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.”