Secretary of Defense Leon Panetta recently delivered the Obama administration’s clearest warning yet on Iran’s nuclear program. In a 60 Minutes interview he said: “If they proceed and we get intelligence that they’re proceeding with developing a nuclear weapon, then we will take whatever steps are necessary to stop it. . . . There are no options that are off the table.” As welcome as this clear warning may seem, it rests on legal grounds that are ultimately untenable — and potentially catastrophic.
The Iraq war roundly discredited the notion that inferential intelligence assessments are a valid basis for preemptive military action against a WMD threat. Tehran has helped remediate the problem by uniting the West, lending some degree of legitimacy-by-consensus to possible strikes. But that does not remove the obstacle that generally accepted principles of international law nowadays pose for any effective regime of counter-proliferation.
The “general principle” for preemptive self-defense is that you can preempt an “imminent attack” but nothing more. That rule is ridiculous, and will sooner or later prove suicidal. Because of the instantly deliverable nature of nuclear weapons, waiting for firm intelligence of an imminent threat is a reckless game of chicken in which the claimed right of preemption is triggered only when it is almost too late to make any difference.
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The deterrent value of a preemptive threat is greatest when it can be interposed early, long before an attack is “imminent.” In the run-up to the Iraq War, the debate over whether Saddam’s WMD posed an “imminent” threat was highly misguided, but it nonetheless derailed our diplomacy, showing the practical importance of having international law on your side.
The right of early preemption against threats like Iran’s nuclear program must become an international norm of general acceptance if preemptive threats are to have any deterrent value. Current norms — and the diplomatic strategies derived from them — have only incentivized Iran to sprint toward nuclear weapons. The strategy of increasingly onerous sanctions may be painful for Iran, but it implies that military strikes are off the table as long as further sanctions are in prospect. Thus, starting with the first Security Council sanctions in 2006, Iran knew that it had several risk-free years ahead of it to develop WMD.
The only principle that can justify early preemption against a WMD threat is one that calls on dangerous regimes to be transparent in their dispositions. What you could call “regime transparency” is the key. This is the cardinal principle that was all along missing in the Bush administration’s justification for war against Iraq. The burden of proof should have been on Saddam to demonstrate the non-threatening nature of his weapons programs. In the long run, such a burden could be met only by a regime that was itself essentially transparent, in which the business of government was conducted in an orderly and law-abiding way.
Alas, neither international norms nor U.N. Security Council Resolution 1448 imposed any such obligation. The diplomatic debacle in the Security Council in the weeks before the Iraq War was thus foreordained — and it cost us dearly in strategic terms, nearly enough to jeopardize the entire war effort.
Regarding your mention of "generally accepted principles of international law," I assume you are referring to the notion of "customary law," the favorite concept of pacifists both in and out of government. The U.S. should outright reject the notion of customary law. Customary law is an idea that undermines national sovereignty in general and the constitution specifically.
The U.S. should not conduct its affairs, especially with regard to national security, constrained by the opinions of other countries. Compliance with treaties signed by the president and ratified by the senate are another matter, but all of this whining among academics, media, and pacifist libertarians about "international opinion" is a bunch of hogwash. Power is not based on popularity - it is based on force and dependency. ("Is it better to be loved or feared?")
With regard to Iran, it is unlikely that they will seek to nuke anybody. Most scenarios for doing that end up with Iran in a very bad state and its leadership even worse off. What nuclear weapons give Iran is a license to provoke, coerce, and harass countries within its region and in the West. Iran will still choose to fight by proxy (the various flavors of Hezbollah) and when acting directly will probably employ measures that are at least nominally covert. They will expect a nuclear arsenal to provide them an exemption from direct Western intervention, or at least hesitancy (as if the West could be any more hesitant than it already is). Iran will seek to convince its neighbors that its influence in the Middle East and possibly parts of South Asia demands consideration. Iran will certainly continue to meddle in Iraq and Lebanon, and we know they have attacked as far away as Argentina.
The Iranian government also needs an adversarial relationship with the West. The internal situation in Iran requires it. Without somebody outside of Iran to blame for the ongoing disaster in Iran's economy, what is the regime to do?
If the U.S. attacks Iran, I don't think the U.S. will accomplish much more than a delay of the Iranian program. The idea of pursuing a regime change along the lines of Operation Iraqi Freedom is so distasteful to the American people that it is hard to contemplate it qualifying as even an outside possibility. Iran, if its leadership is even halfway competent in war, must have long ago identified American domestic political competition as a critical handle with which to grapple against our obvious military superiority. Certainly, the Iranians would seek to influence U.S. actions via the American public by leveraging our internal political disagreements here at home, just as our own government, if it's even close to paying attention, ought to be doing in Iran.
But appealing to the "international community"? Who cares? Let them. They can write Ann Landers while they're at it.
I think Iran's history of involvement in international terrorism is the best direction from which to build the case for isolation of Iran, for undermining their current leadership, and if necessary, for war against them. The nuclear program is really just the rotten cherry on top of that blood-soaked sundae.
One more thing: Iran is dangerous, and so is Pakistan. Egypt and Syria are disturbing as well. Turkey's shift toward Islamist-friendly lunacy is disheartening. But the number one, absolute, uber alles problem that the United States and the rest of the free world faces right now is our federal government's out of control spending and interference in the marketplace. Iran and its proxies may kill thousands of innocent people in nutso terror campaigns over the next decade, but it won't destroy our country or the West. Cronyism, socialism, and out of control federal spending, however, will bring this country to its knees.
Iran has important friends on the Security Council, so any strike against them will be illegal by definition. Unless, of course, you have some secret plan to convince Russia, China, India, and Pakistan to vote against their interests.
The national right of self-defense is a basic charter element of the United Nations. Iran has threatened aggression and war against Israel and is engaged in both sponsoring and planning third party acts of war against them and the US.
The threshold of when a nation perceives itself sufficiently at risk of imminent attack in order to invoke the right of self-defense through the exercise of pre-emptive action is not a matter of concensus but a matter solely the province of the responsible organs of that state charged with the responsibility for the common weal.of its constituents.
It is never a matter of what China, France or Russia think about your national security situation but what YOU think about it that counts. That is the hair on the trigger of pre-emptive action that sits over countries that threaten others.
International opinion or 'law' on this matter will make not a whit of difference where public opinion in the pre-empting country is largely resolved to the rectitude of their government's action in the face of the preception of antagonistic provocation and real danger.
When the State of Israel perceives itself to be in imminent danger of attack they will act, rightfully, in accordance with their unfettered right to self-defense.
It matters not how the United States perceives the validity of that perception nor any other third party's measure of the same. Iran cannot judge that perception by reference to third parties nor by any measure of self-reference. For that reason, they are playing with fire just as Sadam Hussein did by threatening America.
Whether adjudged as paranoia or otherwise after the fact, no-one is rightfully in a position to gainsay the feeling of threat felt or perceived by another. Iran and America court disaster if they fail to understand this truth and repose their faith in the futility of 'international law' to stay the hand of the those wantonly, ideologically and recklessly threatened by the barbaric lunatics in Iran.
If you're taking the position that national sovereignty trumps international law then logically you'd have to concede that the US and Israel have no right to deter an Iranian nuclear program. Iran is a sovereign country with no obligation to consider the international community, by your logic.
"Preventive war was an invention of Hitler. Frankly, I would not even listen to anyone seriously that came and talked about such a thing." Eisenhower- 1954
Escalation dominance certainly did figure prominently in the calculus of deterrence during the Cold War, and the author correctly notes it's predicated on the political will to act. But then he goes on to dilute his argument by saying Panetta's threats will only succeed if Iran "is convinced that the U.S. can follow through on the threat." He follows with a discussion on the apparent legitimacy or illegitimacy of a response. I tend to agree with the other commentators that having the political will means being able to act without regard to (or despite) the international community's perception of the legitimacy of the act. If you are frozen into indecision because you are afraid of public opinion, then you clearly lack the will to act and so must concede whatever rung of the escalation ladder you're on. How many times has the U.S. been misjudged by other countries for lacking sufficient political will in a conflict, only to become surprised when America wildly strikes back? Certainly Sadaam Hussein misunderstood this or else he would not have played a bluffing game with WMDs when in fact Iraq had none. And Iran is certainly not in an enviable position either when it comes to playing this game of chicken. Because not only does it have to calculate the political will of the U.S., but also that of Israel. And to my knowledge, Israel has never bluffed when it came to an existential threat.
Escalation dominance certainly did figure prominently in the calculus of deterrence during the Cold War, and the author correctly notes it's predicated on the political will to act. But then he goes on to dilute his argument by saying Panetta's threats will only succeed if Iran "is convinced that the U.S. can follow through on the threat." He goes on with a discussion on the apparent legitimacy or illegitimacy of a response. I tend to agree with the other commentators that having the political will means being able to act without regard to (or despite) the international community's perception of the legitimacy of the act. If you are frozen into indecision because you are afraid of public opinion, then you clearly lack the will to act and so must concede whatever rung of the escalation ladder you're on. How many times has the U.S. been misjusdged by other countries for lacking sufficient political will in a conflict, only to be surprised when America wildly strikes back? Certainly Sadaam Hussein misunderstood this or else he would not have played a bluffing game with WMDs when in fact Iraq had none. And Iran is certainly not in an enviable position when it comes to playing this game of chicken. Because not only does it have to calculate the political will of the U.S., but also that of Israel. And to my knowledge, Israel has never bluffed when it came to an existential threat.
