Bellicosity or Bargaining Strategy?

Yesterday, George Will doubled down on his previous invocation of the Nuremberg Trials. The first time, on December 8, Will opined that

[a] U.S. war of choice against North Korea would not be a pre emptive war launched to forestall an imminent attack. Rather, it would be a preventive war supposedly justified by the fact that, given sophisticated weapons and delivery systems, imminence might be impossible to detect….

It would be interesting to hear the president distinguish a preventive war against North Korea from a war of aggression. The first two counts in the indictments at the 1946 Nuremberg trials concerned waging “aggressive war.”

Now that John Bolton has been named Trump’s new national-security adviser, Will has again come off his hinges. This is from yesterday’s piece:

Bolton will soon be the second-most dangerous American. On April 9, he will be the first national security adviser who, upon taking up residence down the hall from the Oval Office, will be suggesting that the United States should seriously consider embarking on war crimes.

The first two charges against the major Nazi war criminals in the 1945-1946 Nuremberg trials concerned waging aggressive war. Emboldened by the success, as he still sees it, of America’s Iraq adventure that began 15 years ago this month, Bolton, for whom a trade war with many friends and foes is insufficiently stimulating, favors real wars against North Korea and Iran. Both have odious regimes, but neither can credibly be said to be threatening an imminent attack against the United States. Nevertheless, Bolton thinks bombing both might make the world safer….

Bolton’s belief in the U.S. power to make the world behave and eat its broccoli reflects what has been called “narcissistic policy disorder” — the belief that whatever happens in the world happens because of something the United States did or did not do. This is a recipe for diplomatic delusions and military overreaching.

Speaking of delusions, one died last week — the belief that this president could be safely cocooned within layers of adult supervision. Bolton’s predecessor, H.R. McMaster, wrote a brilliant book (“Dereliction of Duty”) on the failure of officials, particularly military leaders, who knew better but did not resist the stumble into the Vietnam disaster. McMaster is being replaced because he would have done his duty regarding the impulses of the most dangerous American.

Regarding Nuremberg, I wrote this on December 10:

The counts [in the indictments at the Nuremberg trial] refer to the aggression against Poland. There is no parallel between Poland, with its relatively primitive armed forces and lack of bellicosity, and Kim Jong-un’s North Korea….

Will himself has questioned the legality of the Nuremberg trials. It was an act of intellectual desperation to bring them into the discussion.

All in all, Will’s recent column is weak on the facts and weak as a matter of historical analysis. The main impetus for the column seems to be Will’s fixation on Trump. His doubts about Trump’s stability and soundness of judgment may be justified. But Will ought to have stuck to those doubts, and elaborated on them.

Will’s armchair psychologizing of Bolton (“narcissistic policy disorder”) is backwards. Bolton’s record — as I read it — is that of a person who wants the world to leave the U.S. alone, not that of someone who believes that whatever happens in the world is a consequence of something the United States did or did not do.

Will’s endorsement of McMaster’s Dereliction of Duty is misplaced. As I say here,

McMaster was derelict in his duty to give a full and honest account of the role of the service chiefs in the early stages of the Vietnam War.

The book’s focus is on the political-military machinations of November 1963 to July 1965. Most of the book is taken up with a detailed (almost monotonous) chronological narrative….

In the narrative and subsequent analysis, LBJ and McNamara come across as the real heavies, which is what I thought of them at the time….

Though McMaster goes into great detail about people and events, there’s nothing really new (to me), except for the revelation that the chiefs were supine — at least through July 1965. LBJ’s deviousness and focus on the election and his domestic programs is unsurprising. McNamara’s arrogance and rejection of the chiefs’ views is unsurprising. Service parochialism is unsurprising. The lack of a commitment by LBJ and McNamara to winning the war and devising a requisite strategy are unsurprising.

But there was something at the back of my mind when I was reading Dereliction of Duty which told me that the chiefs weren’t as negligent as McMaster paints them. It has since come to the front of my mind. McMaster’s narrative ends in July 1965, and he bases his conclusions on events up until then. However, there was a showdown between the chiefs and LBJ in November 1965. As recounted by Lt. Gen. Charles Cooper, USMC (Ret.), who was a junior officer at the time (and present at the showdown), “the chiefs did their duty.”

… Cooper’s story … is drawn from his memoir, Cheers and Tears: A Marine’s Story of Combat in Peace and War (2002)…. [Go here for a long, relevant excerpt.]

Will has nevertheless raised a question that is on the minds of many these days: Does the appointment of John Bolton, coupled with the replacement of Rex Tillerson by Mike Pompeo at the State Department, signal a change in Trump’s attitude toward involvement in foreign wars? Specifically, is Trump assembling a “war cabinet”, as several (left-wing) sources claim?

A much more likely scenario is that Trump is doing something that Barack Obama failed to do in his zeal to “lead from behind”, which is to say, in his zeal to undermine America’s strength vis-a-vis its actual and potential adversaries: Russia, China, Iran, and North Korea (to name a few). (I still maintain that Obama was guilty of “Presidential Treason“.)

Of course, it is risky to confront one’s enemies instead of lying supine before them. But it is no more risky than being kicked to death while one is lying supine. In fact, it is less risky because the upright warrior can do something to deter his enemies, or fight them if necessary; the supine warrior only invites abuse.

What I see, then, is the adoption by Mr. Trump of an upright stance — backed by a resolve that is made all the more credible by surrounding himself with men like Pompeo and Bolton.


Related reading: Roger Kimball, “Why John Bolton Is No Warmonger“, Spectator USA, March 24, 2018


Related posts:
Much Ado about Civilian Control of the Military
Presidents and War
LBJ’s Dereliction of Duty
Terrorism Isn’t an Accident
The Ken Burns Apology Tour Continues
Planning for the Last War
The Folly of Pacifism
A Rearview Look at the Invasion of Iraq and the War on Terror
Preemptive War Revisited

Today’s Lesson in Economics: How to Think about War

David Henderson writes at EconLog about “Noah Smith on the Islamic Civil War“:

Noah Smith has a beautifully numerate discussion of wars being fought by radical Muslims. He does it in the context of analyzing Trump advisor Steve Bannon, and that analysis is not bad.

But what really struck me was his response to this claim of Bannon:

[I]t’s a very unpleasant topic, but we are in an outright war against jihadist Islamic fascism. And this war is, I think, metastasizing far quicker than governments can handle it…
. . .I believe you should take a very, very, very aggressive stance against radical Islam…If you look back at the long history of the Judeo-Christian West struggle against Islam, I believe that our forefathers kept their stance, and I think they did the right thing. I think they kept it out of the world, whether it was at Vienna, or Tours, or other places… It bequeathed to use [sic] the great institution that is the church of the West.

Smith then reports on the numbers on deaths from some Islamic groups fighting others. H writes:

Let’s look at the main wars currently being fought by radical Islamic forces. These are:Syrian Civil War (~470,000 dead)
2nd Iraqi Civil War (~56,000 dead)
Boko Haram Insurgency (~28,000 dead)
War in Afghanistan (126,000 dead)
Somali Civil War (~500,000 dead)
War in Northwest Pakistan (~60,000 dead)
Libyan Civil War (~14,000 dead)
Yemeni Civil War (~11,000 dead)
Sinai Insurgency (~4,500 dead)

Smith adds:

This is a lot of dead people – maybe about 2 million in all, counting all the smaller conflicts I didn’t list. But almost all of these dead people are Muslims – either radical Islamists, or their moderate Muslim opponents. Compare these death tolls to the radical Islamist terror attacks in the West. 9/11 killed about 3,000. The ISIS attack in Paris killed 130. The death tolls in the West from radical Islam have been three orders of magnitude smaller than the deaths in the Muslim world.Three orders of magnitude is an almost inconceivable difference in size. What it means is that only a tiny, tiny part of the wars of radical Islam is bleeding over into the West. What we’re seeing is not a clash of civilizations, it’s a global Islamic civil war. The enemy isn’t at the gates of Vienna – it’s at the gates of Mosul, Raqqa, and Kabul.

And radical Islam is losing the global Islamic civil war. In Syria and Iraq, ISIS is losing. In Nigeria, Boko Haram is losing. In all of these wars except for possibly Afghanistan, radical Islamic forces have been defeated by moderate Islamic forces.

Sometimes that’s because of Western aid to the moderates. But much of it is just because a medievalist regime holds very, very little appeal for the average Muslim in any country. Practically no one wants to live under the sadist, totalitarian control of groups like ISIS. These groups are fierce, but their manpower is small and their popular support is not very large anywhere.

How tragic it would be if Steve Bannon’s innumeracy helped cause the U.S. government to embroil itself in the Middle East even more than Bush and Obama did.

Henderson’s counsel to avoid “embroilment” overlooks Iran.

There sometimes comes a point at which it makes sense to become embroiled in a distant war. Take World War II, for example. FDR’s economic policies were disastrous for the U.S. — of that there’s never been any doubt in my mind. But I give FDR credit for his ability to see that if Germany and Japan gained dominance over Europe and the Pacific, the U.S. would eventually be squeezed into submission, economically and militarily. My point is that not all “embroilments” are necessarily bad.

Which brings me to the Middle East. If the U.S. allows Iran to develop nuclear weapons — which seems to be certain given Obama’s supine attitude toward Iran — disaster will follow. Iran will be able to control the region through nuclear blackmail, and given its reserves of oil and the willingness of its leaders to accept economic isolation, it (meaning its leaders) will be able to disrupt life in the West because of its ability to shut off the supply of oil to the West.

To paraphrase Andy Granatelli, the U.S. can stop Iran now, before it has done what Obama is allowing it to do, or the U.S. can stop it later, after it has done great economic damage, which the U.S. won’t escape inasmuch as the market for oil is unitary. Nor will the U.S. escape human damage if the U.S. doesn’t act until after Iran becomes capable of attacking the U.S.

It doesn’t matter who did what to cause Iran’s leaders to view the U.S. as “the great Satan.” (Sunk costs are sunk.) There’s no longer an option to butt out of Iran’s affairs. Given the fanatical enmity of Iran’s leaders toward the U.S. (which isn’t dispelled by superficial cordiality), it’s beyond belief that Iran isn’t steadily striving to acquire the ability to strike the U.S. with weapons of mass destruction — nuclear missiles, perhaps delivered from off-shore vessels instead of by ICBMs; “suitcase” bombs; coordinated strikes on the power grid, oil-production facilities, and water supplies; and much more that the U.S. intelligence apparatus should but may not anticipate, and which the U.S. government’s leaders may in any event fail to prepare for.

I may be wrong about all of this, but it’s the kind of thinking that should be done — even by economists — instead of latching onto Noah Smith’s superficial numeracy.

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.”

Our Sacred Honor?

In “Sizing Up Obama,” I wrote:

On the one hand, we have FDR II, replete with schemes for managing our lives and fortunes.

On the other hand, we have Carter-Clinton II, ready to: kowtow to those who would bury us, create the illusion that peace will reign perforce, and act on that illusion by slashing the defense budget (thereby giving aid and comfort to our enemies).

I have said a lot more about Obama’s schemes for managing our lives and fortunes. (See this, this, this, this, this, and this.) I also have addressed Obama’s apparent willingness to compromise our sacred honor. But it is clear that I have been preoccupied with Obama’s economic agenda, to the neglect of his foreign follies.

While the war in Iraq winds down to a successful conclusion, and the outcome of the war in Afghanistan depends on Obama’s willingness to buck the surrender lobby (of which Obama is a leading member), there is the problem of Iran:

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.

What has happened since I wrote those words on September 26? Just about what you would expect. Here is Charles Krauthammer, writing on October 16:

And what’s come from Obama’s single most dramatic foreign-policy stroke — the sudden abrogation of missile-defense arrangements with Poland and the Czech Republic that Russia had virulently opposed? . . .

. . . Surely we got something in return for selling out our friends. Some brilliant secret trade-off to get strong Russian support for stopping Iran from going nuclear before it’s too late? . . .

. . . Well, Clinton went to Moscow this week to nail down the deal. What did she get?

“Russia Not Budging on Iran Sanctions: Clinton Unable to Sway Counterpart.” Such was the Washington Post headline’s succinct summary of the debacle.

Note how thoroughly Clinton was rebuffed. Russian foreign minister Sergei Lavrov declared that “threats, sanctions, and threats of pressure” are “counterproductive.” Note: It’s not just sanctions that are worse than useless, but even the threat of mere pressure.

It gets worse. Having failed to get any movement from the Russians, Clinton herself moved — to accommodate the Russian position! Sanctions? What sanctions? “We are not at that point yet,” she averred. “That is not a conclusion we have reached. . . . It is our preference that Iran work with the international community.”

But wait a minute. Didn’t Obama say in July that Iran had to show compliance by the G-20 summit in late September? And when that deadline passed, did he not then warn Iran that it would face “sanctions that have bite” and that it would have to take “a new course or face consequences”?

Gone with the wind. It’s the U.S. that’s now retreating from its already flimsy position of just three weeks ago. We’re not doing sanctions now, you see. We’re back to engagement. Just as the Russians suggest.

Henry Kissinger once said that the main job of Anatoly Dobrynin, the perennial Soviet ambassador to Washington, was to tell the Kremlin leadership that whenever they received a proposal from the United States that appeared disadvantageous to the United States, not to assume it was a trick.

No need for a Dobrynin today. The Russian leadership, hardly believing its luck, needs no interpreter to understand that when the Obama team clownishly rushes in bearing gifts and “reset” buttons, there is nothing ulterior, diabolical, clever, or even serious behind it. It is amateurishness, wrapped in naïveté, inside credulity. In short, the very stuff of Nobels.

And so it goes, in the Orwellian world of Obama, where a temporary illusion of peace is attained through accommodation and surrender.

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