Politics & Policy

Preemption’s Legal Troubles

Defense Secretary Leon Panetta on 60 Minutes, January 29, 2012 (CBS News)
If we don’t have the right to destroy Iran’s nuclear program, we need new rules.

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.

#ad#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.

#page#Conservatives intuitively understand the need for early preemption of threats such as Iran’s nuclear program. But their tendency to dismiss international law is highly misguided. International law has proven to be a major limiting factor on a democracy’s ability to project and sustain strategic power.

When the strategic interests of major powers coincide, their consensus can lend legitimacy to a confrontational policy. But when those interests don’t coincide, the only recourse is to international law, and if you can’t find your legitimacy there, you could be in big trouble.

When the strategic interests of major powers are not in general alignment, it is principles of international law that most often define the terms of diplomatic debate. Diplomatic debate in turn defines the terms of political debate. Political debate in turn shapes public opinion, both within the member countries and around the world. Public opinion in turn determines the likely political support for a given strategy both initially and down the road, when the going gets tough. And the degree of political support is what finally defines the effective reach of strategic power.

#ad#No system of government has ever been able to unleash so much military force as a modern democracy. But no system of government’s strategic power is so limited by the vicissitudes of public opinion. That is what makes public opinion the true limiting factor in the strategic-power-projection capability of a democracy.

Effective deterrence depends upon “escalation dominance.” In the Iran nuclear standoff, escalation dominance means that, whatever the Iranian reaction to U.S. strikes, we will win. But as the Iraq War showed — and as Cold War–era deterrence theory suggested — escalation dominance is not merely a matter of superior military capability. It is also a matter of political will.

Panetta’s threat to do “whatever is necessary” to stop Iran will succeed only if Iran is convinced that the U.S. can follow through on the threat. If they think that U.S. strikes can be made to seem illegitimate, they will be inclined to doubt our escalation dominance and more inclined to run the risk of strikes. Right now, all they’d have to do is fracture the coalition arrayed against them (by temporarily suspending uranium enrichment, for example), and then the U.S. and Israel would be thrown on the rocky foundations of preemption’s perceived discrediting under international law.

For very practical reasons, legitimacy is indispensable to our foreign policy. The effort to halt Iran’s nuclear program is worth the risk of war. But because the consequences are unpredictable, we must go in knowing that we will have legitimacy on our side. People think that the Bush doctrine of preemptive war has been discredited. But in fact preemptive action is vitally necessary in many domains of national security, and most of all in the effort to stop the proliferation of nuclear weapons.

Under current international law, the deck is stacked against preemption. That needs to change, and fast.

If, at the outset, all governments are on notice, and have accepted, that America may resort to force in order to forestall a dangerous deterioration in the status quo, our full strategic power might stand a chance of forestalling such a deterioration peacefully. If not, we are liable to see many North Koreas and Irans sprinting toward nuclear weapons in the years ahead.

It would be reckless not to consider military action to stop Iran’s nuclear program. But it would also be reckless to take military action on the basis of legal principles that nobody has agreed to. American diplomacy needs to stop trying to fit our national-security strategy into the box of current international law. Instead, we should work with our friends and allies to forge principles that can actually sustain the effort to stop the spread of nuclear weapons.

— Mario Loyola is former counsel for foreign and defense policy to the U.S. Senate Republican Policy Committee.

Mario Loyola — Mr. Loyola, a former foreign-policy adviser at the Pentagon and in the U.S. Senate, is a visiting fellow at the National Security Institute at George Mason University’s Antonin Scalia Law School.

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