ESCHEWING LAW IN FAVOR OF FORCE:
The Problem With The Administration's National Security Strategy And U.S. Unilateralism

By MICHAEL C. DORF

Wednesday, Oct. 30, 2002

The administration's National Security Strategy, announced last month, is a stunning example of America's insensitivity to how the world views us. This document asserts that the U.S. will actively thwart the efforts, should they occur, of other countries to achieve superpower status.

This is not a policy aimed at curbing threats from terrorists and other non-state actors. It aims at other sovereign states.

Given American economic and cultural power--and the resentment they inevitably breed--one would think that a prudent American leader would do everything in his power to reassure the world that American hegemony will not become imperialism.

And yet, with the noteworthy exception of last year's military campaign in Afghanistan, the Bush administration has almost invariably chosen unilateralism that comes across--even to our friends--as bullying.

The Folly of Announcing to "Adversaries" that We Will Maintain our Supremacy

The National Security Strategy remarks upon the U.S. commitment to fostering democracy around the world. Nevertheless, it also asserts the goal of maintaining superpower status vis-a-vis all comers - including democratic regimes.

It proclaims broadly that: "Our forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States."

Yet who are our potential adversaries? China, a resurgent, nationalist Russia, and even the European Union and its member states all might pose long-term challenges to our dominant position. The European Union member states are democracies, as is Russia, for now anyway, while China's continuing reforms may eventually lead to democratization. None of these potential rivals is a rogue state in the manner of Saddam Hussein's Iraq or Kim Jong Il's North Korea.

Perhaps the National Security Strategy can be defended as an exercise in realpolitik, merely forthrightly stating what would be true of any great power--that it will attempt to maintain its dominance. If so, shouldn't the administration be commended for its honesty?

The short answer is no. It hardly counts as competent geopolitics to announce a policy of determined, indefinite military supremacy. Assuming that is our goal, why alienate those already suspicious of our intentions?

Seeing Ourselves Through Other Countries' Eyes

The fundamental public relations problem with American foreign policy is that the rest of the world does not share our own estimation of our aims as benign.

Consider the question of nuclear weapons. Citizens of other lands have not forgotten that the United States remains the only country in the world ever to have used nuclear weapons against civilian (or for that matter, any human) targets.

To be sure, the purpose of the bombing of Hiroshima and Nagasaki was to avoid even greater casualties from a land invasion of Japan--although recent historical research suggests that Japan might well have surrendered without a land invasion or a nuclear attack.

And the fact is that, whether justified or not, American use of nuclear weapons at the end of World War II demonstrated that we considered them a legitimate military tool--a policy that continued through the Cold War and remains in effect today.

None of which is to say that we lack moral standing to object to nuclear proliferation. The prospect of Iraq or North Korea acquiring nuclear weapons is profoundly disturbing. The Bush Administration is thus right to try to thwart Saddam Hussein and Kim Jong Il. But that is because Iraq and North Korea are aggressive dictatorships that pay little heed to the rules and customs of civilized nations--not because they are U.S. rivals.

The Power of Law: Why the U.S. Should Not Merely Invoke Force

If we are to succeed in our foreign policy aims, we cannot consistently act alone. And if we are to enlist foreign support for those aims, we must be able to marshal reasons beyond the fact that we have the biggest stick.

Fortunately, there is a mechanism for justifying coercive action--whether by the state against the individual or by the world community against rogue regimes. That mechanism is law.

Failure to abide by U.N. resolutions or to obey treaty obligations is quite a different matter from acting in ways that harm the perceived self-interest of the United States. The former provides a basis for concerted action by the world community, while the latter merely explains why a powerful nation might choose to act.

However, if we want to invoke international law, we cannot afford to appear to do so purely opportunistically. And yet that appearance is almost unavoidable. The current administration, for instance, opposes the Kyoto Accords on global warming, and U.N. efforts to impede the flow of small arms.

It also opposes the International Criminal Court, having gone so far as to press nations around the world for guarantees that U.S. soldiers and others would not be subject to its jurisdiction. And the administration's claimed power to make war pre-emptively in the face of no imminent threat - a key component of the National Security Strategy - is a clear violation of the U.N. charter.

Law as Pragmatic, Not Idealistic

I want to be clear that I am not saying that international law has any independent moral force. Not all proposed treaties are beneficial, nor is it even necessarily wrong to violate international law.

If, for example, we had good reason to believe that Saddam Hussein or someone else was about to acquire and use weapons of mass destruction against us, and if we also had good reason to believe that we could only stop him with military force, then we would be right to use military force--regardless of what international law or the U.N. said. The law of survival takes priority over all other laws.

Nonetheless, and this is the crucial point, one cannot make the case for extenuating circumstances too frequently without becoming a vigilante.

Vigilantes like Dirty Harry make for good cinematic heroes precisely in those circumstances in which the law has broken down. The vigilante hero takes the law into his own hands because there is no law, and certainly no justice, otherwise.

But a world in which the law has broken down is a dangerous place to live. And unfortunately, the more that we act like vigilantes, the more we are likely to bring about just such a world.

A note from Professor Dorf: In my last column I referred to the Supreme Court's "denial of review in Forrester v. New Jersey Democratic Party," thereby suggesting that the high court had disposed of the case entirely. In fact, the Court merely denied the application for an emergency stay of the New Jersey Supreme Court's decision. It has not yet acted on the certiorari petition. The archived version of my column has been amended to correct the error.


Michael C. Dorf is Professor of Law at Columbia University.

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