Ethical and Legal Dimensions of the Bush "Preemption" Strategy

By Cook, Martin L. | Harvard Journal of Law & Public Policy, Summer 2004 | Go to article overview

Ethical and Legal Dimensions of the Bush "Preemption" Strategy


Cook, Martin L., Harvard Journal of Law & Public Policy


We will cooperate with other nations to deny, contain, and curtail our enemies' efforts to acquire dangerous technologies. And, as a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed. We cannot defend America and our friends by hoping for the best. So we must be prepared to defeat our enemies' plans, using the best intelligence and proceeding with deliberation. History will judge harshly those who saw this coming danger but failed to act. In the new world we have entered, the only path to peace and security is the path of action.

**********

The National Security Strategy of the United States of America (NSS), required from each administration by the Congress of the United States, is the single most authoritative statement of any administration's view of the world from the perspective of national security. At least notionally, it provides the conceptual framework by means of which decisions are made regarding the force structure and size of the U.S. military, the types of weapons systems to be acquired by them, and the types of military units maintained in the force.

It is, therefore, a document (in any administration) well worth careful study and analysis. This particular NSS is more than routinely important, however, for a number of reasons. First, and most obviously, it is the first official articulation of the comprehensive view taken by the U.S. security policy in response to the al Qaeda attacks of September 11, 2001. It is, therefore, an official and doctrinal articulation of how the administration understands the security landscape to have been changed by those attacks. Second, in articulating a strategy of preemption of the acquisition of capabilities on the part of potential adversaries (or, perhaps even more strongly, of preventive use of U.S. military force around the world in advance of clear response to aggression), the NSS at very least appears to challenge much of the existing understanding of legitimate use of military force in the international system. (2) And third, coupled with various other moves this administration has made (e.g., non-participation in the Kyoto treaty process and the International Criminal Court, to name only two of the most visible), the NSS appears to indicate a marked departure from the robust internationalism of President Clinton's National Security Strategy (3) framework of attempting to shape the international environment, responding to threats, challenges, and opportunities, and preparing for a more desirable future by integrated and regional programs of promoting democracy, free trade, etc. while also transforming the U.S. security sector.

Whereas the Clinton NSS conceives of a complex and multicentered world and imagines U.S. action to function within a web of interconnected forces and causes, the tone of President Bush's NSS clearly puts greater emphasis on the need for U.S. action. For example, President Bush's NSS states:

   In the new world we have entered, the only path to peace and
   security is the path of action.

      As we defend the peace, we will also ... preserve the peace.
   Today, the international community has the best chance since the
   rise of the nation-state ... to build a world in which great powers
   compete in peace instead of continually prepare for war. Today,
   the world's great powers find ourselves on the same side--united
   by common dangers ... [and] increasingly ... by common values.

This passage is particularly revealing because, while it certainly acknowledges the common international interest in dealing with the challenges of terrorism it identifies, the overriding emphasis rhetorically is on the need to act--such that, should the rest of the international community not share a common sense of urgency regarding a specific case (as in the decision to proceed with the invasion of Iraq, for example), clearly the felt urgency to act is dominant over the careful tending of international common cause.

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