Ethical and legal dimensions of the Bush "preemption" strategy.

• Author: Cook, Martin L.

We will cooperate with other nations to deny, contain, and curtail our enemies' efforts to acquire dangerous technologies. And, as a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed. We cannot defend America and our friends by hoping for the best. So we must be prepared to defeat our enemies' plans, using the best intelligence and proceeding with deliberation. History will judge harshly those who saw this coming danger but failed to act. In the new world we have entered, the only path to peace and security is the path of action.

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The National Security Strategy of the United States of America (NSS), required from each administration by the Congress of the United States, is the single most authoritative statement of any administration's view of the world from the perspective of national security. At least notionally, it provides the conceptual framework by means of which decisions are made regarding the force structure and size of the U.S. military, the types of weapons systems to be acquired by them, and the types of military units maintained in the force.

It is, therefore, a document (in any administration) well worth careful study and analysis. This particular NSS is more than routinely important, however, for a number of reasons. First, and most obviously, it is the first official articulation of the comprehensive view taken by the U.S. security policy in response to the al Qaeda attacks of September 11, 2001. It is, therefore, an official and doctrinal articulation of how the administration understands the security landscape to have been changed by those attacks. Second, in articulating a strategy of preemption of the acquisition of capabilities on the part of potential adversaries (or, perhaps even more strongly, of preventive use of U.S. military force around the world in advance of clear response to aggression), the NSS at very least appears to challenge much of the existing understanding of legitimate use of military force in the international system. (2) And third, coupled with various other moves this administration has made (e.g., non-participation in the Kyoto treaty process and the International Criminal Court, to name only two of the most visible), the NSS appears to indicate a marked departure from the robust internationalism of President Clinton's National Security Strategy (3) framework of attempting to shape the international environment, responding to threats, challenges, and opportunities, and preparing for a more desirable future by integrated and regional programs of promoting democracy, free trade, etc. while also transforming the U.S. security sector.

Whereas the Clinton NSS conceives of a complex and multicentered world and imagines U.S. action to function within a web of interconnected forces and causes, the tone of President Bush's NSS clearly puts greater emphasis on the need for U.S. action. For example, President Bush's NSS states:

In the new world we have entered, the only path to peace and security is the path of action. As we defend the peace, we will also ... preserve the peace. Today, the international community has the best chance since the rise of the nation-state ... to build a world in which great powers compete in peace instead of continually prepare for war. Today, the world's great powers find ourselves on the same side--united by common dangers ... [and] increasingly ... by common values. This passage is particularly revealing because, while it certainly acknowledges the common international interest in dealing with the challenges of terrorism it identifies, the overriding emphasis rhetorically is on the need to act--such that, should the rest of the international community not share a common sense of urgency regarding a specific case (as in the decision to proceed with the invasion of Iraq, for example), clearly the felt urgency to act is dominant over the careful tending of international common cause. (5)

This essay will assess the implications of this shift in U.S. strategy from a legal and ethical perspective. If one views existing international law as a kind of stop-motion photograph of a much older and varied ethical tradition of reflection on the justifications for the use of military force, it may well be (as this essay will argue) that the resources of that older ethical tradition provide useful insights and fundamental principles to guide the development of our thinking in times of change in which, as may indeed be the case in the current environment, the fundamental shape of the international order is shifting.

If one thinks of the international system in terms of an analogy to plate tectonics in geology, there are indeed historical moments in which the apparent stability of that system shifts rather dramatically and, in world-historical terms, rather quickly. A major shift of this kind occurred between the Reformation and the Peace of Westphalia, which created the current international system of sovereign independent states. If, upon reflection, we conclude we are indeed in the midst of another such shift, it should not be surprising that the black-letter law designed to provide normative guidance to the old order fits poorly if at all in the post-shift environment.

If indeed we are experiencing such a transition, it is important to continue to find normative legal and ethical justifications for the use of force. But if we are to do so, we will need to be able to reach back for conceptual resources and frames of the whole of our ethical tradition to provide touchstones for reframing a new structure that preserves core values and conceptual insights. To some degree, this necessarily will require refraining the specific understanding that had taken form in current international law. The thesis of this essay is that we may very well, indeed, be at such a world-historical moment. In light of that possibility, this essay will tentatively explore how those older ethical resources might help guide our bearings after the earthquake shift has upset our formerly familiar terrain.

1. THE CURRENT LEGAL AND ETHICAL FRAMEWORK FOR ASSESSING USE OF MILITARY FORCE

   As is commonly known, the current legal and moral framework within which we think about international affairs generally and the use of military force in particular is the product of a specific set of historical circumstances, brought about by the Peace of Westphalia in Europe in 1648. (7) Prior to that, at least for Europe, one can barely speak of an "international order." Rather, there was a notional Christendom that provided a cultural, religious, and moral overlay to all European powers. Grounded in a common commitment to the beliefs and structures of the Roman Catholic Church, that superstructure claimed (and to a large degree was granted) the authority to adjudicate between princes and to determine the moral and legal status of their conflicts. (8)

   The wars of religion that followed the Reformation, therefore, are best seen as an effort to restore that lost religious unity to Europe--except now with several versions of Christianity asserting their supremacy and making their claim to be the new unifying force. The Peace established at Westphalia was less a triumph of the ideals and fondest hopes of any of the contenders than an exhausted recognition of the futility of the hope of any such restoration. (9)

   It did not so much resolve the fundamental religious conflicts as make a grudging peace with the religious diversity of Europe at least between the new Westphalian states, if not in their internal policies of toleration for religious minorities. (10) The new hermetic sovereignty Westphalia created formed an impenetrable shield behind which individual states could continue to pursue policies of religious uniformity and intolerance, up to and including persecution and execution of citizens who refused to conform to the established religion, whether Catholic or Protestant. (11) It was, to use modern parlance, peace at an international level, purchased by deliberate neglect of individual human rights such as freedom of religious opinion and practice.

   The core of the moral and legal framework created by that Westphalian settlement is perhaps best captured by the philosophical literature in Michael Walzer's legalist paradigm in his now-classic Just and Unjust Wars:

   There exists an international society of independent states This international society has a law that establishes the rights of its members--above all, the rights of territorial integrity and political sovereignty Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act. Aggression justifies two kinds of violent response: a war of self-defense by the victim and a war of law enforcement by the victim and any other member of international society Nothing but aggression can justify war. Once the aggressor state has been militarily repulsed, it can also be punished. (12) Walzer's paradigm is, of course, only the core of the model--a kind of "regular verb" paradigm for the language of international law. Following the statement of this clear paradigm, he pens chapters that attempt to conjugate the "irregular verbs" of the language to accommodate justified counterinterventions, preemption, humanitarian interventions, and so forth. (13) But the concept of "peace" that drives the Westphalian international system focuses exclusively on state-to-state interactions. It defines peace as liberty and security that can only exist in the absence of aggression among those states. (14) Consequently, any compromises of the sanctity of the core Westphalian principles of political sovereignty and territorial integrity of those states is necessarily going to be granted grudgingly, hesitantly, and with a strongly felt sense of the destabilizing risks to the system if and...