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Foreign Policy And The Election:
What Are the Candidates' Views on Pre-Emptive War? And When Should Such a War Be Waged?

Tuesday, Oct. 26, 2004

Pre-emptive war - that is, war in the absence of an imminent armed attack that renders the war justifiable self-defense - violates the U.N. Charter. There are only two exceptions to this rule: The war can be legal if it has U.N. approval, or if the purpose of the war is to stop ongoing genocide.

Plainly, under these criteria, the Iraq War was illegal under international law. The U.S. did not claim - and could not have claimed -- that an armed attack was imminent, nor that a genocide was currently occurring in Iraq. And the U.N. had not given its approval for the U.S. attack.

The fact that the Iraq War was illegal should raise several key questions for voters considering the candidates' foreign policy for the upcoming election: Might President Bush, if re-elected, be willing to undertake another illegal war? Would Senator Kerry, if elected, ever find reason to undertake an illegal war?

In this column, I will discuss the law and morality of illegal war, and consider the candidates' positions.

The U.N. Charter Must Trump Domestic Law When It Comes To War

To begin with, are U.S. wars really illegal if they are conducted in accord with domestic - but not with international - law? The answer is yes.

Under Article II of the Constitution, the President does have broad power to conduct war. However, for the U.N. Charter to mean anything, it must trump countries' domestic law of war.

When U.S. compliance with the Geneva Conventions became an issue, some of President Bush's advisors opined that Article II gave the President the option of disregarding the Conventions - and thus of engaging in torture in clear violation of the Conventions. That argument was wrong then: Domestic law cannot trump the Geneva Conventions. And it's still wrong now: Domestic law cannot trump the U.N. Charter's rules of war.

In sum, a war well within the President's broad powers to wage war can still be an illegal war if it violates the U.N. Charter.

Illegal Wars May Still Be Justified Wars, But Iraq Underlines Why They Should Be Rare

Presidents may want to opt - at times - to wage illegal wars, if they feel that the justifications for doing so are very compelling. In part, this is because the U.N.'s self-defense limitation to an imminent attack is too narrow to reflect modern realities.

In a prior column, I argued that a country can't be asked to sit by as another country arms, or prepares to arm, terrorists against it. Besides, the threat of a post-attack reprisal against the perpetrators is unlikely to deter the terrorists from attacking. .

It is every country's responsibility to address - not aid -- terrorists within its borders who seek to attack foreign states. And if a country does not fulfill this duty, invasion by another country should be an option (though cooperative enforcement, or unilateral surgical strikes within the country, against the terrorists, are far preferable.)

I still think this position is correct, as a matter of theory. But lessons from the Iraq war, however, have convinced me how very rare illegal wars ought to be - and how tenuous, and wrong, their justifications can be.

There's no arguing about whether a country has been attacked - leading to a legal war. But it can be a matter of opinion how severely a country is in danger - and that difference of opinion can turn political, rather than factual.

The Lessons of the Iraq War

Here are a few lessons from the Iraq War:

First, intelligence can be exceedingly faulty - and distorted by politics. Consider the scandals involving both the satellite evidence Colin Powell showed to the U.N., and the evidence that Saddam was seeking nuclear weapons that President Bush cited in his State of the Union - as well as the infamous missing WMD.

Each of these examples - and remember, these were the prime evidence on which the war was based - shows how intelligence can be dead wrong. These examples also raise the specter of an Administration eager for strong evidence, believing - or pretending - it has that evidence when it simply does not.

Second, spying deficiencies can be masked with speculation that is presented as fact. A single spy close to Saddam should have been able to rebut the WMD claims - or else locate the WMDs, if they existed. It seems, though, that we didn't have a spy with sufficiently good access to speak authoritatively to this issue - yet the Administration pretended to speak authoritatively on this issue, anyway.

Why wasn't our intelligence better? Perhaps for the same reason the FBI was - and seems to still be - lacking in sufficient numbers of competent Arabic translators: A strategic miscalculation, and a failure to recruit from the pool of patriotic Arab-Americans (and others) who could convincingly pass as native Iraqis.

Third, we should apply careful scrutiny to questionable sources of information. Courtroom principles provide a guide: Hearsay, in this instance, is less valuable than direct testimony. A witness - here, a spy - with access and reason to know what he's talking about deserves greater credibility than a rumormonger. In addition, those with bias and invested self-interest are less credible. Consider the Iraqi expatriates who wanted to see Saddam fall, by any means necessary, and acted as sources for U.S. reporters. In retrospect, the use - and perhaps overuse -- of such sources has turned out to be a serious flaw in the reporting of the New York Times's Judith Miller. Conversely, those who are truly neutral, such as at least some of the weapons inspectors, ought to be carefully listened to.

Fourth, an invasion because there is a WMD threat may not eliminate that threat, but only shift it. Iraq's WMD, if they ever did exist, may have been transported to a neighboring country - such as Syria. After all, Saddam had quite a bit of time to send them across the border, once the writing on the wall about the U.S. invasion was clear, but the invasion had not yet occurred. And if we are talking about small stockpiles of deadly viruses or chemical agents, they might have been moved without notice.

If the weapons indeed were transported out of Iraq, then the threat that they may end up in (or already are in) terrorists' hands is just as great as - if not greater than -- before the war. After all, U.S. conduct in Iraq - including, but not limited to, the Abu Ghraib prison torture - has probably aided terrorists' recruitment efforts around the world. And the U.S.'s decision to invade may have convinced Saddam to hand off any WMD he had to more dangerous allies.

Fifth, and finally, illegal wars may distract us from legal - and urgently necessary - wars. Not only are the WMDs still at large, so, of course, is Osama bin Laden. And that may in part be because the Iraq War distracted the U.S.'s focus away from its pursuit of the aggressor who gave rise to a legal war against the Taliban and Al Qaeda.

When a nation's illegal wars distract from its legal, justified wars, that's a clear sign that something is very wrong. Like Pearl Harbor, the September 11 attacks convinced the U.S. to resort to a war in self-defense - a war perfectly legal under the U.N. Charter because the Taliban had embraced Al Qaeda.

President Bush's Position: Clearly Supportive of Pre-Emptive, Illegal War

Despite these lessons of the Iraq war, President Bush has continued to embrace broad justifications for preemptive war--justifications that are not limited to the risk America will be attacked by terrorists harbored, or armed, by the invaded country.

To cite the most prominent example, he has defended the Iraq War despite the absence of weapons of mass destruction (WMD), on the simple ground that the world is better off with Saddam Hussein deposed. And he has said that, if he had the opportunity to go back and do it again, he still would have invaded Iraq - even knowing he would not find WMD.

Given this position, the President's belief in his ability to engage in illegal wars appears extremely broad. What he has said about Iraq could be said in reference to many other countries: A change of regime would make both the country, and the world, safer.

That's certainly true of Iran, North Korea, and Syria, for example. Thus, the President's logic wouldn't seem to rule out invading any of those countries, as well.

Senator Kerry's Position: No U.N. Veto for American War

What about Senator Kerry's position on illegal wars? From what he has said, it seems he, too, would wage them, although in narrower circumstances than President Bush.

Senator Kerry has said that he puts a high value on the U.S.'s international alliances, and on avoiding war whenever possible. He also has said he believes that further weapons monitoring might have been helpful in determining, before the invasion, whether there were actually WMD's being manufactured in Iraq.

It is safe to assume, then, that Senator Kerry would have tried harder, and longer, than President Bush to procure U.N. approval for the Iraq War - as he suggested in the first Presidential debate. Yet, in the end, Senator Kerry, too, might well have reserved the option to go to war even without U.N. approval. After all, in his speech accepting the Democratic nomination, Kerry said "I will never give any nation or international institution a veto over our national security."

In the same speech, Kerry gave additional indications as to when he would, and would not, go to war illegally. He explained as follows: "Before you go to battle, you have to be able to look a parent in the eye and truthfully say: 'I tried everything possible to avoid sending your son or daughter into harm's way. But we had no choice. We had to protect the American people, fundamental American values from a threat that was real and imminent.' So lesson one, this is the only justification for going to war."

These remarks are ambiguous in an important way: What - in Kerry's eyes - would qualify as a real, imminent threat to American "values" that might justify war? For example, could a given country's not being a democracy be considered a threat to American "values"? After all, isn't democracy among the highest of American values?

Some of the ambiguity of Kerry's position is, of course, understandable. A declaration that, as President, he would never engage in a preemptive war would be extremely unwise - and practically an invitation for other countries to harbor terrorists and stockpile WMD's.

Yet further guidance from Kerry as to when, exactly, he would engage in illegal war would be welcome - for we must, at least, pick our battles.

For instance, a surgical strike into North Korea to remove nuclear weapons threatening our allies might well be justified -- even though it would be illegal in the absence of U.N. approval or any imminent threat. North Korea has proven itself to be a dangerous, erratic rogue regime. It may not be deterred from mounting attacks by the possibility of counterattacks, as other nations are. And it may well have aspirations of regional conquest that nuclear weapons will alone make possible.

It is cases like North Korea's that rightly make candidates like Kerry loath to give up the option of waging pre-emptive war. But it is only in cases like these, that preemptive war may be justified.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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