Executive Power

Peter Berkowitz Responds to Bruce Ackerman on the Legality of Intervention in Iran

By Jack Goldsmith
Sunday, March 11, 2012, 7:16 PM

I recently noted Peter Berkowitz’s short piece on the legality of a military action against Iran.  Bruce Ackerman subsequently argued that such a strike “would be a violation of both international law and the U.S. Constitution.”  Berkowitz has now responded to Ackerman.  In addition to reviewing some precedents contrary to Ackerman’s position, Berkowitz notes that the Obama administration has (as I noted here) already embraced the theory of “imminence” in the doctrine of anticipatory self-defense that Ackerman seems to be urging it to reject.  Berkowitz concludes with a caveat similar to the one he made in his first piece:

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.

Berkowitz then briefly assesses the costs of intervention versus the costs of non-intervention.