preemptive war

Some Thoughts and Questions about Preemptive War

A reader named Bill K. offered some thoughts and questions about my post, “Preemptive War.” Bill’s offerings are reproduced below (in italics), followed by my responses (in bold).

On the one hand, it bothers me that one could read the UN charter, as you summarize, “to proceed to war only in the case of self defense, and then only until the UN had decided what to do about the situation.” With this in view, though your argument seems strong in demonstrating precedent in our government holding the US Constitution superior to the UN Charter, as a nation, we could find ourselves standing alone against world opinion should we act on what we know and are unwilling to divulge to others.

I am unperturbed by the prospect of “standing alone against world opinion.” I quote from my post, “Liberalism and Sovereignty“:

Americans — as a mostly undifferentiated mass — are disdained and hated by many foreigners (and by many an American “liberal”). The disdain and hatred arise from a variety of imperatives, ranging from pseudo-intellectual snobbery to nationalistic rivalry to anti-Western fanaticism. When those imperative lead to aggression (threatened or actual), that aggression is aimed at all of us: liberal, “liberal,” conservative, libertarian, bellicose, pacifistic, rational, and irrational.

Having grasped that reality, the Framers “did ordain and establish” the Constitution “in Order to . . . provide for the common defence” (among other things). That is to say, the Framers recognized the importance of establishing the United States as a sovereign state for limited and specified purposes, while preserving the sovereignty of its constituent States and their inhabitants for all other purposes.

If Americans do not mutually defend themselves through the sovereign state which was established for that purpose, who will? That is the question which liberals (both true and false) often fail to ask. Instead, they tend to propound internationalism for its own sake. It is a mindless internationalism, one that often disdains America’s sovereignty, and the defense thereof.

Mindless internationalism equates sovereignty with  jingoism, protectionism, militarism, and other deplorable “isms.” It ignores or denies the hard reality that Americans and their legitimate overseas interests are threatened by nationalistic rivalries and anti-Western fanaticism.

In the real world of powerful rivals and determined, resourceful fanatics, the benefits afforded Americans by our (somewhat eroded) constitutional contract — most notably the enjoyment of civil liberties, the blessings of  free markets and free trade, and the protections of a common defense — are inseparable from and dependent upon the sovereign power of the United States.  To cede that sovereignty for the sake of mindless internationalism is to risk the complete loss of the benefits promised by the Constitution.

Bill K. does not strike me as a “mindless” internationalist, but his worry about “world opinion” plays into the hands of that breed.

*   *   *

On the other hand, it also bothers me that your first summary point, “…to protect Americans’ liberty interests, broadly understood, by preventing a foreign state or entity from acquiring the means by which to attack… or… from deploying…” is a judgment call requiring reasonably accurate knowledge of both capabilities and intentions.As fallen men with imperfect knowledge and judgment, there is the possibility that we might make a mistake in proceeding with preemptive attack.

Mistakes cut both ways. Inaction could be a mistake. In the end, one has to rely on those charged with responsibility for national defense to execute that responsibility prudently. Although the parallel between preemptive war and capital punishment is inexact, I take the same attitude toward both, namely, that it is never a good idea to rule out in advance an option that might prove to be the best one, in certain circumstances.

*   *   *

It would seem to me that should the US preemptively attack Iran, we will face both reactions above – other nations disagreeing with our right to act preemptively, showing disgust in perhaps tangible ways, such as cancellation of treaty & trade agreements, as well as those within our own country who will demand to ‘see the evidence’ and ‘judge for ourselves’, resulting in internal strife, particularly if the preemption started a war requiring sustained effort.

I agree that the possibility of reactions by foreigners that could adversely affect Americans’ interests should be considered and weighed in taking a decision to wage preemptive war. But if the case for preemption is strong, the possibility of internal dissent should not make a difference. War will almost always yield dissent, and it will be vocal. So will a child’s dissent from just punishment be vocal.

*   *   *

[L]ooking at your necessary conditions in bullet points, the ones I have some disagreement with are points #1 & #5:

#1: “Undertaking to harm American’s interests through unilateral actions (e.g., shutting off a major supply of oil)” – Would you agree with me that this would be a necessary condition only if such a shut-off were likely to bring the US military to its knees, fuel-wise? That a substantial rise in the price of fuel would not be sufficient? I’d like to think that the US in such circumstances could well turn to other suppliers as well as develop its own reserves to counteract such a strategy without resorting to preemptive war.

To begin at the end, turning to other suppliers will not reverse a substantial rise in the price of oil, unless those suppliers are able to increase their rate of output dramatically. Further, existing transportation and pipeline systems must be able to accommodate the related geographic shifts in supply, without much delay.

If by “develop … reserves” Bill means that the federal government should buy and hold oil against the possibility of a cutoff, there is already the Strategic Petroleum Reserve. The development and maintenance of that reserve is costly, both in terms of outlays on facilities and their operation but also in terms of the effects of government purchases on the price of oil. It may be prudent to maintain the SPR so that U.S. military operations are not hampered by a sudden reduction in the output of foreign oil. But, for the reasons discussed, the SPR is no boon to the domestic consumers of oil.

If by “develop … reserves” Bill means that the federal government should encourage exploration and production in the United States and its littoral waters, good luck with that. On the one hand we have global-warming alarmists, environmental extremists, the not-in-my-back-yard mentality, the lobbies for the subsidization of “alternative fuels” and “renewable energy,” and their allies in the Democrat Party. On the other hand we have average Americans whose interests will continue to be sacrificed on the altar of sanctimony unless and until the Republican Party of Calvin Coolidge returns to power for a long time.

Returning to the beginning, I cannot agree that “a substantial rise in the price of fuel would not be sufficient” grounds for preemption. The circumstances leading to the substantial rise would indicate whether or not rise is aimed at coercing the U.S. government or severely damaging the American economy. If it seems clear that those responsible for the price rise have one or both aims in mind, then they will have effectively committed an act of war against the U.S. and its citizens. War is war, and it ought to be thought of as such, regardless of the means by which it is conducted. A military strike against the perpetrators might not be the best course of action; as I say in “Preemptive War,” preemption should be a last resort. But to eschew the use of force as a response to economic warfare is to invite it.

*   *   *

#5: “Otherwise engaging in a persistent course of provocative opposition…” Your examples of this behavior, Cuba, NK, USSR, with the exception of Saddam, are all examples that we have lived with and handled by other means (embargo, competitive military spending, foreign base agreements). Saddam was different because he embarked on conquest of an ally. Do you believe that should we decide to preemptively strike Iran, we should do so upon their assembly of a nuclear warhead, and attack NK at the same time? If we were to hold off on NK, given that they have demonstrated a test detonation, why so?

Context is important. What I say in “Preemptive War” is that

preemption is appropriate when several conditions are met. First, it must be clear that the target of preemption is an enemy of the United States. A foreign state or entity can be an enemy without having any immediate or specific plans to attack Americans or their interests. Thus a foreign state or entity can become an enemy by….

  • otherwise engaging in a persistent course of provocative opposition toward the United States, which opposition might consist of pronounced ideological enmity (as in the cases of Cuba and North Korea, for example), supporting efforts by third parties to harm the United States (as was the case with Saddam, doubters to the contrary), or engaging in efforts to harm the United States through economic or diplomatic machinations (as did the USSR during the Cold War).

Such conditions are necessary but not sufficient for preemption.

North Korea, despite its anti-Americanism and provocative behavior, is much less of a threat than Iran is to American interests. If a strike against Iran would stop or significantly delay its development of nuclear weapons, and if all other conditions for preemption were met, I would favor a preemptive strike on relevant Iranian facilities. As a reminder, here are the other (sufficient) conditions that I list in “Preemptive War”:

  • the failure of diplomatic efforts, which may include the United Nations but need not depend on the UN’s course of action (see the later discussion of treaty obligations)
  • the failure of economic sanctions and military threats
  • the likelihood that preemption would not cause a breakdown of diplomatic, military, or economic relations with foreign states, where such relations are important to the well-being of Americans
  • the prospect of a successful preemption, where the costs (in life, limb, and money) are judged to be less than the costs of failing to act
  • an open debate resulting in an authorization by Congress, where events do not require swift and even clandestine actions, which should be taken in accordance with the War Powers Resolution of 1973.

Preemptive War and Iran

My post, “Preemptive War,” is mainly a general argument for preemption, where American’s vital interests are at stake. But it was prompted by ” the imminent acquisition by Iran of material with which to produce nuclear weapons.”

The authors of “Why Obama Should Take Out Iran’s Nuclear Program” (Foreign Affairs, November 9, 2011) see the wisdom of preemption:

The November 8 International Atomic Energy Agency (IAEA) report casts further doubt on Iran’s continual claims that its nuclear program is intended solely for peaceful use….

…[T]he Obama administration has downplayed the findings of the new IAEA report, suggesting that a change in U.S. policy is unlikely. Yet this view underestimates the challenges that the United States would confront once Iran acquired nuclear weapons.

For example, the Obama administration should not discount the possibility of an Israeli-Iranian nuclear conflict….

Beyond regional nuclear war, Tehran’s acquisition of these weapons could be a catalyst for additional proliferation throughout the Middle East and beyond….

…Iran’s rivals for regional dominance, such as Turkey, Egypt, and Saudi Arabia, might seek their own nuclear devices to counterbalance Tehran. The road to acquiring nuclear weapons is generally a long and difficult one, but these nations might have shortcuts. Riyadh, for example, could exploit its close ties to Islamabad — which has a history of illicit proliferation and a rapidly expanding nuclear arsenal — to become a nuclear power almost overnight….

The closer Iran gets to acquiring nuclear weapons, the fewer options will be available to stop its progress. At the same time, Iran’s incentives to back down will only decrease as it approaches the nuclear threshold. Given these trends, the United States faces the difficult decision of using military force soon to prevent Iran from going nuclear, or living with a nuclear Iran and the regional fallout.

But the Obama administration — more accurately, Barack Obama — seems committed to a perverse foreign policy in the Middle East. This is from “Panetta Assures Iran It Has Little to Worry About” (Commentary, November 11, 2011):

If the leaders of the Iranian regime were worried about Jeffrey Goldberg’s prediction that Barack Obama would confound the world and launch a U.S. military strike designed to save Israel from nuclear destruction, they can now calm down. Secretary of Defense Leon Panetta made it crystal clear at a Pentagon news conference yesterday he has no intention of supporting an American attack on Iran’s nuclear facilities….

…But by publicly throwing cold water on the idea the United States is ready and able to militarily squash Iran’s nuclear ambitions, Panetta has sent a dangerous signal to Tehran that the Pentagon intends to veto any use of force against them. Combined with Russia’s pledge to block any further sanctions on Iran, the statement should leave the Khameini/Ahmadinejad regime feeling entirely secure as they push ahead to the moment when they can announce their first successful nuclear test.

This — combined with Obama’s dubious support of Israel, his unseemly withdrawal from Iraq, and his reluctant and easily reversed decision to “surge” in Afghanistan — confirms Obama’s position as the Jimmy Carter of the 21st century. Where is the next Ronald Reagan when we need him?

The “loss” of the Middle East and its relatively cheap oil would be a disaster for America’s economy. Further, it would leave an opening for an ambitious and increasingly powerful China.

Does Obama care about such things? Evidently not. He is too busy trying to remake the U.S. in the image of Europe: defenseless, bankrupt, and hostage to enviro-nuts.

See also “Some Thoughts and Questions about Preemptive War.”

Preemptive War

What should be done about the imminent acquisition by Iran of material with which to produce nuclear weapons? This is a question that the president of the United States and Congress must face because Iran’s possession of nuclear weapons will threaten vital U.S. interests in the Middle East, namely, access to about one-third of the world’s present output of oil. That alone — even if Iran would not strike U.S. allies in Europe or the U.S. itself — should cause the president and congressional leaders to entertain the possibility of a preemptive strike on the Iranian facilities that could produce material for nuclear weapons.

This is not a new subject, and my aim here is not to assess the chances of a successful strike or the political fallout from a strike, successful or not. I want to explore different aspects of preemption — aspects that, so far, have drawn relatively little attention — namely, its morality, the conditions under which it should occur, and its constitutionality.

A MORAL CASE FOR PREEMPTIVE WAR

Here is my argument, in brief:

1. Any sovereign nation (A) has the right to act preemptively against any other sovereign nation (B) to prevent B from harming the ability of A‘s citizens to enjoy liberty and its fruits. In fact, if A could afford to do so, and if it would serve the interests of A‘s citizens, A might act preemptively against B to prevent B from harming C‘s citizens because of the resulting harm to A‘s citizens.

2. If A‘s preemptive act results in A‘s violating its treaty obligations, A simply has put its reason for being above an obligation that was supposed to serve its reason for being, but which patently does not. A nation dedicated to liberty is obliged, first and foremost, to take the course of action that best serves its citizens’ liberty and their enjoyment of it.

You should note that harm (or prospective harm) is not just bodily harm. There is more to liberty than the preservation of life and limb. What are life and limb without the ability to own property and pursue happiness? Theft is a denial of liberty, no matter where the theft occurs, that is, whether it takes place in the U.S. or overseas? If it is not theft to disrupt America’s economy by force or threat of force, and to make Americans poorer by denying them (among others) access to oil pumped from the ground in Middle Eastern countries, then what is it?

The only other thing it can be called — with good reason — is an act of aggression against the liberty of Americans. If there is good reason to believe that the aggression will occur, if not prevented, then it is the duty of the American government to act preemptively to prevent the aggression and thus the harm that would flow from it.

Given the preceding, I cannot exempt any nation or foreign entity as a legitimate target of preemption. Nor can I rule out any form of action against Americans’ interests as a legitimate cause of preemption. Harm is harm; the question is how best to respond to the certain prospect of harm.

Now, if you remain opposed to preemption, you should ask yourself whether you are willing to acquiesce in the aims of a foreign entity. For, to believe that the United States should not act against aggression — except where the evidence of impending aggression is weak or doubtful — is tantamount to acquiescing in the aggression. I can see it no other way.

But, as outlined below, a decision to preempt should not be taken easily.

PREEMPTION IN PRACTICE

Criteria for Preemption

The case for preemption must be met by answering six questions:

1. What is the object of preemption?

2. Who can be the target of preemption?

3. When is preemption the appropriate course of action?

4. Must preemption be limited to a “proportional” response?

5. Do treaty obligations trump preemption?

6. Is preemption unconstitutional?

What Is the Object of Preemption?

The object of preemption must be to prevent a foreign state or entity from acquiring or deploying the means of attacking Americans’ liberty interests, as discussed above, where the foreign entity’s behavior clearly indicates that an attack is almost certain to follow from said acquisition or deployment.

Who Can Be a Target of Preemption?

Does that formulation mean, for example, that the United States should act preemptively if good intelligence indicates that (a) the Saudi regime is about to drastically curtail oil production, (b) a terrorist organization has co-opted the Saudi regime, or (c) the terrorist organization is about to launch a massive attack on Saudi oil facilities?

The first scenario might lead to preemption, if certain other conditions are met, as discussed below.

The second and third scenarios would almost certainly warrant preemption because of the potential harm to the well-being of Americans. It is one thing if Americans lose jobs and income through the normal fluctuations of the business cycle. It is another thing, entirely, if Americans are likely to lose jobs and income because of what would amount to an act of aggression by a foreign enemy. If we would not stand for the sabotage of oil refineries on American soil, why would we contemplate the sabotage of overseas facilities that provide oil which is refined in the United States?

Americans are not “entitled” to oil. But they are entitled to ply trade with willing partners who provide oil. The principle applies to any product or service. The question is not whether the United States might legitimately conduct preemptive operations in defense of free trade, but under what circumstances such operations are warranted.

When Is Preemption the Appropriate Course of Action?

Given the foregoing, preemption is appropriate when several conditions are met. First, it must be clear that the target of preemption is an enemy of the United States. A foreign state or entity can be an enemy without having any immediate or specific plans to attack Americans or their interests. Thus a foreign state or entity can become an enemy by

  • undertaking to harm Americans’ interests through unilateral actions (e.g., shutting off a major supply of oil)
  • threatening or attacking allies of the United States upon whom we depend for trade (e.g., Iraq in 1990)
  • threatening or attacking nations whose defeat might jeopardize the security of the United States (e.g., Hitler’s declaration of war on Great Britain in 1939)
  • threatening or attacking overseas areas of strategic importance to the United States (e.g., the oil fields of the Middle East or South America, the Suez or Panama Canal)
  • developing, or planning to develop, the wherewithal to acquire weapons that could enable an attack the United States, harm Americans’ interests, attack our allies, or attack strategically important nations or strategic areas
  • otherwise engaging in a persistent course of provocative opposition toward the United States, which opposition might consist of pronounced ideological enmity (as in the cases of Cuba and North Korea, for example), supporting efforts by third parties to harm the United States (as was the case with Saddam, doubters to the contrary), or engaging in efforts to harm the United States through economic or diplomatic machinations (as did the USSR during the Cold War).

Such conditions are necessary but not sufficient for preemption. Sufficient conditions are:

  • the failure of diplomatic efforts, which may include the United Nations but need not depend on the UN’s course of action (see the later discussion of treaty obligations)
  • the failure of economic sanctions and military threats
  • the likelihood that preemption would not cause a breakdown of diplomatic, military, or economic relations with foreign states, where such relations are important to the well-being of Americans
  • the prospect of a successful preemption, where the costs (in life, limb, and money) are judged to be less than the costs of failing to act
  • an open debate resulting in an authorization by Congress, where events do not require swift and even clandestine actions, which should be taken in accordance with the War Powers Resolution of 1973.

Must Preemption Be Limited to a “Proportional” Response?

Preemption should be limited to the military means necessary to accomplish the object of preemption, no more and no less. No more because excessive force can harm the standing of the United States with its allies others upon whom it might depend for moral and military support in future contingencies. No less because failure or perceived failure (as in Vietnam, Lebanon, Somalia, and Gulf War I) can embolden enemies and potential enemies to act against Americans’ interests.

Do Treaty Obligations or the Constitution Trump Preemption? (Iraq as a Case Study)

Opponents of the war in Iraq argued, among other things, that the war was illegal because the United States was not acting under a resolution of the United Nations that specifically authorized the war. That argument hinged on a reading of certain provisions of the U.S. Constitution and the UN Charter. First, there is Article VI, Clause 2, of the Constitution, which says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Then there are these provisions of the UN Charter:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (Article 2, Clause 3)

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. (Article 39)

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (Article 51)

All of which has been read to say this: Treaty obligations are legally binding on the United States. Our treaty obligations under the UN Charter therefore required us to proceed to war only in the case of self defense, and then only until the UN had decided what to do about the situation.

On the other hand, there is Article II, Section 1, of the UN Charter, which states that the UN “is based on the principle of the sovereign equality of all its Members.” From that principle comes the authorization for the invasion of Iraq (Public Law 107-243, 16 October 2002):

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION. –The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to –

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

(b) PRESIDENTIAL DETERMINATION. — In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that –

(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq. . . .

The Security Council resolutions referred to are those that had been passed in the years preceding the invasion of Iraq. It is clear that PL 107-243 contemplated military action without a further, authorizing UN resolution.

Absent PL 107-243 the invasion of Iraq might be found illegitimate under the doctrine enunciated by Chief Justice Marshall in The Nereide (13 U.S. [9 Cranch] 388, 422, 3 L. Ed. 769 [1815]), that in the absence of a congressional enactment, United States courts are “bound by the law of nations, which is a part of the law of the land.” But there was a congressional enactment in the case of Gulf War II. Therefore, under the Constitution, the issue of the legitimacy of the invasion of Iraq or any other preemptive act authorized by Congress becomes a political question.

A legal challenge of the legitimacy of the PL 107-243 (Doe v. Bush) was rebuffed, first by the U.S. District Court for the District of Massachusetts in a summary judgment, then by the U.S. Court of Appeals for the First Circuit after hearing arguments from both parties. It was evident by the date of the appellate court’s opinion (March 13, 2003) that President Bush was on a course to invade Iraq without a specific authorizing resolution by the UN Security Council (the pre-invasion air bombardment began on March 20, 2003). The appellate court nevertheless ducked the issue of the war’s legitimacy under the UN Charter, claiming that that issue was not yet “ripe” for adjudication. The concluding language of the court’s opinion suggests, however, that the judicial branch is unlikely to rule on the legitimacy of military action unless such action is the subject of a dispute between the legislative and executive branches:

In this zone of shared congressional and presidential responsibility [for war-making], courts should intervene only when the dispute is clearly framed…. Nor is there clear evidence of congressional abandonment of the authority to declare war to the President. To the contrary, Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade…. Finally, the text of the October Resolution itself spells out justifications for a war and frames itself as an “authorization” of such a war.

It is true that “courts possess power to review either legislative or executive action that transgresses identifiable textual limits” on constitutional power…. But courts are rightly hesitant to second-guess the form or means by which the coequal political branches choose to exercise their textually committed constitutional powers…. As the circumstances presented here do not warrant judicial intervention, the appropriate recourse for those who oppose war with Iraq lies with the political branches.

Similar formulations can be found in Dellums v. Bush, 752 F. Supp. (D.C. Cir. 1990), and Goldwater v. Carter, 444 U.S. 996 (1979).

More about the Constitutionality of Preemption

I begin with Mr. Justice Black, writing for the U.S. Supreme Court in Reid v. Covert (1957):

Article VI, the Supremacy Clause of the Constitution, declares:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;… .”

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result….

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

“The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.”

In sum, a treaty (such as the UN Charter) may neither violate nor change the meaning of the Constitution. The UN, in other words, may not in any way usurp the authority of Congress (or the president) to decide when and in what circumstances the U.S. goes to war.

As long as Congress and the president have agreed a course of action, as in the case of the preemptive invasion of Iraq, U.S. courts are unlikely to rule that a preemptive military operation is illegitimate under the Constitution. Whether such an operation is illegitimate in the minds of its opponents or in the councils of the United Nations should be irrelevant to those who care about the liberty of Americans.

The decision to preempt is a political judgment in which Congress puts America’s sovereignty and the protection of Americans’ interests above putative treaty obligations. It seems unlikely that a court (the U.S. Supreme Court, in particular) would find that the constitutional grant of power to declare war, which is so fundamental to America’s sovereignty and to the protection of Americans’ interests, can be ceded by treaty to an international body that cannot be relied upon to protect our sovereignty and our interests.

SUMMARY

Preemptive war is morally justified if it serves to protect the interests of Americans. But preemptive war is not to be undertaken without careful consideration of its necessity, costs, and consequences. Any specific act of preemption must pass a five-fold test:

1. The object must be to protect Americans’ liberty interests, broadly understood, by preventing a foreign state or entity from acquiring the means by which to attack Americans’ those interests, or to prevent the state or entity from deploying those means if it already has acquired them.

2. The sovereignty and legitimacy of the target of preemption are irrelevant, ultimately, though such considerations should influence our willingness to strive for a diplomatic and/or economic solution.

3. Preemption should be a last resort, following our good-faith efforts toward finding a diplomatic and/or economic solution, and only then after an open debate in which the likely costs and benefits of preemption are weighed.

4. Preemptive military operations should not be undertaken unless there is a good certainty of success. Failure could prove to be more costly, in the long, run than inaction.

5. A preemptive operation must be carried out in accordance with the War Powers Resolution of 1973. But treaty obligations cannot trump America’s sovereign right to wage war for the protection of Americans’ liberty interests.

See also “Some Thoughts and Questions about Preemptive War” and “Preemptive War and Iran.”

Transnationalism and National Defense

Ed Whelan of Bench Memos explains:

“Transnationalism” challenges the traditional American understanding that … “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.” Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.

Transnationalism is a manifestation of an attitude that seems to prevail among leftists and extreme libertarians. Such types advocate a kind of international legal order in which acts of aggression against Americans cannot be answered or avenged except through the observance of legal niceties. As if there are international tribunals that would dispense even-handed judgments where the U.S. is concerned. As if our enemies could be counted on to observe international laws against aggression.

This benighted attitude is found in this post by Don Boudreaux, an otherwise sensible libertarian:

One of the great tenets of liberalism — the true sort of liberalism, not the dirigiste ignorance that today, in English-speaking countries, flatters itself unjustifiably with that term — is that no human being is less worthy just because he or she is outside of a particular group.  Any randomly chosen stranger from Cairo or Cancun has as much claim on my sympathies and my respect and my regard as does any randomly chosen person from Charlottesville or Chicago.

The problem with such sentiments — correct as they may be — is the implication that we have nothing more to fear from people of foreign lands than we have to fear from our own friends and neighbors. Yet, as Boudreaux himself acknowledges,

[t]he liberal is fully aware that such sentiments [about “us” being different from “them”] are rooted in humans’ evolved psychology, and so are not easily cast off.  But the liberal does his or her best to rise above those atavistic sentiments,

Yes, the liberal does strive to rise above such sentiments, but not everyone else makes the same effort, as Boudreaux admits. Therein lies the problem.

Transnationalists equate sovereignty with  jingoism, protectionism, militarism, and other deplorable “isms.” Transnationalists ignore or deny the hard reality that Americans and their legitimate overseas interests are threatened by nationalistic rivals and anti-Western fanatics.

In the real world of powerful rivals and determined, resourceful fanatics, the benefits afforded Americans by our (somewhat eroded) constitutional contract — most notably the enjoyment of civil liberties, the blessings of  free markets and free trade, and the protections of a common defense — are inseparable from and dependent upon the sovereign power of the United States.  To cede that sovereignty for the sake of transnationalism is to risk the complete loss of the benefits promised by the Constitution.

It is for those reasons that I reject and despise leftists and extreme libertarians who have used the recent, justified, and laudable execution of Osama bin Laden as an occasion for spewing their venom. Noam Chomsky exemplifies the left’s moral relativism:

We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic.

Jeffrey Tucker exemplifies loony anarcho-capitalism:

I have some vague sense that many people are opposed to capital punishment, and for good reason, and especially when there is no trial and conviction, and yet we are expected uncritically to celebrate the death of Bin Laden at the hands of the U.S. state.

What Chomsky, Tucker, and their ilk have in common is their status as cosseted intellectuals who benefit from the existence of the very state that they profess to abhor. I have little doubt of the fate that would befall them should they venture into the wrong part of the world without a retinue of SEALs to protect them from what passes for “justice” among the savages.

Related posts:
Libertarians and the Common Defense
Libertarianism and Pre-emptive War: Part I
An Aside about Libertarianism and the War
Right On! For Libertarian Hawks Only
Conservative Criticism of the War on Terror
Why Sovereignty?
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Defense, Anarcho-Capitalist Style
The Illogic of Knee-Jerk Civil Liberties Advocates
War Can Be the Answer
Getting It All Wrong about the Risk of Terrorism
Conservative Revisionism, Conservative Backlash, or Conservative Righteousness?
Why We Fight
Getting It Almost Right about Iraq
Philosophical Obtuseness
But Wouldn’t Warlords Take Over?
Sorting Out the Libertarian Hawks and Doves
Now, Let’s Talk About Something Else
Shall We All Hang Separately?
Foxhole Rats
Foxhole Rats, Redux
Know Thine Enemy
September 11: A Remembrance
September 11: A Postscript for “Peace Lovers”
The Faces of Appeasement
Libertarianism and Preemptive War: Part II
Torture and Morality
Give Me Liberty or Give Me Non-Aggression?
We Have Met the Enemy . . .
My View of Warlordism, Seconded
Whose Liberties Are We Fighting For?
The Constitution and Warrantless “Eavesdropping”
NSA “Eavesdropping”: The Last Word (from Me)
Privacy, Security, and Electronic Surveillance
Privacy: Variations on the Theme of Liberty
Words for the Unwise
More Foxhole Rats
The Fatal Naïveté of Anarcho-Libertarianism
Final (?) Words about Preemption and the Constitution
Anarcho-Libertarian “Stretching”
Recommended Reading about NSA’s Surveillance Program
Riots, Culture, and the Final Showdown
A Rant about Torture
More Final (?) Words about Preemption and the Constitution
QandO Saved Me the Trouble
What If We Lose?
A Footnote about “Eavesdropping”
Thomas Woods and War
More than Enough Amateur Critics
Moussaoui and “White Guilt”
Jihad in Canada
In Defense of Ann Coulter
In Which I Reply to the Executive Editor of The New York Times
Post-Americans and Their Progeny
“Peace for Our Time”
Anti-Bush or Pro-Treason?
“Proportionate Response” in Perspective
Parsing Peace
Taking on Torture
Conspiracy Theorists’ Cousins
Not Enough Boots
Defense as the Ultimate Social Service
I Have an Idea
September 11: Five Years On
How to View Defense Spending
Reaching the Limit?
The Best Defense . . .
A Skewed Perspective on Terrorism
Terrorists’ “Rights” and the Military Commissions Act of 2006
More Stupidity from Cato
The Military Commissions Act of 2006
A Critique of Extreme Libertarianism
And Your Point Is?
Anarchistic Balderdash
Not Enough Boots: The Why of It
Blood for Oil

Katie Couric: Post-American
It *Is* the Oil
Here We Go Again
Christmas in Iran: Foreign Affairs According to Planet Rockwell
Torture, Revisited
Waterboarding, Torture, and Defense
9/11 Plotters and the Death Penalty
Cato’s Usual Casuistry on Matters of War and Peace
The Media, the Left, and War
Torture
September 11: A Remembrance
The “Predator War” and Self-Defense
The National Psyche and Foreign Wars
Inside-Outside
A Moralist’s Moral Blindness
The Folly of Pacifism
Why We Should (and Should Not) Fight

Why We Should (and Should Not) Fight

G.W. Bush’s decision to invade Iraq and overthrow Saddam Hussein — a decision that was approved by Congress — was justified on several grounds. One of those grounds was a humanitarian consideration: Saddam’s record as a brutally oppressive dictator.

But humanitarian acts have nothing to do with the interests of Americans, except for the mistaken belief that the “rest of the world” (presumably including our enemies and potential enemies) will think better of the United States for such acts. The belief, as I say, is mistaken. Our foreign enemies and potential enemies see such things as evidence of American softness, when they do not see them as ways of obtaining U.S. weapons for future use against American interests. Our foreign “friends” (the sneer is well-advised) see the humanitarian acts of the U.S. government as one, two, or all of the following: (a) substitutes for their own humanitarian acts, which may accordingly be curtailed or withheld, (b) evidence of America’s “imperial” aims, and (c) evidence of the willingness of Americans to expend lives and treasure, sometimes in vain, for elusive or illusory objectives.

From the point of view of American taxpayers, the commission of humanitarian acts by the U.S. government is almost always and certainly a waste of money. (I have elsewhere discussed and dismissed the proposition that such acts are morally superior to the alternative of letting taxpayers decide how best to use their money.)  It follows that now military operation can or should be justified solely on the basis of humanitarianism. And yet, that is the essential justification of Obama’s adventure in Libya.

Were Obama to come right out and say that our military involvement in Libya is really aimed at ensuring a continuous flow of petroleum from that country’s wells, refineries, and ports, he would be accused of waging a campaign of “blood for oil.” That, of course, was a leftist rallying cry against Bush’s invasion of Iraq, and Obama — as a man of the left and opponent of the Iraq war — does not want to be painted with the same brush.

Bush, too, sought to avoid the taint of “blood for oil.” But, in reality, it was in the interest of the U.S. (and other nations) to restore the flow of Iraqi oil to (or above) the rate attained before the imposition of UN sanctions.

Nevertheless, political discourse has become so mealy-mouthed since the end of World War II that no American politician dare speak of an economic motivation for the use of military force. And so, American politicians must adopt the language of hypocrisy, cant, and political correctness to justify acts that are either (a) unjustifiable because they are purely humanitarian or (b) fully justifiable as being in the interest of Americans, period.

In sum, American armed forces should be used only to preserve, protect, and defend the interests of Americans. To that end, American armed forces certainly may be used preemptively as well as reactively. And as long as it remains economically advantageous for Americans to import oil from other countries, it will be a legitimate use of American armed forces to defend those imports — at the source and every step of the way to this country. I would say the same about any resource whose importation is vital to the well-being of Americans.

The decision whether to use force to protect Americans and their interests, in any given instance, requires a judgment as to the likely costs, benefits, and success of the venture. For practical purposes, it is the president who makes that judgment, but he is ill-advised to commit armed forces without the backing of Congress. When armed forces have been committed, they should remain committed until the objective has been met, unless it becomes clear — to the president and Congress, the media and protesters to the contrary — that the objective cannot be met without incurring unacceptable costs.

A reversal of course sends a very strong signal to our enemies and potential enemies that America’s leadership is unwilling to do what it takes to protect Americans and their interests. Such a signal, of course, makes all the more likely that someone will act against Americans and their interests.

All of that said, I come to the following conclusions about current military engagements involving American armed forces:

  • Iraq was worth the effort, assuming that a post-withdrawal Iraq remains a relatively stable, oil-producing nation in the midst of surrounding turmoil.
  • Afghanistan is worth only the effort required to destroy its usefulness as an al Qaeda base. If that cannot be achieved, the large-scale U.S. presence in Afghanistan should be scaled back to a special operations force dedicated solely to the detection and destruction of al Qaeda facilities and personnel.
  • Libya is worth only the effort required to ensure that it remains a major oil-exporting nation. Aiding the Libyan rebels is likely to backfire because of the strong possibility that al Qaeda or its ilk will emerge triumphant in a rebel-led post-Gaddifi regime (as seems to be the case in Egypt’s post-Mubarak regime). Given that possibility, the U.S. government should withdraw all support of the NATO operation, with the aim of (a) bringing about the end of that operation or (b) forcing a “willing coalition” of European nations to do what it takes to ensure that a post-Gaddafi regime is no worse than neutral toward the West.

Earlier wars are treated here.

Related posts:
Libertarian Nay-Saying on Foreign and Defense Policy
Libertarianism and Preemptive War: Part I
Right On! For Libertarian Hawks Only
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Sorting Out the Libertarian Hawks and Doves
Libertarianism and Preemptive War: Part II
Give Me Liberty or Give Me Non-Aggression?
More Final(?) Words about Preemption and the Constitution
Thomas Woods and War
“Peace for Our Time”
How to View Defense Spending
More Stupidity from Cato
Anarchistic Balderdash
Cato’s Usual Casuistry on Matters of War and Peace
A Point of Agreement
The Unreality of Objectivism
A Grand Strategy for the United States
The Folly of Pacifism

Getting it Wrong and Right about Iran

Jeffrey Miron, an economist who graces the halls of Harvard University and Cato Institute, has a new blog, Libertarianism from A to Z. There, Miron mirrors Cato’s approach to policy issues, taking a free-market line on economic affairs and a knee-jerk isolationist line on defense matters. Consider this passage from Miron’s post, “Iran: Engagement, Sanctions, or Nothing?“:

Let’s take as given that, other things equal, it is in the world’s interest that Iran not possess nuclear weapons. . . . Then the following propositions all seem plausible:

1. Continued engagement just allows Iran to continue developing its nuclear capabilites.

2. Sanctions might slow Iran’s nuclear development a bit, but since both Russia and China are not really on board with sanctions, this effect will be minimal. (UPDATE: Miron, in a later post, has more to say about the essential futility of sanctions.)

3. Military action to destory the Iranian nuclear capabilities will address the issue in the short term, but Iran will just start over. Plus, such military action might escalate into something far more costly.

Faced with these choices, my vote is to do nothing.

Note the glaring contradiction. Miron postulates that it is not in the world’s interest for Iran to possess nuclear weapons, but he prefers to do nothing about it. If it is not in the world’s interest for Iran to have nuclear weapons, then something ought to be done about it — and I don’t mean having a “serious, meaningful dialogue” with Iran, as our “glorious leader” proposes.

The time to deal with a serious threat is before it becomes an imminent one. So what if Iran might “start over” if we and/or Israel destroy its nuclear capabilities? Here, from DEBKAfile, is a realistic take:

Defense secretary Robert Gates hit the nail on the head when he said Friday: “The reality is there is no military option that does anything more than buy time. The estimates are one to three years or so.” . . .

The answer to this argument is simple: It is exactly this approach which gave Iran 11 quiet years to develop its weapons capacity. For Israel and Middle East, a three-year setback is a very long time, a security boon worth great risk, because a) It would be a happy respite from the dark clouds hanging over the country from Iran and also cut back Hamas and Hizballah terrorist capabilities, and b) In the volatile Middle East anything can happen in 36 months. (Emphasis added.)

What’s missing from Miron’s analysis of the situation is an assessment of the consequences (i.e., costs) of allowing Iran to proceed. That’s a strange omission for an economist, an omission which suggests that Miron, like many another libertarian, “adheres to the [non-aggression] principle with deranged fervor.”

Well, evidently it takes a law professor (Tom Smith of The Right Coast) to get it right:

A nutcase regime in Asia is about to get nuclear weapons and not long after that the missiles to send them to Israel, Europe, Saudi Arabia and after that, who knows. The regime is populated by religious fanatics who deny the Holocaust and profess the desire to wipe Israel off the map in all apparent sincerity. Normally, one could rely on the Israelis to take care of themselves, but in this case, the crazed regime has gotten too powerful for the Israelis to handle. Just to fill out the picture, the folks building the nukes just stole an election and are imprisoning, torturing and killing into silence their domestic critics. These leaders are backed up by a praetorian guard of fanatics, a Waffen-SS if you will, to switch to another entirely appropriate comparison, on whose secret bases (for what is a geopolitical villain without secret bases?) the nuclear weapons are being gestated.

So who ya gonna call? Obviously, patently, indisputably the only people who can stand up to these frightening thugs are us. But as luck would have it, we are presently governed by the party who strategy is to talk to death the people whose idea of dialog is to throw their opponents in prison and beat them with hoses until they change their minds.

What will happen if the U.S. continues to muddle along in a Chamberlainesque fashion? For starters, this:

By now, Iran has used the gift of time to process enough enriched uranium to fuel two nuclear bombs and is able to produce another two per year.

Its advanced medium-range missiles will be ready to deliver nuclear warheads by next year.

Detonators for nuclear bombs are in production at two secret sites.

And finally, a second secret uranium enrichment plant – subject of the stern warning issued collectively in Pittsburgh Friday by Obama, French president Nicolas Sarkozy and British premier Gordon Brown – has come to light, buried under a mountain near Qom. Its discovery doubles – at least – all previous estimates of Iran’s nuclear capabilities.

The price of a pre-emptive attack on Iran might be high, but the price of inaction will be even higher. Legitimate U.S. interests in the Middle East (i.e., access to oil) will be threatened by a regime that has proceeded thus far in the face of sanctions and is unlikely to be fazed by more sanctions. The economic hardships caused by the “oil shocks” of the 1970s will be as nothing compared with the hardships caused by Iranian dominance of the Middle East.

Where will Western Europe, Russia, and China be in our hour of need? Western Europe will be busy emulating Vichy France, in the hope that its obseqiousness toward Iran is rewarded by dribbles of oil. Russia and China will actively support Iran (covertly if not overtly), in the expectation of profiting from higher prices on the oil they sell to Western Europe and the United States. Eventually, Russia and China will exploit the inevitable decline of American military power, as our defense budget disappears into the maw of Obamacare, Medicare, Medicaid, Social Security, and other misbegotten ventures.

It should be clear to anyone who thinks seriously about the state of the world that the time to act against Iran was years ago. That opportunity having passed, now will have to do. The Obama-ish left will cry “no blood for oil,” but the burden should be on the left to offer affordable alternatives to Middle Eastern oil in lieu of war. If the left cannot offer affordable alternatives, the left’s low-to-moderate income constituencies are likely to suffer disproportionately when Iran begins to squeeze the West, and — surely — the elite left does not want that to happen. (Actually, the elite left couldn’t care less about lesser mortals, as long as the elitist agenda of political and environmental correctness becomes writ.)

The rub is that the  left cannot offer affordable alternatives without relaxing its embrace of radical environmentalism. The left has thus far decried “dependence” on foreign oil as an excuse to pour money into ethanol, wind power, and solar energy — none of which is a viable alternative to oil. And, of course, the left opposes feasible and relatively efficient alternatives, such as nuclear energy, coal-fired power plants, drilling in ANWR, and additional off-shore drilling. That leaves us with no choice but to import a lot of oil, much of it from the Middle East. But the left is loath to defend our interests there.

The left’s irreconcilable positions with respect to Iran, oil, and the environment — like the left’s positions on so many other issues — epitomize the “unconstrained vision” of which Thomas Sowell writes. The left, like Alice in Wonderland, likes to believe in “six impossible things before breakfast,” and all the rest of the day, as well.

We are now at a point in history similar to that of England in 1935. If England had begun to rearm then, Hitler might have been deterred or — if not deterred — defeated sooner. Doing nothing, as Miron and his libertarian and leftist brethren would prefer, is a prescription for eventual economic disaster or a longer, bloodier war than is necessary.

P.S. Tom Smith says it all, far more vividly and vigorously.

P.P.S. Two relevant items, here and here.

Related posts:
Not Enough Boots
Defense as the Ultimate Social Service
I Have an Idea
The Price of Liberty
How to View Defense Spending
The Best Defense…
Not Enough Boots: The Why of It
Liberalism and Sovereignty
Cato’s Usual Casuistry on Matters of War and Peace
The Media, the Left, and War
A Point of Agreement
The Folly of Nuclear Disarmament