the 1967 war, which came in response to the imminent threat of invasion by its Arab neighbors. What makes the current situation different from previous instances is the need, as the Bush administration sees it, to “adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries” — i.e., terrorists and tyrants armed with mass destruction weapons. Since it cannot be known when a state or terrorist organization that possesses weapons of mass destruction will use them and since weapons like these can be delivered without much if any warning, the administration argues that rogue states pose an “imminent threat” when they seek to acquire technologies necessary to build these weapons, and especially nuclear weapons. Accordingly, preemption is justified not just to prevent the use of weapons of mass destruction but also their acquisition.

The Case Against Preemption

The promulgation of this new doctrine has been met with concern at home and especially abroad — and not without reason. The doctrine suffers from considerable conceptual confusion, most importantly by conflating the notion of prevention with that of preemption. Preventive war refers to a premeditated attack of one state against another, which is not provoked by any aggressive action of the state being attacked against the state initiating the conflict. In contrast, a preemptive attack is launched only after the state being attacked has either initiated or has given a clear indication that it will initiate an attack. A war against Iraq that is justified by the belief that Baghdad will soon acquire nuclear weapons which it then may use to threaten the interests of others would be a preventive war; an attack against an Al Qaeda cell believed to be plotting a terrorist strike would be a preemptive strike. While the latter can readily be justified on the basis of self-defense, preventive war, especially if launched by a single state on its own accord, cannot. And every time when our nations leaders confronted the question of launching a war to an adversary from acquiring nuclear weapons — whether against the Soviet Union in the late 1940s, against Cuba in 1962, or against China in 1964 — they decided against it.

The doctrine of preemption is also strategically imprudent. If taken seriously by others, it will exacerbate the security dilemma among hostile states, by raising the incentive of all states to initiate military action before others do. The result is to undermine whatever stability might exist in a military standoff. Take the very real case of India and Pakistan, both nuclear powers with long-standing territorial and other grievances. Suppose tensions rise, as they did last summer, when a million Indian and Pakistani troops massed on the border. Islamabad, fearing that Delhi might try to preempt its quite vulnerable nuclear strike capability, will have a powerful incentive to go first. India, knowing this to be the case, will have an equally powerful incentive to get its weapons off before Pakistan does. Given this dynamic, the use of force in tense situations like these will increasingly be viewed as a first resort, thus undermining whatever moderating influence diplomatic intervention might otherwise have had.

The case of India and Pakistan points to another grave danger of publicly promulgating a doctrine of preemption, which is that other states will invariably embrace arguments in its favor as a cover for settling their own national security scores — as Russia has already done with respect to Georgia. As Henry Kissinger has argued, “It cannot be either in the American national interest or the world’s interest to develop principles that grant every nation an unfettered right of preemption against its own definition of threats to its security.” The Bush administration recognizes this problem, and warns other countries not to “use preemption as a pretext for aggression.” But that is easier said than done. The administration, while arrogating to itself the right to use force whenever and wherever it believes the preemption of potential future threats warrants it, has made no effort to define the line separating justifiable preemption from unlawful aggression. And that may well be the gravest flaw of the new doctrine. For by presuming that the concept of self-defense now includes preemption (as broadly defined), the administration has erased any viable distinction between the offensive and defensive

purposes of military action. Yet, the legitimacy of using force depends crucially on a clear and agreed understanding of precisely this distinction.

Whatever the merits and demerits of a preemption doctrine, there are practical problems with relying on such a policy for dealing with the current threat in all but the most extreme situations. One is the difficulty determining the timing of any preemptive strike, especially if the goal is to preempt the acquisition of mass destruction weapons. Is construction of a nuclear plant sufficient reason (as Israel believed to be the case in 1981 when it attacked the Osirak reactor) or should one wait till fissile material production is actually underway? And what about chemical and biological weapons facilities? Are pharmaceutical or fertilizer factories game (as the former was in 1998, when the U.S. struck a facility in Sudan)? If so, how can one distinguish between concerns that produce legitimate products and those that do not — and what of dual-use facilities?

Another practical difficulty is that the target state can respond in ways that make preemption very costly — and perhaps even counterproductive — in ways that advocates of the strategy have largely ignored. Take, for example, a preventive war against Iraq. This could very well precipitate the very use of weapons of mass destruction by Baghdad that the military action is designed to forestall. Saddam would have every incentive to use what he has before U.S. forces can find and destroy the weapons. Moreover, as the CIA has recognized, once Saddam deems war inevitable any constraints on him transferring weapons to terrorist groups eager to strike the United States and its interests will be lifted. And in the chaos that attends any war control over weapons and materials is bound to break down, making it that much more likely that these fall into the wrong hands. Or take the case of North Korea, where it might be possible to launch a precision strike against Pyongyang’s critical nuclear facilities. But even if successful, the consequences could be severe — including the not unlikely decision by North Korea’s leaders to launch a suicidal war that would kill millions of Koreans in the process.

A Short-Lived Doctrine?

Preemption sounds better in theory than it is likely to be in practice. There is no doubt that the United States must maintain the capacity to engage in the preemptive use of force. There may well be circumstances in the future in which doing so is both justified and strategically sound. But maintaining the option to preempt is one thing, codifying it as presidential doctrine is quite another. Interestingly enough, many in the Bush administration seem to have come to the same realization. At least when it comes to dealing with rogue states, preemption seems to have lost its luster. With respect to Iraq, the administration has abandoned its preemption rhetoric and now makes the case for the possible use of force on the need for Iraq to comply with its disarmament obligations. In the case of North Korea, which just last month confirmed that it had an active nuclear weapons program in direct violation of its international commitments, the administration has dismissed any talk of military action — preemptive or otherwise.

What we are left with is an argument for preempting terrorists, whether armed with weapons of mass destruction or not. But this is neither controversial nor anything new. Law enforcement and intelligence activities have long aimed to preempt terrorists before they strike. The previous administration issued standing orders to locate, target, and kill Osama bin Laden — and no one would have objected if it had succeeded. Instead of disputing preemption as means to deal with terrorism, the U.S. debate has always about whether we are doing enough to stop terrorists preemptively.

All of this suggests that the Bush administration was unwise to elevate what can be a crucial tool for securing American interests into a doctrine that bears the president’s name. It is now too late for the administration to disavow the Bush doctrine — but the less said about it by the president and his advisers that better off we will be.

Preemption, Israeli style

The muted reaction to a recent attack on Syria may give new life to the Bush doctrine.Last month, one of the more mysterious episodes in the history of the Arab-Israel conflict began to leak slowly into the news. Although the facts are still unconfirmed, what seems to have happened has major implications not only for the region but even more for the laws of war and preemption that President Bush has been trying to redefine ever since his 2002 national security strategy paper.

First, Syrian spokesmen complained that Israeli planes had violated their country's airspace on Sept. 6 -- and had been driven off, or so they said. Within a few days came stories -- mostly from anonymous sources -- that the planes had fired into Syria; these were followed by still other stories that a target had in fact been hit. But what was it?

After further journalistic digging, the most plausible accounts said that the Syrian targets were related to nuclear weapons activity and may even have been manned by North Koreans. Later reports suggest some dispute within the U.S. government about how far Syria had progressed in achieving its nuclear ambitions, but these same reports confirm that this is what Israel was targeting.

The obscurity of this episode results in part from uncharacteristically tight lips in Jerusalem and Damascus. But that is not the whole of the reason. There has also been a deafening silence from the international community and especially from the other states of the region. This highly unusual reaction is one of the oddest parts of the whole episode and, in some ways, the most meaningful.

Ordinarily, the Arab states in the region are quick to condemn any warlike act by Israel, even measures as defensive as building a barrier against terrorists. Although many Arab states are unhappy these days with Syria's budding alliance with Iran, Israel is still, to one degree or another, the enemy, and Syria is, at worst, a wayward brother. So why were the Arab states suddenly mum about this invasion of Syria's sovereignty?

Their reticence -- and that of the rest of the international community, including the United States and Western Europe -- suggests, I think, that even though most governments believed that this was indeed a blow against Syrian nuclear ambitions, none of them, frankly, were displeased to see it happen. The fact is that virtually every government in the world, regardless of its feelings about Israel, recognizes that a Syrian nuclear weapons program would make the Middle East and the world more dangerous. True, Israel already has such weapons, to the dismay of many others, especially its neighbors. But few see a Syrian nuclear arsenal as an antidote.

Syria has a history of belligerence. Apart from initiating war against Israel in 1948 and 1973, and helping provoke it in 1967, it has also occupied Lebanon, and it threatened to invade Jordan during "Black September" of 1970 until deterred by U.S. and Israeli counteraction. It also helps arm Hezbollah and succors other violent groups.

Even a more sympathetic interpretation of Syria's past actions would not diminish the terrifying prospect of a nuclear rivalry in the region. Just this summer, rumblings of a possible war had military leaders on edge in Damascus and Jerusalem. Replay that scenario with both sides armed with nuclear weapons, and it becomes far scarier still.

Between these two small, contiguous states, there would be little room for a "second strike" doctrine of the kind that deterred war between the superpowers for five decades. In a crisis, each side's strategists would have to weigh carefully the advantages of striking first and wonder whether the other was thinking the same thing.

In addition, a Syrian nuclear program would stimulate wider proliferation. The prospect of an Iranian bomb has stirred new interest in nuclear programs in Egypt, Saudi Arabia, Turkey and other nearby states. Were Syria to head in the same direction, the impetus to avoid being left behind would be intense.

What does all this have to do with Bush's preemption doctrine? Although the president's stand evoked more criticism than support, part of it was hard to gainsay. The right of self-defense has always been

understood to include the possibility of preemptive self-defense. Hugo Grotius, the 17th century Dutch philosopher who laid the foundations for international law, wrote that "it be lawful to kill him who is preparing to kill," although he also acknowledged that this principle could be dangerous.

Bush's claim was that whereas "preparing to kill" once entailed mobilizing armies that could be spotted by the potential victim, today's technology makes possible a devastating blow without any visible prelude. Hence, he argued, preemption had to be understood more broadly. In non-legalese, he put it: "We will not allow the world's most dangerous regimes to threaten us with the world's most dangerous weapons."

Critics argued that Bush was advocating not preemption but "preventive war." They said that using force to deny another state the capability to attack you was far different from using force to thwart an imminent attack. They asked what would be the limits of such a right, and to this Bush had no ready answer.

On the other hand, the critics had no answer to Bush's point that modern technology created a new danger of a devastating surprise attack against which states would reasonably want some defense. The U.N.'s High-Level Panel on Threats, Challenges and Change acknowledged the force of the argument that "the potential harm from some threats (e.g., terrorists armed with a nuclear weapon) is so great that one simply cannot risk waiting until they become imminent." However, it said that in such cases, the party feeling threatened should bring its concern before the Security Council.

But given the United Nations' bias against Israel, it is hard to counsel Jerusalem to trust the Security Council. Indeed, given the council's historic impotence, few states would be likely to rely on it if they believed their safety was at stake.

The dilemma of preemption that first troubled Grotius has grown more acute with time. Israel was condemned by the Security Council in 1981 for bombing Osirik to abort Iraq's nuclear program, but when Saddam Hussein launched wars against Iran and Kuwait, many governments were pleased in retrospect that Israeli had pulled some of his fangs.

This latest episode suggests that an intense rethinking is underway in many capitals. Take away the nuclear issue and imagine a report that Israeli warplanes had flown over Syria, unprovoked, and had bombed ordinary military targets. The Arab states would have been up in arms, seconded by the other Muslim and "nonaligned" states and even Europe. The United States in all likelihood would have chastised Israel more gently and would probably have abstained, rather than vetoing a Security Council condemnation of Israel.

But instead, Israel received only pro forma rebukes -- apparently because it had blocked a weapon that no one wanted Damascus to have.

Law is largely a matter of practice and custom, and it is gradually changing to accommodate new realms of self-defense. Had American forces found nuclear weapons in Iraq, or a nuclear program nearly ready to produce weapons, the international assessment of our decision to invade would be very different today. That we made an appalling mistake about Iraqi WMD shows the risks of the new doctrine that Bush proposes -- but it does not diminish the issue that gave rise to that doctrine.

The evolution of our thinking about these issues will be at the forefront of the debate as Washington moves closer to a preemptive (or "preventive") strike against Iran's nuclear program.

Joshua Muravchik is a resident scholar at the American Enterprise Institute.

Israel’s new security doctrine abuses missile defense

Gideon Israel, who is currently finishing an MA degree in international relations at Bar Ilan University, worked for ambassadors and government ministers in Israel and authored a comprehensive policy paper on reforming US aid to Israel

More in this blog Understanding Obama’s Support for Israel

On Monday the defense ministry proudly announced that the IDF had successfully completed testing an improved version of Iron Dome which will be able to intercept medium range missiles carried by Hezbollah and Syria that can reach the center of the country. At first glance, this is a reason for celebration; but on the second thought, there is nothing to celebrate about. Why not?

Six months ago, as southern Israel was bombarded with more than 200 rockets from Gaza during a period of a few days, and Iron Dome was used at least 56 times, IDF Chief of General Staff Benny Gantz proclaimed, “Quiet will be met with quiet.” Next the Prime Minister chimes in: “Quiet will bring quiet.” In other words, stop attacking us and we won’t bother you, as if that round of rockets was an exception.

This seemingly tactical approach to the Gaza problem is the result of a very clear defense doctrine that has overtaken our military and political leadership and a large part of our nation’s citizenry: Our refusal to root out and deter our enemies. This is exemplified by our conduct of the Second Lebanon War and Operation Cast Lead. Even more so, it is demonstrated by the terrible sin of the nation of Israel forsaking the 20,000 citizens of Sderot to be bombed for ten years. Over 10,000 missiles have been lobbed into the South and no end in sight.

This new defense doctrine rejects preemption as a means of disabling our enemies’ capabilities. The purpose of military action has changed, from victory to “sending a message.” Punitive military activity is now authorized by our leadership provided, as everyone who lives in the south knows and as everyone in the north may soon find out, it provides no real deterrence. Never to such an extent have we, as a matter of policy, tolerated the terrorizing of our fellow citizens, and indeed of the entire country.

In Gaza and in Lebanon, our enemies continue to arm and continue to state their intentions toward Israel with complete clarity: our total destruction. Their growing military sophistication provides significant building blocks for the success of their genocidal objective.

Iron Dome, the Arrow missile and David’s Sling also play into this terrible change in our security doctrine. Put differently, our current military and political leadership embraces and abuses these remarkable systems for the sake of our non-preemptive, non-deterring security strategy.

Everybody knows that none of these systems prevents the traumatizing disruption of daily life – the government continues to pay millions for houses, schools and other public buildings in the south to be fortified. Moreover, our enemies know that all of these systems can be overwhelmed by the launching of large volleys of missiles. Worse, each missile fired at us is a test, lessons are learned, and the capabilities of our enemies are enhanced. Furthermore, in times of war, Iron Dome must be devoted to protected military assets, not civilians.

While Israeli missile defense systems represent marvelous scientific achievements, has their development fueled Israel’s new, dangerous security doctrine?

Consider the Iron Dome. It signifies an unwillingness to use deterrence in confronting hostile threats sitting on Israel’s border, threats for which our country has overwhelming capability to reduce and minimize, if not eliminate.

Some argue that Iron Dome gives the political echelon more flexibility – shooting down missiles as opposed to escalation. In reality, it is nothing more than an expression of Israel’s willingness to accept permanent missile threats on its borders. Still, nothing happens in isolation. By leaving the Philadelphia corridor wide open, we’ve enabled Hamas’ growing capabilities. For example, our brave pilots now

have the added burden and limitation of worrying about SA-7s, the Russian version of the Stinger missile.

Iron Dome is an expensive system. If procured more widely, it will be at the expense of other sorely needed systems, training and supplies. Not only that, but each missile is very expensive (at least $50,000) such that our enemies can drain our defense budget by forcing us to use the system in excess. Our military leadership’s assertion that these systems will help keep the peace and protect Israel is nothing less than a fundamental change in the will of the IDF to preempt our enemies.

Another facet of our changed military doctrine is a permanent American military presence in Israel. The American X-Band radar system – stationed in the Negev with the ability to give an extra sixty seconds warning time on incoming long-range rockets – has US personnel stationed on Israeli soil manning the radar. This is a giant step in Israel outsourcing its defense. X-Band may give Israel extra seconds in detecting an incoming missile from, say, Iran, yet the cost of this is complete American monitoring of Israeli skies. Only 15 years ago, IAF Commander Herzl Bodinger refused to participate in joint air exercises with the US so as not to expose valuable training methods that could be leaked to enemy air forces. Now the US is monitoring Israeli airspace, unencumbered, at Israel’s invitation.

Iron Dome has corroded Israel’s security by helping to shift its military doctrine from preemption and deterrence to defense and wait-and-see. “Quiet will be met with quiet.” Of course, one cannot blame the technology for human decisions. It is the nation’s political and military leadership that have abandoned Israel’s formerly offensive security strategy and replaced it with bunker Israel. Being a democracy, perhaps this shift represents a change in the attitude of a plurality of our citizenry.

Hamas and Hezbollah continue to develop and expand offensive rocket capability – targeting accuracy, warhead size, warhead type, range and – significantly – quantity. But instead of destroying these capabilities before they are employed against us, systems like the Iron Dome have helped some lose site of the forest through the trees.

Hamas and Hezbollah are forward brigades of the Iranian army. Should conflict arise between Israel and Iran, they will unleash their missiles fully for the purpose of suppressing our military’s air and ground activity. They can and will successfully target air bases, airports, transportation hubs, ports, power stations and anything else needed to paralyze our nation and disrupt our war effort. In the second Lebanon war, one million of us were driven underground or fled south. In the next war, which will surely come one way or another, all of us will be in bomb shelters, with nowhere to flee. We shall pay dearly for the defense doctrine that has fostered the creation of this threat from Lebanon and Gaza.

Iron Dome keeps the heat off the politicians to confront the challenge of Hamas’ growing arsenal. The conceptual support missile defense receives from the IDF and the political leadership is a symptom of Israel’s ill national security posture.

The Americans, on the other hand, embrace these defensive missile systems and are more than willing to fund them. It suggests that Israel need not strike to defend itself. Israel seems to be doing its best to fulfill this coercive and wishful thinking.

Incredible dedication, scientific vision, and management excellence by Israeli engineers has been hijacked by the idea that this is a way to defend a country. It is, at best, a notable supplement. Despite its remarkable technology and helpful facets, it is not and never will be a key factor in an effective security doctrine for Israel. It has become, much to our peril, a pillar of an ineffective doctrine.

So we celebrate another achievement in Israeli ingenuity, worthy of much praise, but this new achievement will continue to facilitate a faulty defense doctrine.

Israel's Strategic Nuclear Doctrine: Ambiguity vs. Openness

Israel's strategic nuclear policy is always a matter of great secrecy. From the standpoint of Jerusalem's national command authority, this stance would appear to be prudent and sensible. After all, beginning with the country's longstanding commitment to "deliberate ambiguity," a manifestly core policy

position concerning nuclear weapons and nuclear warfare, every element of pertinent Israeli doctrine has remained determinedly in the "basement."

But is such pervasive strategic secrecy really in the best survival interests of the imperiled Jewish State? The answer to such an important question should be firmly grounded in formal strategic doctrine. It should not be an off-the-cuff or otherwise ad hoc posture, invented and re-invented viscerally from one crisis to the next.

This answer should also be based upon a carefully reasoned awareness of all available options. Any purposeful loosening of Israeli nuclear ambiguity could be subtle, nuanced, indirect, and incremental. Contrary to the often caricatural views of such loosening found in popular newspapers and magazines, it would not have to take the more provocative forms of an explicit or official policy pronouncement.

Formal doctrine is the required framework from which any pragmatic nuclear policy of ambiguity or disclosure should be suitably extrapolated. In all military institutions and traditions, such doctrine describes the tactical manner in which national forces ought to fight in various combat situations, the prescribed "order of battle," and assorted corollary operations. Significantly, the literal definition of "doctrine" derives from Middle English, from the Latin doctrina, meaning teaching, learning, and instruction.

The central importance of codified military doctrine lies not only in the way it can animate, unify, and optimize national military forces, but also in the way it can transmit desired "messages" to an enemy state.

Understood in terms of Israel's strategic nuclear policy, an indiscriminate, across-the-board ambiguity can be more-or-less injurious to the country's national security. This is the case because effective deterrence and defense may sometimes call for a military doctrine that is at least partially recognizable by certain adversary states, or even particular insurgent groups.

"The whole point of the doomsday machine is lost," complains Dr. Strangelove, "if you keep it a secret."

In routine military planning, options for strategic surprise can obviously be very helpful, if not altogether indispensable, to successful combat operations. But successful deterrence is another matter entirely. In order to persuade would-be adversaries not to strike first, a complex effort at dissuasion, too much secrecy can sometimes be counter-productive.

In the matter of Israel and its enemies, ultimate success must lie in deterrence, not war-fighting. There are times, too, when stable deterrence relations may require the deliberate "loosening" of certain information that had formerly been tightly held. Such strategic information could concern Israel's capabilities, its intentions, or both together.

Sometimes, strategic truth is counterintuitive. There are times when too much secrecy can actually undermine a country's security. Recall, in this connection, a wildly-popular 1960s movie, in which Dr. Strangelove (also the name of the film) discovers, to his horror, that the existence of America's "doomsday machine" was never made known to the Soviets.

"The whole point of the doomsday machine is lost," complains Dr. Strangelove, "if you keep it a secret." To be deterred, the film then instructs, the Soviets ought to have been given advance warnings of the "doomsday machine." The device, after all, had been designed solely to ensure the perceived automaticity of America's retaliatory response. Naturally, this response would be recognized in Moscow as "massive" or "assuredly destructive."

Israel's nuclear weapons must always be oriented to deterrence ex ante, not to war fighting or revenge ex post. As instruments of deterrence, nuclear weapons can succeed only in their non-use. Once they

are used for actual battle, deterrence, by definition, has failed. Also, once used, any traditionally meaningful sense of "victory," especially if both sides are nuclear, is apt to become moot.

The Cold War is over, and Israel's deterrence relationship to a prospectively nuclear Iran is not really comparable or analogous to the American-Soviet "Balance-of-Terror." Still, there are Cold War deterrence lessons to be learned currently and concurrently in Jerusalem and Tel-Aviv.

In essence, any unmodified continuance of total ambiguity about Israel's strategic targeting doctrine could cause a nuclearizing enemy state like Iran to underestimate Israeli retaliatory capacity or resolve.

Similar uncertainties surrounding actual components of Israel's nuclear arsenal could lead such enemy states to reach the same conclusion. In part, this is because Israel's willingness to make good on threatened nuclear retaliation could be seen, widely perhaps, as inversely related to weapon system destructiveness. Ironically, in other words, if Israel's nuclear weapons were believed to be too destructive, they might not deter.

There is also the related matter of doctrine, and Israeli strategic nuclear capability. A continuing policy of total ambiguity could cause an enemy state to overestimate the vulnerability of Israel's nuclear forces. This could be the partial result of a too-complete silence concerning measures of protection safeguarding Israeli nuclear weapons.

It could be the product of Israeli doctrinal obfuscation on the country's defense potential, a silence that could be mistakenly understood, by certain enemy states, as an indication of inadequate Israeli Ballistic Missile Defense (BMD). To be maximally useful, certain strengths and capabilities of Arrow, Iron Dome, and, in the future, Magic Wand, will need to be revealed.

To fully understand the question of Israeli strategic doctrine, we must first recall the core foundations of Israeli nuclear deterrence. These foundations concern prospective attackers' perceptions of Israel's nuclear capability, and Israel's willingness to use this capability. Any selective telegraphing of Israel's strategic nuclear doctrine, therefore, could possibly enhance Israel's nuclear deterrence posture. It would do this by heightening enemy state perceptions of both Israel's capable nuclear forces, and its announced willingness to use these forces in reprisal for certain stipulated first-strike and retaliatory attacks.

To deter an enemy attack, or a post-preemption retaliation against Israel, Jerusalem must always prevent a rational aggressor, by threat of an unacceptably damaging retaliation or counter-retaliation, from deciding to strike first. Here, security would be sought by convincing the potential rational attacker (irrational state enemies could pose an altogether different problem) that the costs of any considered attack will always exceed the expected benefits.

Assuming that Israel's state enemies: (1) value self-preservation most highly; and (2) always choose rationally between alternative options, they will refrain from any attack on an Israel that is believed both willing and able to deliver an adequately destructive response. These enemy states might also be deterred by the prospect of a more limited Israeli attack, one that is directed at national leaders as such; that is, by plausible threats of "regime targeting."

Two factors must communicate such a belief. First, in terms of capability, there are two essential components: payload and delivery system. It must be successfully communicated to any prospective attacker that Israel's firepower, and its means of delivering that firepower, are capable of inflicting unacceptable levels of destruction. This means that Israel's retaliatory or counter-retaliatory forces must always appear sufficiently invulnerable to enemy first-strikes, and also sufficiently elusive to penetrate the prospective attacker's active and civil defenses.

Counter intuitively, it may or may not need to be communicated to a potential attacker that such firepower and delivery vehicles are superior. Deterrence is not about "victory." In fact, the capacity to deter may or may not be as great as the capacity to "win."

With Israel's strategic nuclear forces and doctrine kept locked in the "basement," enemy states could conclude, rightly or wrongly, that a first-strike attack or post-preemption reprisal would be cost-effective. But, were relevant Israeli doctrine made more plainly obvious to enemy states contemplating an attack - that Israel's nuclear assets met both payload and delivery system objectives - Israel's nuclear forces could better serve their critically existential security functions.

The second factor of nuclear doctrine for Israel concerns willingness. How may Israel convince potential nuclear attackers that it possesses the resolve to deliver an immensely destructive retaliation, and/or counter retaliation? Again, the answer to this question lies largely in doctrine, in Israel's demonstrated strength of commitment to carry out such an attack, and in the nuclear ordnance that would presumably be available.

Here, too, continued ambiguity over nuclear doctrine could wrongfully create the impression of an unwilling Israel. Conversely, any doctrinal movement toward some as-yet-undetermined level of disclosure could heighten the impression of an Israel that is, in fact, willing to follow-through on its nuclear threats.

There are, then, persuasive connections between an incrementally more "open" or disclosed strategic nuclear doctrine, and enemy state perceptions of Israeli nuclear deterrence. One such connection centers on the expected relation between greater openness, and perceived vulnerability of Israeli strategic nuclear forces from preemptive destruction. Another such connection concerns the relation between greater openness, and the perceived capacity of Israel's nuclear forces to reliably penetrate the offending state's active defenses.

To be deterred by Israel, a newly-nuclear Iran would need to believe both that (a critical number of) Israel's retaliatory forces would survive any Iranian first-strike, and that these forces could not then be stopped from hitting their designated targets in Iran. Regarding the "presumed survivability" component of Iranian belief, possibly recent expansions of sea-basing by Israel could be a relevant case in point.

Carefully articulated, expanding doctrinal openness, or partial nuclear disclosure could represent a distinctly rational option for Israel, to the extent that pertinent enemy states were made appropriately aware of Israel's relevant nuclear capabilities. The operational benefits of any such expanding doctrinal openness would accrue from deliberate flows of information about tangible matters of dispersion, multiplication, and hardening of its strategic nuclear weapon systems, and also about certain other technical features of these systems.

Most importantly, doctrinally controlled and orderly flows of information could serve to remove any lingering enemy state doubts about Israel's strategic nuclear force capabilities and intentions. Left unchallenged, such doubts could lethally undermine Israeli nuclear deterrence.

Finally, a key problem in refining Israeli strategic nuclear doctrine has to do with what the classic military thinker, Clausewitz, calls "friction." No military doctrine can ever fully anticipate the actual pace of combat activity, or, as corollary, the precise reactions of human commanders under fire. It follows that Israel's nuclear doctrine must always be encouraged to combine tactical flexibility with selective openness.

To understand how such seemingly contradictory objectives can best be reconciled now presents a primary intellectual challenge to the principal decision-makers in Jerusalem and Tel-Aviv.