ETHICS, POLICY AND PREVENTIVE WAR

Gerard F. Powers
Director, Office of International Justice and Peace
United States Conference of Catholic Bishops
Conference on Ethical Issues Raised by Pre-Emptive War
The Churches' Center for Theology and Public Policy, Wesley Theological Seminary, Washington, D.C., May 1, 2003

As the lawyers would say, Iraq was a hard case. A repressive regime with a history of aggression which had used and likely possessed weapons of mass destruction had to be dealt with by the international community. It was a hard case that was made harder by 9/11. The threat posed by Iraq may not have changed in any significant way between September 10, 2001 and March 19, 2003, yet we went to war on that day based on the argument that it was no longer incredible to believe that Iraq=s weapons of mass destruction might be used against the United States or its allies. The United States could not wait, as President George Bush and other senior US government officials repeatedly warned, until we saw the mushroom cloud in Manhattan before we acted against this threat. The answer to the question, AWhy now?@ was not based on an actual threat that existed on March 19, 2003 as much as it was on speculation about what the threat might be in 2004, 2005 or 2008.

Just as hard cases can make bad law, insofar as the exceptional case is used to establish unwise and unhelpful precedents, the Bush administration=s preventive war justification for overthrowing the Iraqi regime makes for problematic morality. This paper outlines some of the reasons preventive war is inconsistent with the just war tradition and should not be embraced as a legacy of 9/11 or the war against Iraq.

I. IRAQ: THE HARD CASE

Three moral challenges. Iraq represented three potentially interconnected moral challenges to international peace and stability B repressive and aggressive (so-called "rogue") regimes, global terrorism, and the proliferation of weapons of mass destruction.

According to the Bush administration=s ANational Security Strategy,@ regimes, such as those in Iraq and North Korea, are a moral challenge because they are ruled by brutal and megalomaniac B or at least less than rational -- dictators who, are not easily influenced, deterred or contained. An even more serious moral challenge is posed by loose-knit, global networks of terrorists prosecuting what they consider to be a holy war against the West. These groups have demonstrated their capacity to unleash unimaginable evil, yet they are even more difficult to contain and deter than rogue regimes. If a third moral challenge B the proliferation of WMD B were to be connected to the first two B "rogue" regimes supporting global terrorism B the combination would be extremely dangerous. The threat posed by this deadly combination is so great B even if the chance of the threat being carried out is relatively low B that it can push traditional strategies and moral analyses to their limits.

Muscular unilateralism. However one describes the current structure of the international system, it is indisputable that the United States is the preeminent military, political, economic, and cultural power in the world. Paradoxically, the attacks of 9/11 and the U.S. interventions in Afghanistan and Iraq have given the United States a new sense of vulnerability, yet also have affirmed U.S. global dominance. The combination of U.S. vulnerability and U.S. primacy have reinforced tendencies toward a muscular unilateralism in U.S. foreign policy.

Iraq, much more than Afghanistan, was the test case for this muscular unilateralism. While a number of justifications were offered for the use of force against Iraq, it is significant that the Bush Administration=s case for the war was based in part on a strategy that claims a right to pursue, in some cases, the unilateral, preemptive use of military force against "rogue" regimes seeking or possessing weapons of mass destruction that might have ties to global terrorists. Preventive force is considered necessary because traditional concepts of deterrence, traditional limits on the use of force, and traditional approaches to non-proliferation are no longer adequate to address global terrorist networks or "rogue" regimes.

Preventive force as a policy option. The debate over preemption in the National Security Strategy paper has been obscured by the lack of a common terminology. Some use Apreemptive force@ and Aanticipatory defense@ interchangeably; others use Apreemptive@ and Apreventive@ force interchangeably. I would distinguish between three types of actions: (1) defense against an actual aggression, (2) anticipatory defense against a grave and imminent attack, and (3) preemptive or preventive defense against a potential or incipient danger.

US government officials and commentators do not agree on the significance and meaning of the references to a right to preemption in the National Security Strategy, but President Bush and other senior officials have been quite clear in a number of speeches on the war, that the United States could not afford to wait until an attack was imminent before it acted; potential or Agathering dangers were enough. As James Turner Johnson noted before the war: Athe administration has made a good case that the danger is clear, [but] it has not demonstrated that it is present, in the sense of an attack definitely intended and in process of preparation@ (though he notes that the sensitivity of information might prevent the administration from making that case publicly). Michael Walzer pointed out that President Bush repeatedly states that war with Iraq is neither imminent nor unavoidable: ANo one expects an Iraqi attack tomorrow or next Tuesday, so there is nothing to preempt. The war that is being discussed is preventive, not preemptive B it is designed to respond to a more distant threat.@ According to Zbigniew Brzezinski, AWhat the cases of North Korea and Iraq show is that if the threat is genuinely serious, the preemption doctrine is not pursued. If the threat is not immediate but, as the president said, grave and gathering, then you rely on preemption.@ In short, the U.S. government offered a preventive force, not an anticipatory defense, justification for war against Iraq.

II. HARD CASES MAKE BAD MORALITY

Underlying the national security strategy is an important moral insight B that the United States and the international community have a moral responsibility to address the Iraqi threat and threats like it. Whether or not preventive force is justified in response to this threat, one must not minimize the threat or lose sight of the fundamental moral obligation to act with resolve to defend innocent life and the common good. In all of their statements on Iraq over the past decade and in the aftermath of September 11th, the Catholic Bishops have been clear that the United States, in collaboration with others, has not only a moral right but a grave obligation to defend against mass terrorism and the threat posed by Iraq. As the bishops said in one of their statements, AWe have no illusions about the behavior or intentions of the Iraqi government. The Iraqi leadership must cease its internal repression, end its threats to its neighbors, stop any support for terrorism, abandon its efforts to develop weapons of mass destruction, and destroy all such existing weapons.@

The difficult moral issues are not mostly about these legitimate ends but about means B how to defend the common good against such threats, especially when the exact nature of the threat is neither clear nor imminent. The U.S. government's appeal to a preventive force justification was one of the reasons the Vatican and the Catholic Bishops in the United States and around the world were so uniformly opposed to the Iraq war. There are several problems with the preventive force justification for war.

The first problem is that preventive force is not consistent with the presumption against force. The bishops understand the just war tradition as a restrictive set of conditions that begins with a strong presumption against the use of force. That presumption has been buttressed in past decades by the experience of war in the 20th Century and the risk of global nuclear annihilation, on the one hand, and the demonstrated power of nonviolent action, even against dictatorial and repressive regimes, on the other. The case for preventive force is based on a very different understanding of the just war tradition as a permissive doctrine that begins with a presumption against injustice or for a just political order. The bishops= starting point assumes a sharp distinction between war and politics that preventive force doctrines blur.

The second problem with preventive force is that it entails a sharp and dangerous departure from existing constraints on just cause. The trend in just war thinking has been toward more restrictive interpretation of just cause. The Catechism of the Catholic Church reflects this trend in limiting just cause to cases in which Athe damage inflicted by the aggressor on the nation or community of nations [is] lasting, grave and certain.@ (#2309) This formulation is currently understood to limit force to cases of defense against aggression.

Even in the aftermath of September 11th, it is not necessary to abandon this formulation in favor of preventive war. Using this restrictive interpretation, the U.S. bishops concluded that the intervention in Afghanistan could be justified as defense against aggression because of the Taliban=s close ties to the Al Qaeda network that engineered the attacks of 9/11. Like many ethicists and some international legal opinion, the bishops recognized, in the case of Iraq, that anticipatory self-defense could be morally permissible, but only in the exceptional case where there is a clear and present danger, or a grave and imminent threat. Based on the publicly available evidence, they questioned whether the case had been made that there was clear and adequate evidence of an imminent and grave threat or an Iraqi link to 9/11 or similar terrorist activities.

Others see a need for a reinterpretation of just cause. George Weigel is not alone in arguing that "new weapons capabilities and outlaw or 'rogue' states require a development of the concept of 'defense against aggression.'" "Can we not say," he argues, "that, in the hands of certain kinds of states, the mere possession of weapons of mass destruction constitutes an aggression - or, at the very least, an aggression-waiting-to-happen?" Weigel's redefinition of aggression and anticipatory use of force is problematic for a couple of reasons. First, he makes a debatable assumption that, unlike Stalin's Soviet Union or Mao's China, Saddam's Iraq cannot be deterred or contained. Second, the crucial factor in ascertaining whether aggression has taken place is no longer a definable action, such as an armed attack, but is based on a highly subjective assessment of the nature of the regime. Weigel's distinction between "stable, law-abiding states" and "rogue" regimes is not easily applied. If North Korea, Iraq and Iran qualify as "rogue" states, does Pakistan, a military dictatorship with a history of support for the Taliban and terrorist groups, or South Africa under apartheid rule? Under Weigel's redefinition, the number of countries that would qualify as aggressors if they obtained nuclear weapons would be quite large. Third, on what basis does possession of weapons of mass destruction constitute aggression, as opposed to just possession of nuclear weapons? What about mere intent to possess? Or should the standard be a higher one of threatened use, or possession and a history of use as well as aggression? Moreover, if preventive force is partly justified as a strategy of counter-proliferation, is military intervention to dispossess a regime of its weapons of mass destruction justified even when the nation claiming the right to preempt itself relies on such weapons and threatens their preemptive use?

Weigel's highly subjective approach to aggression effectively erases the vital distinction between impermissible preventive and permissible anticipatory uses of force. Given the difficulties in redefining aggression and anticipatory defense without, in effect, justifying preventive war, the bishops rightly insist on maintaining the current restrictive understanding of just cause.

Third, preventive force is inconsistent with the moral certainty required to justify force. Weigel's effort to expand the definition of aggression is paralleled by those who consider traditional conceptions of "imminence" as a basis for anticipatory defense to be outmoded. Deputy Secretary of Defense Paul Wolfowitz and others find this criterion of imminence to be inadequate: AWhen were the attacks of September 11th imminent? Certainly they were imminent on September 10, although we didn=t know it.... Anyone who believes that we can wait until we have certain knowledge that attacks are imminent has failed to connect the dots that led to September 11.@

Wolfowitz unnecessarily confuses distinct categories. The attacks of 9/11 were an unforeseeable bolt out of the blew only in the sense of the magnitude and, perhaps, the mode of the attacks, but the attacks themselves were just the latest in a series inflicted by Al Qaeda against the United States and its interests over almost a decade. Neither a doctrine of anticipatory defense nor a doctrine of preventive force is needed to justify police or military action against Al Qaeda; traditional notions of defense against aggression or terrorism will do.

More important, the Wolfowitz argument fails because it lacks the necessary moral certitude. The Catechism of the Catholic Church reflects the wider just war tradition in holding that the damage inflicted must be Acertain@ before war may be justified. Arguably, the damage inflicted could be Acertain@ if it is imminent, in the sense of a clear and present danger. It is less clear how it could meet this certainty test if it is only a potential danger. Potential dangers are inherently speculative. Since they are impossible to prove or disprove, they are particularly prone to self-serving distortion or arbitrary judgments. They easily lead to what John Courtney Murray called the Adangerous fallacy involved in [the] casting up of desperate alternatives@ B ie, between preventive war and catastrophic attacks. The inaccurate and exaggerated claims about the gravity of the threat posed by Iraq's weapons of mass destruction are a case in point. The United States went to war in part based on predictions that Iraq would one day use its weapons of mass destruction, possibly unprovoked, against the United States or its allies, yet that same regime did not use these weapons even when its very survival was at stake. Preventive war doctrines suffer from serious epistemological problems. The momentous decision to go to war must not be based on inherently speculative judgments about potential threats which cannot be known with any degree of moral certainty.

Fourth, preventive force would undermine international peace and stability. While the United States might apply this doctrine only against a few Arogue@ states, it could set a terrible precedent, both in terms of vastly expanding the justification for war and the cases when the norm of non-intervention may be disregarded. Where would such a doctrine lead? What criteria would permit Pakistan to have nuclear weapons but not Iran, Israel but not Saudi Arabia or Egypt? Would the world be a safer place if India and Pakistan or Japan and North Korea embraced a doctrine of preventive force to deal with each other? The doctrine might dissuade some countries from pursuing WMD, but might it not just as likely encourage others to do so?

A larger question is the relationship between preventive force, a broader vision of international peace and security, and the role and responsibility of the United States in helping to realize that vision? The National Security Strategy has as one of its goals the maintenance of U.S. military dominance, both nuclear and conventional. Both supporters of the National Security Strategy, such as John Lewis Gaddis, and critics, like Stanley Hoffmann, suggest that the doctrine requires Ahegemony@ (Gaddis) or Ait amounts to a doctrine of global domination@ (Hoffmann). John Norton Moore, a principal defender of the Reagan Doctrine, has argued that a doctrine of preemption will undermine efforts to strengthen international law against aggression: ATo imply a return to the Melian dialogue of might makes right, which despite the real intent behind the doctrine is how others may interpret it, is counter to our own long-term national interest in a stable legal regime.@ It is also counter to a Christian vision of cooperative security in which international institutions and international norms are increasingly strengthened so as to reduce, not expand, the occasion in which nation-states resort to war.

Fifth, preventive force is fraught with all the moral challenges associated with military intervention to change regimes and the nation building that follows. Preventive war, unlike self-defense or anticipatory defense, in most cases, would require the overthrow of governments, since it is the nature of the regime that makes it a potential danger. In just war tradition, demands of unconditional surrender have generally been considered violations of right intention because such demands are seen as unreasonable, and they are seen as factors that prolong wars and complicate efforts to restore peace. According to Charles Krauthammer, AIn Iraq, America demonstrated the capacity, extraordinary and historically unique, to destroy a regime while leaving the country intact.@ Thankfully, the Iraqi people have been freed from a brutal and repressive regime, the war was shorter than many expected and some of the parade of horribles people feared did not come to pass. Krauthammer=s early assessment of the war is far too sanguine, however, given the still unknown loss of life during the war, the chaos and destruction of the immediate aftermath, the difficulties in restoring even basic services and a rudimentary economy, and the power vacuum that could continue to be a problem for some time. His assessment is characteristic of a tendency to judge the morality of war the way some shareholders value companies B according to the short-term bottom line.

This short-term post-war perspective is often in sharp contrast to the long-term predictions used to justify force pre-war. Because it is impossible to prove the necessity for war when dealing with potential threats, there is an added temptation to present ideal-case scenarios about the likely consequences of going to war B in the case of Iraq, a transformation of not only Iraq but of the wider Middle East. A major war and regime change will invariably change the political and strategic dynamics in a region, as the Iraq war has begun to do in the Middle East. It is far too soon, however, to know if, on balance, the long-term impact will be positive or negative. If moral analysis is realistic about the need to use force as a last resort to deal with injustice, it is equally realistic about the consequences of doing so. Wars rarely bring the freedom justice and lasting peace that are envisioned when they are begun, especially when they involve foreign intervention to establish a new political order. Afghanistan and the early months of the Iraq occupation are just the latest of many examples.

Given the ambitious objectives in Iraq or in any preventive war, the moral measure of success will depend less on how the war is won than on the nature of the post-war peace. If preventive war to overthrow a potentially threatening regime could ever be justified, it would have to be followed by a sustained, long-term commitment to nation building that respects and restores that nation=s sovereignty in a way that ensures that the new order will be more just, stable and less threatening than the old.

Sixth, the political legitimacy of preventive force may be strengthened by international sanction but its moral legitimacy would remain suspect. If just cause were expanded to permit preventive force, a more restrictive understanding of legitimate authority would be needed in order to avoid emasculating just war limits. The criterion of legitimate authority does not require international sanction, but in the case of the preventive use of force, prudence dictates it for several reasons. First, as with humanitarian intervention, approval by the U.N. Security Council or some other form of international sanction can provide a procedural safeguard to guard against abuse. International sanction provides necessary checks and balances, especially given the troubling precedent involved in the world=s only superpower proposing to use preventive force to overthrow other regimes. Second, to the extent preventive force includes the overthrow of a government, broad international involvement should aid in the difficult, long-term effort to rebuild a stable, political and social order that is seen as legitimate. Third, the cosmopolitan ethic underlying the just war tradition presumes that nations have an obligation to help build up the international institutions that would make war between states less of a tragic necessity in international affairs. The use of unilateral, preventive force would further contribute to a perception of U.S. exceptionalism and undermines efforts to strengthen international collaboration for peace.

Even if international sanction would confer greater political legitimacy on preventive force, a more fundamental question is whether the UN or another international body should be in the business of preventive war. The Holy See has argued vehemently against such an expansion of the UN=s mandate. Many of the problems already mentioned would apply whether preventive force is undertaken unilaterally or through the UN.

Seventh, despite these other problems, is preventive force necessary? Even if these six objections to preventive force are valid, one might still insist that international realities B i.e., necessity B demand a rethinking of the just war tradition. In other words, preventive force is the only available alternative in dealing with hard cases like Iraq.

There are never clear or easy answers to hard cases. In Iraq, the bishops joined many others in arguing that, while not perfect, a strengthening of efforts at enforcement, containment, and deterrence were more realistic alternatives than resorting to war, with all its troubling precedents and potentially negative consequences. In fact, this is essentially the approach the Bush administration is following in response to what it acknowledges is a similar but more immediate threat from North Korea and Iran.

What is at issue here is the extent to which containment and deterrence, combined with a strengthened non-proliferation regime and counter-proliferation measures short of war, are sufficient to address the problem of "rogue" states with weapons of mass destruction and/or possible ties to terrorists. Proponents of preventive force are convinced that these measures are insufficient to the task. Others disagree. The bishops are not convinced that these measures have been fully tried and failed; in other words, they are not convinced that preventive force meets the criterion of last resort. Improved intelligence, expansion of the cooperative threat reduction program, stricter controls on export of missiles and weapons technology, improved enforcement of the biological and chemical weapons conventions, and fulfillment of U.S. commitments under the Nuclear Non-Proliferation Treaty are some elements of this broader non-proliferation effort. If these efforts to not succeed, it might be permissible, in exceptional cases, to justify the limited use of force if that did not undermine the vital distinction between legitimate anticipatory defense and illegitimate preventive force.

CONCLUSION

The power of the United States is often compared to that of the Roman Empire. John Brady Kiesling, a foreign service officer who resigned in protest over the Bush administration=s policies in Iraq and elsewhere, asked if emperor Caligula=s motto had become our own: ALet them hate us if they will, provided only that they fear us.@ After 9/11, some asked, AWhy do they hate us?@ Before the Iraq war, polls showed that many people around the world feared the United States more than they feared Saddam Hussein. The enunciation of a doctrine of unilateral, preventive war, the use of that doctrine to justify war against Iraq, and the suggestion by senior U.S. government officials that Syria, North Korea, Iran, and other countries should learn a lesson from the Iraq war have a lot to do with the fears, even among long-standing U.S. allies, of unparalleled U.S. power.

While others might fear U.S. power, since 9/11 Americans have been preoccupied with their own fears and vulnerabilities in the face of global terrorism. While a doctrine of preventive war may derive in part from an ethic of responsibility B to protect ourselves and the world from catastrophic attacks B it also has elements of an ethic of fear B post-9/11 fears leading us to embrace a version of Caligula=s formula of instilling fear of us, while tolerating hatred of us. That formula might work for the New York Yankees but it did not work for the Romans and it will not work for the United States. It will not work because it risks a cycle of fear that fuels a cycle of violence.

The United States is in the midst of a terribly important debate about the legacy of 9/11; the lessons learned from the war in Iraq will play a decisive role in defining that legacy. Because the unimaginable happened on 9/11, the United States has become, not surprisingly, radically risk averse in its assessment and tolerance of threats around the world. The combination of U.S. primacy and U.S. vulnerability could lead to one kind of legacy: a sort of muscular unilateralism in U.S. foreign policy which includes preventive force and an over-reliance on short-term military solutions to deal with a troubled and sometimes threatening world. That sort of legacy would blur fundamental distinctions between legitimate defense and aggression, would make a turbulent and unstable world even moreso, would be inconsistent with the moral certainty required before force is justified, and would be seen by many as a form of neo-colonialism and an endorsement of the notion that "might makes right."

A Christian vision would try to shape another sort of legacy that is more in keeping with the best of American ideals. From a moral point of view, this legacy would take seriously threats to the common good while maintaining strict moral restraints on the use of military force. From a theological point of view, this legacy would be clear that the legitimate goal of ensuring our security should not become an absolute, for that would be idolatry. While there is a duty to defend the common good from threats, God does not promise us security, but the grace to learn to live with our insecurity. Preventive war is inconsistent with both this moral and theological perspective.