International Law: Self-Defense

Sometimes a Name is Only a Name

By Jack Goldsmith
Friday, April 8, 2016, 12:57 PM

Daniel Bethlehem says that my claim that the Obama administration has embraced the Bush doctrine of preemption for anticipatory self-defense “misses an essential element.” The essential element I missed was that the 2002 National Security Strategy that first announced the preemption doctrine “invented new language and, in doing so, suggested that the United States was moving away, with deliberate thought and careful consideration, from established tenets of international law.”

I do not know if the term “preemption” had ever been used to explain anticipatory self-defense prior to 2002. But the Bush administration was quite clear that its notion of preemption was not a new idea and was grounded in established tenets of international law.

In the briefing for the 2002 National Security Strategy, a “senior administration official” (i.e. National Security Advisor Condoleezza Rice) stated: “On preemption, preemption is not a new concept. Anticipatory self-defense is not a new concept. It goes -- you know, Daniel Webster actually wrote a very famous defense of anticipatory self-defense.” When Will Taft explained the “legal basis for preemption” before the CFR in November 2002, he was careful to place it “within the traditional framework of self-defense.” He said:

The President’s National Security Strategy relies upon the same legal framework applied to the British in Caroline and to Israel in 1981. The United States reserves the right to use force preemptively in self-defense when faced with an imminent threat. While the definition of imminent must recognize the threat posed by weapons of mass destruction and the intentions of those who possess them, the decision to undertake any action must meet the test of necessity. After the exhaustion of peaceful remedies and a careful, deliberate consideration of the consequences, in the face of overwhelming evidence of an imminent threat, a nation may take preemptive action to defend its nationals from unimaginable harm.

One month before, Rice had explained:

[S]ome threats are so potentially catastrophic —and can arrive with so little warning, by means that are untraceable—that they cannot be contained. Extremists who seem to view suicide as a sacrament are unlikely to ever be deterred. And new technology requires new thinking about when a threat actually becomes "imminent." So as a matter of common sense, the United States must be prepared to take action, when necessary, before threats have fully materialized.

Preemption is not a new concept. There has never been a moral or legal requirement that a country wait to be attacked before it can address existential threats. As George Shultz recently wrote, "If there is a rattlesnake in the yard, you don't wait for it to strike before you take action in self-defense." The United States has long affirmed the right to anticipatory self-defense—from the Cuban Missile Crisis in 1962 to the crisis on the Korean Peninsula in 1994.

But this approach must be treated with great caution. The number of cases in which it might be justified will always be small. It does not give a green light—to the United States or any other nation—to act first without exhausting other means, including diplomacy. Preemptive action does not come at the beginning of a long chain of effort. The threat must be very grave. And the risks of waiting must far outweigh the risks of action.

The Bush preemption doctrine adjusted the imminence requirement of anticipatory self-defense in the face of a developing threat with enormous destructive capacities. As Admiral Kirby said in justifying the 2014 attacks on the Khorasan Group in Syria: “Far better to be the left of a boom than to the right of it. And that’s what we’re trying to do, is get to the left of any boom to prevent the planning from going any further, and certainly to prevent them getting into an execution phase, which we don’t believe they were in yet.” This is the Bush principle, and the one that Egan embraced.

I agree with Bethlehem that the Bush administration hurt itself with overly muscular first-term rhetoric about its power and willingness to use force, which invited alarmed concerns by friends and allies about U.S. departures from ordinary understandings of use-of-force principles. Indeed, I wrote a book about it. John Bellinger, Matt Waxman, and others did a lot of work in the second Bush term to correct these impressions. And now the Obama administration has completed the task.

In this light, it is important to understand why Egan’s speech, which relies on Bethlehem’s work, is so significant. When the international-law-friendly Obama administration embraces preemption, and can point to the support of such eminent jurists as Bethlehem, preemption becomes (as I wrote in Time) “easier to swallow,” and gains “broader acceptance and legitimacy.” As I also wrote, it is the Obama administration’s articulation of the preemption principle, not the Bush articulation, that will be important. “Future presidents who want to use force in other nations won’t invoke the doctrine from the fateful Iraq war. They will instead adopt the functionally identical principle that the Obama administration normalized and legitimated.”