U.S. security strategies: a legal assessment.

• Author: Schmitt, Michael N.

In less than five years, the United States has participated in three major military campaigns, each an apparent departure from then-prevailing use-of-force paradigms. NATO conducted the first, Operation Allied Force, in 1999, to end abuse of the Kosovar Albanians by ethnic Serbs of the Yugoslav security forces and to force President Slobodan Milosovic back to the negotiating table after his breach of the Rambouillet accords. (1) Although humanitarian interventions had been mounted with United Nations Security Council approval (sometimes ex post facto) in the past, (2) this was the first conducted by "normatively mature" states without a mandate and in the face of opposition from a permanent Council member, Russia. (3)

Two years later, on September 11, al Qaeda operatives hijacked four commercial aircraft, flying two into the World Trade Center and one into the Pentagon. The fourth crashed in Pennsylvania after passengers courageously attempted to seize control from the terrorists. Nearly 3,000 individuals perished in the attacks. (4) The U.S. response was swill and aggressive. In less than a month, U.S. and British armed forces launched Operation Enduring Freedom against al Qaeda targets in Afghanistan, and against the Taliban, the de facto rulers of most of the country.

In terms of international law, Enduring Freedom charted new ground. Cooperative law enforcement was the generally accepted response paradigm for terrorism at the time of the September 11 attacks. The United States, however, treated the attacks as acts of war and replied militarily. (5) Moreover, not only did the United States strike al Qaeda targets, but it also attacked a regime that, although offering sanctuary to al Qaeda, had not provided the level of support theretofore legally necessary to justify military action against a State sponsor.

While operations continued in Afghanistan, attention turned to Iraq, which was in material breach of a number of United Nations Security Council resolutions regarding weapons of mass destruction and terrorism. The United States, inter alia, referred the matter to the Security Council, which, in November 2002, condemned Iraqi breaches, mandated a new inspection regime, and warned Iraq of "serious consequences" in the event of non-compliance. (6) When United Nations weapons inspectors concluded that Iraq was in non compliance, (7) the United States sought a Council use-of-force mandate. Although unsuccessful in securing one, (8) on 19 March 2003, the United States led a "coalition of the willing" in an invasion of Iraq. (9)

Formally, the legal justification for the attack relied on a series of Security Council resolutions stretching back over a decade to the first Gulf War, (10) the most important being Resolutions 678 (the use-of-force mandate, 1990) (11) and 687 (the cease-fire, 1991). (12) In addition to the official legalistic explanation, myriad other justifications surfaced from both Administration and academic sources: preemption of weapons of mass destruction proliferation, preemption of terrorism, humanitarian intervention, and regime change numbered among the most visible. (13) Yet again, the preexisting normative envelope appears to have been pushed. In particular, the United States presented the international community with an argument that it was appropriate for individual States to force Iraq into compliance with demands issued by a body that could not itself agree on the need for military action.

Since September 11, the United States and its coalition partners have also been conducting a "global war on terrorism" (GWOT). An illustrative GWOT operation occurred in 2002 when a CIA-controlled Predator drone attacked a car carrying Qaed Senyan al-Harthi, al Qaeda's senior operative in Yemen. (14) Consider the unique nature of that use of force. U.S. intelligence officers used military equipment to conduct a deadly attack in a country in which no armed conflict was underway, all with the cooperation of that country's intelligence service. Covert operations by intelligence agencies, even fatal ones, are hardly novel events. But in this case, the United States openly admitted carrying out the strike, arguing that such attacks are entirely appropriate in the global war on terrorism. Indeed, President Bush has signed a finding authorizing the Central Intelligence Agency to kill selected terrorists without further authorization when they cannot be captured. (15)

The decisions to use force in Yugoslavia, Afghanistan, Iraq, and the broader global war on terrorism amounted to a strategic choice by the United States to conduct operations that did not seem, at first glance, to fit neatly within existing boundaries of the jus ad bellum. To explore the trend, this article briefly outlines the U.S. vision of the international security milieu as set forth in official U.S. publications. It next describes the resultant security strategies developed by the United States to address prevailing security threats. The article concludes with a legal analysis of the more contentious elements contained in those strategies.

1. THE WORLD ACCORDING TO WASHINGTON

   With regard to the military perspective on the future, no document better expresses the U.S. Weltanschauung than the Joint Chiefs of Staff's Joint Vision 2020 (JV 2020). (16) Although issued in 2000, before the Bush Administration took office, JV 2020 continues to serve as the U.S. military's "conceptual template" for guiding transformation. (17) Because transformation strategy relates perceptions of future international threats to the resources available to meet them, it offers unique insight into those features of the security landscape that most drive U.S. strategic decision-making.

   Joint Vision 2020 assumes that the United States will remain a global power with global interests. (18) The military implication of worldwide engagement is a need to maintain the capability to "win" across the full range of military operations. (19) Yet, JV 2020 predicts that the U.S. military advantage will shrink as adversaries become better organized, more elusive, and more deadly. Those opponents, both States and non-State actors, will leverage the increasing affordability and accessibility of technology to narrow the current military gap between the U.S. and potential opponents. (20) As JV 2020 notes, "We should not expect opponents in 2020 to fight with strictly 'industrial age' tools." (21)

   The most significant characteristic of the evolving security environment is the likelihood that opponents will counter the United States' current conventional and nuclear advantages by adopting asymmetrical tactics and strategies. (22) Incapable of fielding armed forces that can match the U.S. military on the field of battle, adversaries will strike with unconventional weapons and against non-military targets. JV 2020 characterizes asymmetrical attack as the "most serious danger the United States faces in the immediate future," specifically singling out "long-range ballistic missiles and other direct threats to U.S. citizens and territory." (23) Its prescient warning is chilling in the aftermath of September 11.

   This strategic vision was amplified in the September 2001 Quadrennial Defense Review (QDR), the Defense Department's assessment of U.S. military capabilities to defend the country against external threats. (24) Although its underlying analysis was completed before the September 11 attacks, the QDR is striking in the extent to which its conclusions anticipated the security environment that emerged in the following two years.

   The QDR emphasizes that globalization contains the seeds not only of economic opportunity, but also of threat and vulnerability. (25) Travel and trade routes, for instance, facilitate direct attack against the U.S. homeland. (26) Similarly, globalization increases the number and accessibility of potential targets. (27) As an example, a strike against an overseas target, such as an oil production facility, could affect U.S. business as dramatically as an attack in the United States itself. Static defense of the hundreds of thousands of potential targets of significance to the United States worldwide is out of the question.

   Of particular concern, according to the QDR, is an arc of instability stretching from the Middle East to Northeast Asia. (28) This area contains a "volatile mix of rising and declining regional powers" and nations that are vulnerable to "overthrow by radical or extremist internal political forces or movements." (29) In the Middle East, "several states pose conventional military challenges and many seek to acquire--or have acquired--chemical, biological, radiological, nuclear, and enhanced high explosive (CBRNE) weapons." (30) The QDR highlights these States' development of ballistic missile capabilities and support for international terrorism. (31)

   QDR authors recognize that non-State actors, such as terrorists, pose a unique threat. (32) As demonstrated in Afghanistan, a weak and failing State can serve as a valuable base of operations for such groups, some of which operate autonomously, others with State support or sponsorship. Weak States also constitute fertile breeding ground for criminal activities, which in turn often finance terrorism. The QDR also echoes the Joint Chiefs' apprehension that the accessibility of affordable technology will inevitably dull the U.S. technological edge as adversaries integrate off-the-shelf technology into their weapons and forces. (33)

   Most significantly, the uncertainty inherent in these trends, as well as their synergistic interplay, finds expression in the QDR's warning of strategic surprise by American enemies and/or miscalculation by the United States. (34) Given CBRNE proliferation and transnational terrorism that seeks spectacular, high-casualty results, this vision of the security environment has dramatic strategic implications.

2. US SECURITY STRATEGIES

   In 2002 and 2003, the Bush...