August 18, 2002


But What's The Legal Case For Preemption? (Bruce Ackerman, August 18, 2002,
Among other things, the first Gulf War was a triumph for the rule of law. Before the United States fired a single shot, the president had gained the formal
approval of both the U.N. Security Council and the U.S. Congress. In waging war against Saddam Hussein, he was not invoking some novel presidential doctrine. He was enforcing the U.N. Charter's explicit prohibition against any state using force to cross another's border. In intervening to reverse Iraq's invasion of Kuwait, he was upholding a central tenet of modern international law.

The first President Bush has often been derided for lack of vision, but these actions created a precedent that gave legal substance to his "new world order." In the aftermath of the Cold War, Bush was establishing the principle that America could deal with threats to world peace without recourse to an imperial presidency. He was inaugurating a new era in which major wars were not to be launched by presidential fiat, but only after the considered approval of representatives of the nation and the world.

The second President Bush has surrounded himself with advisers who condemn this vision as a harmful delusion. It is not enough for them to correct his father's mistake in failing to march on Baghdad; it is no less important to destroy the checks and balances his father constructed on the road to war. In the face of the father's multilateralism, the son is constructing a double unilateralism -- freed from the restraints of the Security Council abroad and Congress at home, the imperial presidency claims the authority to strike preemptively at any danger.

Suppose for a moment that the U.S. had imposed no-fly zones over Nazi Germany in Spring 1945 and enforced them for over ten years but hitler remained in power in August of 1956. Would we consider this a "triumph"? Or perhaps Hitler is too inflammatory a figure, and Nazi Germany too extreme. Suppose that instead of nuking Japan we'd just imposed a blockade on the home islands and in 1956 still found ourselves with a fascist government in control. Would this be a "triumph"? These examples may seem far-fetched, but suppose we'd had to go to some international governing body to get permission to invade the German homeland or to bomb Japan, would the Soviets have granted such permission?
Posted by Orrin Judd at August 18, 2002 8:49 AM
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