March 11, 2012


A Misreading of Law and History on Preemptive Strikes (Peter Berkowitz, 3/10/12, Real Clear Politics)

[W]ithout ever quite saying so for obvious political reasons, the Obama administration has adopted -- and elaborated in major speeches by State Department Legal Counsel Harold Koh, top counterterrorism adviser John Brennan, and Attorney General Eric Holder -- the Bush opinion that in an era of transnational terrorism, rogue states, and the proliferation of weapons of mass destruction, considerable flexibility is needed in determining when a threat is imminent, and when preemptive action is justified.

Those opposed to launching a strike against Iran should guard against the temptation to bend the precedents and provisions of international law and twist the facts of American politics to conform to their policy preferences. At the same time, a brief in behalf of the legality of a military strike against Iran must not be confused with a brief in behalf of a military strike against Iran.

Whether to launch a strike to destroy or disable Iran's nuclear program is the weightiest decision Obama and Netanyahu face. It depends on multilayered judgments about the efficacy of diplomacy and sanctions, windows of opportunity for military action, and how far the program can be set back at this late stage.

And it depends on complex calculations about the likely backlash: thousands of missiles raining down on Tel Aviv by Iran-sponsored Hamas in the south, Iran-sponsored Hezbollah in the north, and Iran to the east; intensification of the international opprobrium to which Israel is already subject; military operations against American military assets and allies in the Persian Gulf and the spread of war throughout the region; closure by Iran of the Strait of Hormuz, triggering skyrocketing oil prices and paralysis of the international economy; and a wave of terrorist attacks on Israeli and American targets around the globe.

Grave, too, would be the costs of allowing Iran to build a nuclear weapon. A rogue state ruled by theocrats and Holocaust deniers and dedicated to the expansion by force of Shia Islam, Iran would threaten Israel, the Arab world, Europe, and soon the United States with nuclear-armed missiles. It would also be likely to set off a nuclear arms race in the Gulf, resulting in not one but several regimes that contain Islamist elements sympathetic to jihadists and terrorism possessing the world's most dangerous weapons.

What can be safely said is that the effort to close off discussion about striking Iran by concocting a legal prohibition out of fragments of international law and cropped photos of the American constitutional tradition does more than betray illiberal and anti-democratic tendencies. It also would deprive the nation of the informed debate on which our security depends. 

The only real rational for a strike on Iran is that Israel will do it otherwise and we'd prefer to accept the blame ourselves rather than be forced to accept it for a client state's actions. It's basically a decision that our doing it would be less inflammatory than Israel doing it. There is no security rational on the ground in Iran.

The genuinely weighty decision the Administration currently faces is whether to intervene militarily in Syria and, significantly, the only rational there is liberal/humanitarian.  Our eventual intervention there, as in Libya, will be driven exclusively by our redefinition of sovereignty, such that we recognize no government as legitimate that is not a function of the consent of its people. 

Fretting about whether we can "legally" strike an enemy's nuclear program when the reality is that we increasingly routinely remove their governments is pretty silly.
Enhanced by Zemanta

Posted by at March 11, 2012 10:23 AM

blog comments powered by Disqus