Pre-Crime?
What the Film Minority Report Can Teach Us About the Three Key Rules of Preemptive War

By MATTHEW SEGAL

Tuesday, Apr. 15, 2003

Many have debated whether "preemptive war" - that is, war in the absence of an imminent threat of armed attack - is legitimate. Now that America's first preemptive war nears an end, it's worth reflecting on another question: Assuming preemptive wars are legitimate - or, in any event, a reality with which we must contend - are there special rules for such wars?

I will argue that there should be - drawing on an analogy to the Steven Spielberg film Minority Report, based on a short story with the same title by the renowned science fiction writer Philip K. Dick.

Minority Report and the Concept of Pre-Crime

Spielberg's film, like Dick's story, envisions a society in which people are arrested for crimes they have not yet committed. How can the government know they will commit future crimes? Three "pre-cogs" - genetic freaks with pre-cognition, the power to see the future - say so.

According to the government, the pre-cogs are infallible. For them, the future is as clear as the present - perhaps clearer, for they can see inside private houses, and into private lives and thoughts. Their perfect knowledge of the future means police never arrest the wrong guy. Law enforcement begins to operate on a theory of "pre-crime" - catching the perpetrators before they strike.

Thus, in the world of Minority Report, guilt or innocence is never the question. Instead, the question is merely this: Is the cost of pursuing these pre-criminals greater, or lesser, than the foreseeable costs of inaction? Murderers must be stopped, but is it worth going after petty shoplifters whom the pre-cogs know will never strike again?

In Minority Report, the audience eventually learns, however, that the pre-cogs are indeed fallible. On one occasion, two pre-cogs believe a crime will be committed, but another dissents (thus the reference to the "minority report"). Some pre-cog has to be wrong - and thus not all pre-cogs are infallible.

The Advent, After 9/11, of Pre-Crime Concepts in America

Like the characters in Minority Report, many Americans have become unwilling to wait until after the crime to go after the criminals. Yet unlike in the movie, no American can actually believe that our government can infallibly predict future crimes. Thus, while the characters in Minority Report preempt because they believe their pre-cogs know the future, we preempt because we fear it.

The reason for our impatience and fear is, of course, September 11. It demonstrated that our enemies can seriously injure us in their initial attacks. Of course, this was something we'd known at least since Pearl Harbor, and probably long before; ambushes can be devastating. But with 9/11 this danger was demonstrated anew for the modern era, and with the threat of weapons of mass destruction newly in the mix. That threat allowed President Bush repeatedly to invoke the idea that it makes no sense to wait for a "smoking gun," since the smoking gun "may be a mushroom cloud."

Granted, any theory of national self-defense relies on forecasting the future. But preemption requires extraordinary foresight. As President Bush tells it, we attacked Iraq to protect innocent American and Iraqi lives.

The war, then, depends on predictions that without war, Iraq would slip weapons of mass destruction to terrorists such as Al Qaeda, who would use them on Americans. It also depends on predictions that, without war, Saddam Hussein would commit atrocities against his own population, and perhaps those of neighbors as well.

The idea is the same behind "pre-crime" as practiced in Minority Report: Intervention now means that future crimes that would otherwise have been committed never happen. Intervention can have its own harms, however - which also need to be predicted.

As a result, any doctrine of preemption is essentially a cost-benefit analysis caught in a time warp. If we had perfect knowledge of the future - infallible pre-cogs, say - the time warp wouldn't matter. But, alas, we have no pre-cogs. Instead, we have only pre-casualties--Iraqis and Americans who, according to preemption, would have died in future conflicts, and now will not.

The First Rule of Preemptive War: Congress Must Debate It

What do these facets of preemptive war imply for the conduct of such wars?

For one thing, since preemption tests our cognitive limits - our predictions are far from infallible - it should be pursued only after rigorous political debate. President Bush cannot read Saddam Hussein's mind, yet he had to decide whether to invade Iraq or risk future attacks by Iraqi weapons.

Armed attacks provide certainty about our enemies' intentions - and even about their being enemies in the first place. (Some have argued that Saddam's interests were regional, not particularly anti-U.S.) In contrast, we know now Al Qaeda's aim with near-certainty: It is to inflict spectacular harm on Americans, through attacks on American soil and abroad. Repeated attacks have proven that beyond debate. In contrast, preemption is by its nature speculative.

For this reason, debate is all the more necessary. Perhaps, as some have contended, a President should be able to respond instantly to an armed attack, without Congressional authorization. But a preemptive war should never commence - and, under the Constitution, it must not - with a single man's (or woman's) decision. Instead, it should involve intense Congressional debate and public participation.

Yet, with encouragement from the President, Congress has never debated the Iraq war. Congress' neglect is inexcusable and should not recur in future bids at preemptive war. If President Bush begins another preemptive war - say, against Syria or Iran - without a Congressional vote, both he and Congress will have undermined our democracy.

The Second Rule of Preemptive War: Zealously Protect Civilians

Another important rule of preemptive war should be the especially scrupulous protection of civilians. After all, it would be ironic and tragic to claim to be fighting a war in part to save Iraqi civilians' lives, to the extent we cause numerous Iraqi civilian deaths in the process.

Some who support the war have suggested that Coalition efforts to protect civilians are kind gestures, but not imperative. After all, they say, the reality is that civilians die in wars.

This view is wrong - and all the more wrong because the war on Iraq is a preemptive war. The preemption doctrine, under which this war began, creates a special obligation to safeguard civilians. Every time a civilian dies in a preemptive war, the justification for that war - supposedly to save these very lives - is undermined. And remember: the lives saved are hypothetical, while the death toll is 100 percent certain.

This obligation to save civilian lives thus falls especially on the war's supporters. Every time a civilian dies in a preemptive war, it is they who lose credibility; it is their arguments that are drained of force.

If more civilians die than preemption ever could have hoped to save, their arguments are destroyed entirely - and their fallibility proven. Preemption is rendered incoherent and apocalyptic.

The Third Rule of Preemption: Look to the Long-Term With Special Care

There's a third rule that should govern preemptive war, too: Its blindness to time means that a war's legitimacy is not determined in a snapshot.

Consider a war precipitated by an armed attack. Its goal is to re-establish national security and protect the country's borders from virtually certain future attacks by a self-declared enemy. When the enemy is defeated or neutralized, its goal is fully served. Mission accomplished.

Now consider a preemptive war. Its goal is to prevent more harm than it causes. When? Over all history, at least in theory. So when will a preemptive war be vindicated? Always - and never. After we wage a preemptive war, we should always be watching to make sure that history applauds, and not condemns us.

Ideally, a thousand years in the future, historians should look back and say, the Iraq war improved the world, instead of harming it.

That means, in practice, that America's current obligation to protect Iraqi lives will extend into post-war Iraq, and into the very future for which the war was waged.

How to Avoid Overusing the Preemption Doctrine

Given the fallibility of our preemption predictions, how can we avoid abusing preemptive war? In theory, everyone in the world is a would-be victim and a justified preemptor. Indeed, each of us would be safer from attack if everyone else were annihilated. The question is, how likely is it that a particular person or group will attack us?

Justified preemption demands perfect foreseeability - and a high likelihood predictions are accurate. At the same time, using the logic of preemption itself makes perfection less likely. That's because the preemptors might not identify with the preemptees.

For instance, Americans may neglect or minimize the Iraq war's human costs, because most of the war's dead are Iraqi, not American. Thus, they may feel the war was justified even if it took more lives than it saved. And based on its "success," America may commence other preemptive wars that are not really justified.

The best way to avoid this problem is to consider Iraqis as Americans. Would we have bombed Baghdad so relentlessly if, all else being equal, its inhabitants were American?

If not, then our calculus of innocent lives was dishonest, and our preemptive war unjust. If so, then the war has cleared a major hurdle of legitimacy. In a preemptive war, especially, there can be no hierarchy of innocents.

Under this standard, the number of Iraqis celebrating now is not merely a heartwarming story. It is a barometer of the war's legitimacy - for the celebrating Iraqis likely believe that preemption's justification is true: The war saved more lives than it cost.

In sum, if we are to remain preemptors--a possibility that seems more likely with every Donald Rumsfeld press conference--we must succeed where the pre-cogs failed. Our predictions must be accurate, our debate robust, and our attacks precise - and geared to avoid civilians in every possible way.


Matthew Segal is a freelance writer and an associate at Arnold & Porter in Washington, DC. The opinions expressed in this column are his. He can be reached at matthew.segal@aya.yale.edu.

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