From pre-emption to prevention and back (ISRAEL HAYOM OP-ED) Dore Gold 03/16/12)
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During his March 4 AIPAC speech, President Barack Obama came closer
than ever before to declaring that should sanctions fail, he was
prepared to use military force to stop Iran from acquiring nuclear
weapons. He explicitly rejected the idea that the U.S. should base
its future approach on deterring a nuclear Iran, stressing that his
policy was preventing a nuclear Iran: “Iran’s leaders should know
that I do not have a policy of containment; I have a policy to
prevent Iran from obtaining a nuclear weapon.”
Obama then listed the efforts his administration had undertaken,
concluding the list with, "and, yes, a military effort to be prepared
for any contingency." He repeated, "I will take not options off the
table,” adding, "and I mean what I say." But there was no explicit
guarantee that the U.S. would attack if Tehran reached the point of
assembling a weapon. Defense Secretary Leon Panetta clarified the
administration´s policy two days later: “Military action is the last
alternative if all else fails, but make no mistake: When all else
fails, we will act.”
Did this mean that the Obama administration was indeed prepared to
launch a preventive strike at Iran´s nuclear facilities in the
future? If that was the case, this would represent a sharp break from
the position of many of the critics of the 2003 Iraq war who rejected
the legal right of the U.S. undertake such attacks.
These critics were mostly found in American academia and a number of
leading law schools, Obama´s milieu before he entered politics. They
included highly respected scholars like Harold Koh, the dean of Yale
Law School, who would become the legal adviser of the State
Department under Obama.
In the shadow of 9/11, it was the 2002 Bush Doctrine that asserted
the U.S. right to engage in preventive attacks most forcefully, when
it spoke about "taking the battle to the enemy ... to confront the
worst threats before they emerge.” In contrast, the famous Article 51
of the U.N. Charter asserts an "inherent right of self-defense if
armed attack occurs against a member of the United Nations.”
International legal scholars, for the most part, recognized a right
of pre-emption as far back as the 19th century, when Secretary of
State Daniel Webster detailed the pre-conditions for pre-emptive
strikes after the British attacked an American steamer, the Caroline,
along the U.S.-Canadian border. Israel´s attack in the 1967 Six-Day
War demonstrated again the legitimacy of pre-emption when it appeared
that war was about to break out.
But Bush took this a step further, from pre-emption to prevention, by
saying that America was not going to wait to the last minute before
acting, but rather would neutralize threats well before they became
Within two years, Bush´s ideas were forcefully rejected, especially
in liberal circles, as U.S. forces became bogged down in the Iraqi
insurgency. The New York Times published an editorial in September
2004 entitled: "Preventive war: a failed doctrine." Along with Harold
Koh, Professor Michael Doyle of Columbia University convened a
seminar in 2008 under the prestigious Carnegie Council, which he
opened by saying, "Talking about preventive self-defense today, in
the wake of the Iraq fiasco, is something like interviewing the
passengers of the lifeboats of the Titanic about their views on ocean
travel." It seemed that the U.S. was not again going to take military
action so quickly against a rogue state developing nuclear weapons,
as it did in Iraq.
There were two main legal arguments repeatedly voiced against
preventive military actions by the U.S. First, the threat it was
seeking to neutralize was not imminent, but was still being formed.
Alan Dershowitz explained in his 2006 book, “Pre-emption,” that there
was a consensus that such preventive attacks against non-imminent
threats were illegal according to international law.
But should pre-emption and prevention be treated so differently
considering that the real difference between them is how far away the
threat they are addressing appears on a timeline?
Today, moreover, there is a growing problem of waiting to the last
minute for an imminent threat. In the conventional battlefield,
imminent threats are visible. There are classic signs intelligence
services can pick up weeks before a war, like reserve mobilization,
or the movement of forces and ammunition stocks from their regular
bases to forward positions.
But in the push-button era of missiles, it is much harder to know
that an enemy is preparing an imminent attack, in which case a pre-
emptive strike might be considered. Moreover, the risks of waiting
until those preparations become evident are much too great with
nuclear weapons. For that reason, there have been efforts underway to
update international law.
At this time, Obama is not prepared to take preventive action against
Iran precisely because he believes he has plenty of time. He told The
Atlantic´s Jeffrey Goldberg in a recent interview: "Iran does not yet
have a nuclear weapon and is not yet in a position to obtain a
nuclear weapon without us having a pretty long lead time in which we
will know that they are making that attempt.”
But is Obama´s sense of confidence about the ability of intelligence
services to warn him in time warranted? Two years ago, then Defense
Secretary Robert M. Gates was discussing the Iranian nuclear program
and asked: “If their policy is to go to the threshold but not
assemble a nuclear weapon, how do you tell that they have not
assembled? I don’t actually know how you would verify that.”
Gates fully understood the limits of intelligence; in the 1990s he
headed the CIA. The import of what Gates was saying is that by the
time the U.S. knows whether Iran has crossed the nuclear threshold,
it might be too late to take any action.
The second legal argument against the doctrine of preventive
operations from the Bush era is that they were unilateral, without
the backing of the U.N. Security Council. The Obama administration´s
official National Security Strategy allows for American
unilateralism. But in reality the situation is more complicated, as
in the case of Libya, in which the U.S. still relied on a U.N.
mandate with NATO support.
Legal scholars who now assert the legitimacy of preventive strikes in
many cases insist that the evidence against rogue states be first
presented to the U.N. Security Council, despite the well-known delays
that the U.N. machinery has demonstrated in repeated crises. It
should be stated that past U.S. governments have used force without
U.N. authorization: from Kennedy´s naval quarantine around Cuba to
Reagan´s air attack on Libya to Clinton´s missile strikes on an
alleged chemical weapons factory in Sudan. None of these attacks
involved an imminent threat of attack on the U.S.
It is not so clear that the Obama administration is so willing to
shed the requirement of U.N. authorization. During testimony he gave
before the Senate Armed Services Committee on March 7, Defense
Secretary Panetta stated that in the case of Syria, before the U.S.
could become militarily involved, "our goal would be to seek
international permission." Certainly, the Syrian people who are under
siege would prefer not to have their rescue dependent on the goodwill
of Russia and China in the Security Council.
By the same reasoning, would effective action against Iran be made
dependent on an international consensus at the U.N. that does not
even exist on sanctions? Undoubtedly, the Obama administration
declarations have shed much of the reluctance after the Iraq war to
consider preventive military action when confronting a challenge on
the scale of the Iranian nuclear program.
But the rhetorical shift is not enough. In practice, it appears that
even if it becomes clear that sanctions have had no impact on Iranian
decision-making with respect to nuclear weapons, it will still take a
very long time until a decision to use U.S. force to halt Iran will
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