The Green Papers Commentary
 

ON THE ATTAQ?
Anticipatory Self-Defense and a possible War with Iraq

Sunday, September 8, 2002

by RICHARD E. BERG~ANDERSSON
TheGreenPapers.com Staff

The right of self-defence [sic] is part of the law of our nature and it is the indispensable duty of civil society to protect its members in the enjoyment of their rights, both of person and property. This is the fundamental principle of the social compact. An injury, either done or threatened, to the perfect rights of the nation, or of any of its members, and susceptible of no other redress, is a just cause of war. The injury may consist, not only in the direct violation of personal or political rights, but in wrongfully withholding what is due, or in the refusal of a reasonable reparation for injuries committed, or of adequate explanation or security in respect to manifest and impending danger.

[the noted 17th century Dutch jurist Hugo Grotius, one of the earliest expositors of the so-called 'Law of Nations' (what we today would tend to call 'International Law')] condemns the doctrine that war may be undertaken to weaken the power of a neighbor, under the apprehension that its further increase may render him dangerous. This would be contrary to justice, unless we were morally certain, not only of a capacity, but of an actual intention to injure us. We ought rather to meet the anticipated danger by a diligent cultivation and prudent management of our own resources. We ought to conciliate the respect and good will of other nations, and secure their assistance, in case of need, by the benevolence and justice of our conduct. War is not to be resorted to without absolute necessity, nor unless peace would be more dangerous and more miserable than war itself.

An injury to an individual member of a state is a just cause of war, if redress be refused; but a nation is not bound to go to war on so slight a foundation; for it may of itself grant indemnity to the injured party, and if this cannot be done, yet the good of the whole is to be preferred to the welfare of a part. Every milder method of redress is to be tried, before the nation makes an appeal to arms; and this is the sage and moral precept of the writers on natural law. If the question of right between two powers be in any degree dubious, they ought to forbear proceeding to extremities; and a nation would be condemned by the impartial voice of mankind, if it voluntarily went to war upon a claim of which it doubted the legality.

But on political subjects, we cannot expect, and are not to look for the same rigorous demonstration as in the physical sciences. Policy is a science of calculations and combinations, arising out of times, places and circumstances, and it cannot be reduced to absolute simplicity and certainty. We must act according to the dictates of a well-informed judgment, resting upon a diligent and careful examination of facts; and every pacific mode of redress is to be tried faithfully and perserveringly, before the nation resorts to arms.

[former New York Chancellor James Kent, 'Commentaries on American Law' (1826): I, 48]


America on the Horns of a Dilemma

War clouds seem to be gathering anew as we approach the First Anniversary of the terrible events of 11 September a year ago, much as they gathered out of the smoke and dust of that awful, awful day: war drums are heard, however muffled, in the distance- though not loud and insistent as they were in the weeks immediately following September 11th- as the present Bush Administration seems to be ratcheting up the rhetoric, while the diplomats and Heads of State and Government come and go in the glare of the television lights and the military planners much more quietly meet in the shadows; and yet Congress and the American public- while generally supportive of the notion that Saddam Hussein is a threat to Peace and World Order- seems divided as to just how to go about doing something about that threat.

The Bush Administration has been touting the notion that the United States it governs has the power to act unilaterally, if necessary: their earlier insistence that this power didn't even need the imprimatur of Congress seems to have slackened but, given the fact that only Britain (and, even then, only on the personal pledge of British Prime Minister Tony Blair and his Government; certainly the British public- not to say a fair number of back-benchers within Mr. Blair's Labour Party- is not any the near enthusiastic as Mr. Blair seems to be!) has committed to being with us in pretty much whatever we do as regards Saddam Hussein's regime and that it is quite possible, where not outright probable, that- should we Americans go to war against Iraq- we will largely be on our own, the Administration has raised the issue of Anticipatory Self-Defense- an argument in which it is opined and offered that the threat posed by Saddam Hussein necessitates our effecting a so-called "regime change" in Baghdad by force because it is not only in our interests but in defense of our very existence!

In the face of such an argument, I feel it would now be desirable to review the origins of the traditional American position on Anticipatory Self-Defense (really the proverbial "pre-emptive strike" by another name) on which the Bush Administration seems to be so relying and then compare its application within the context of the War Against International Terrorism re: the current military operations in Afghanistan to the potential for military operations in Iraq.

The Background of the story is found in Canada

In order to most fully understand the historical American position as to national self-defense, we must- paradoxically- first turn to an episode in Canadian history which had a direct bearing on that position and first, in order to fully understand that, we must know what led up to a minor international incident which, nevertheless, came to loom very important in International Law:

Just prior to what is generally known in North America as the "French and Indian War" (called the Seven Years' War in Europe)- in reality, the last in a three-quarter century-long series of four so-called "French and Indian Wars" (the British- eventually the victors- got to write History here, of course!), British America on the North American mainland consisted of 14 Atlantic seaboard based colonies- the famous "13 Colonies" that would, within a generation, end up striking out on their own as the United States of America plus the northernmost British province, Nova Scotia. Most of North America to the north and west of British America- an area squeezed into the St. Lawrence Valley between British America and the holdings of Britain's Hudson's Bay Company before opening up into the Great Lakes and the Valley of the Ohio leading to the Mississippi and French 'Louisiana'- was 'Nouvelle-France' (New France), known colloquially in British America simply as "Canada"; but there were French-speakers within Nova Scotia (of which Britain had only gained possession from France via the Treaty of Utrecht that had formally ended the War of the Spanish Succession [known in British America as "Queen Anne's War"- in the form that particular conflict took in North America, the second in that series of "French and Indian Wars" alluded to earlier] in 1713), these Francophones being known as Acadiens (since this region of the coast [including what we now call "Down East" Maine] had been- under French rule prior to 1713- generally known as Acadia). While hostilities between the British and French increased as 1754 became 1755, the Acadiens were seen, by the administration of Nova Scotia's Governor Charles Laurence, as a potential threat to good British order in the province (indeed, many Acadiens had been agitating with local Native American Indian tribes against the provincial administration, hence- at least to some extent- the reason behind the name of the conflict by then well underway); and, as a result, they were expelled by order of Governor Laurence- destined to be dispersed throughout the rest of British America (though many would eventually find their way to for the time being French [but destined to be ceded to Spain under the first Peace of Paris] colony of Louisiana, where they would become the eponymous ancestors of today's "Cajuns").

As a result of the first Peace of Paris, which ended the French and Indian/Seven Years' War on 10 February 1763 (the second Peace of Paris, of course, would be that which- a little over twenty years later- would formally end the American Revolution and, within the Law of Nations, acknowledge the existence of the United States of America), Britain found itself in possession of all of what had been New France/Canada. On 7 October of that year a Royal Proclamation formally laid down the boundaries between Nova Scotia and "Canada" which was to be formally known as 'Quebec', after the citadel city that would function as the administrative center of what was now to be the 15th British mainland colony in North America; this same Proclamation also laid down a western limit to settlement by whites- this limit coming to be known as the "Proclamation Line"- which followed the height of the Appalachian chain and left the areas on the opposite side of these mountains to the Native American Indian tribes. Five years later, a series of treaties with these tribes (most notably the Treaty of Fort Stanwix with the Native American Iroquois Confederacy in what is now central New York State) allowed for limited white settlement beyond the Appalachians, principally south of the Ohio River (but with the entire Proclamation Line adjusted accordingly) but, on 20 May 1774, the British Parliament passed the Quebec Act which gave all of the land north of Ohio River covered by the 1763 Proclamation, as modified in 1768, to that now newly expanded province.

The Quebec Act was the direct result of the administration of the original province created only eleven years before by Sir Guy Carleton, who took over as Governor in 1768 and soon became known for "Carleton's Paradox"- the idea attributed to him that, in order for the province to remain British, its inhabitants had to be allowed to remain French. The Acadiens had been expelled from Nova Scotia on the British theory that having a French subculture within a British province was an untenable, where not potentially unstable, situation; Carleton purposely set out to prove that theory wrong in his handling of the likewise French-speaking Canadiens of Quebec. Under the Quebec Act, while English institutions were brought to bear (though there would not be what the British would come to call "responsible government" [that is, the inclusion of a legislative assembly- the very device that the Patriots in the "lower 13" were using to challenge the authority of representatives of the British Crown- to which the executive council advising the Governor would be accountable]), the provincial government was now bound to formally protect the language, culture and religion of the Canadiens (for example, the role of the Roman Catholic Church was preserved [unique in a British Empire where opposition to the influence of "Papists" often seemed to be a directive from the Home government] and that Church's Faithful in Quebec were exempted from the Protestant religious elements of the Empire's Oath of Allegiance; in addition, although English 'Common Law' would now be applied in criminal cases, the old Roman-based 'Civil Law' of France would still apply in non-criminal legal actions within the newly-expanded French-speaking province). Unfortunately for the British, by the time the Quebec Act was effective, events were already underway to the south of Quebec- primarily in the province of Massachusetts Bay, events which would lead directly to the American Revolution; fortunately for the British, the now English-speaking province of Nova Scotia- alarmed by what they saw as anti-monarchical activities in their neighboring province (yes, neighboring: for what is now Maine was then still part of Massachusetts Bay and what is now New Brunswick was then still part of Nova Scotia)- decided, in the end, not to send delegates to that Continental Congress first being organized in 1774! Still, the Quebec Act- which had given away (to a province full of Papist French-speakers, no less!!) lands north of the Ohio that many of the 13 rebellious colonies claimed for themselves- gave these very colonies which would, on 4 July 1776, declare themselves to be "free and independent States" yet one more (to them) good reason to have done so.

Towards a second "American Revolution" in Canada itself?

The formal recognition of the United States of America by the second Peace of Paris now led to new challenges for the two provinces (Quebec and Nova Scotia, of course) that had, unlike the "lower 13", remained part of what would now be known collectively as British North America. The main challenges were posed by the arrival of displaced Loyalists from the "lower 13"- people who wished no truck with what they still considered to be much too radical notions of the concept of Liberty; however, to say that these people wished to remain British (which is the general picture painted of the Loyalists in the boilerplate public school American History usually taught to U.S. high school students) would be more than very simplistic, where it would not be outright wrong! The Loyalists simply wished to have a place in which to re-create "their" America- a more British America than that they were forced to leave behind, yes; but more America than Britain, nonetheless!! In Nova Scotia, these Loyalists were more easily accomodated: many of them settled a new province separated from Nova Scotia in 1784, New Brunswick; but in Quebec, settling the Loyalists was to be much more problematic- for the provincial government there had been purposely devised to implement "Carleton's Paradox": it would surely be difficult for those who would soon become known as the United Empire Loyalists to establish their vision of non-American British (that is, English ) America in a province the governance of which had been particularly arranged so as to accommodate French language, religion and culture! Thus were to be sown the seeds of potential difficulties that still well haunt the Canada of today, that grand Nation-State that has- for more than a century and a quarter now- straddled three more Time Zones than even the continent-wide contiguous "lower 48" United States does.

Once more into the breach came Carleton himself, by now the Baron Dorchester, to the rescue: forever to be known as "The Saviour of Canada", Lord Dorchester- who had left the Governorship of Quebec in 1778- would return to that office less than a decade later and then become the force behind the Constitutional, or Canada, Act of 10 June 1791 which divided Quebec (now to be again known colloquially as "Canada") into two provinces: 'Lower Canada' (the basis of today's Canadian province of Quebec) for the French-speakers and 'Upper Canada' (the basis of today's Canadian province of Ontario) for the English-speaking United Empire Loyalists (along with such as the Native American tribes of the now displaced Iroquois Confederacy, which had been on the British side during the American Revolution); this Constitutional Act would finally bring what the British would call "representative government" to the now-divided province, giving separate Governors, (unelected) executive councils and legislative assemblies (the councils and assemblies together to form bicameral provincial legislatures- though the councils were also to be advisory to the Governors and function more or less as his 'ministers') to each of the new twin provinces: the protections for the culture of the French-speaking Canadiens under the now-repealed Quebec Act were to be retained- but only in Lower Canada, of course.

By the 1830s, the Governors and executive councils in both Upper and Lower Canada had long been under the political control of vested, much more conservative, elements within provincial society- a powerful political elite, if you will: in Lower Canada, this elite was known as the "château clique"; in Upper Canada, it was the so-called "Family Compact". The cry of "reform" happened to be well in the air in the democratized West during this particular decade: from a second revolution in France in 1830 to the so-called, more peaceful "Jacksonian Revolution" spreading the gospel of universal manhood suffrage and the long ballot (in which hitherto appointed officials were to now be elected) throughout the United States; even the home island of Britain itself had passed, in 1832, its own Reform Bill which did away with such monstrosities as "pocket constituencies" (in which a single powerful landlord could dictate his choice of Member of Parliament to a limited electorate) and "rotten boroughs" (in which the only legal voter was a single large landholder). It was only a matter of time before these same waves- waves of reform that would, however, soon enough become potentially violent rebellion, such as that which would be seen in the form of Dorr's Rebellion in Rhode Island ere long- would start to break upon the twin Canadas. In both provinces, reformers (who sometimes would even come to control- but not by much, nor for long, in each and every case- the legislative assemblies of both Upper and Lower Canada) were- throughout the decade- demanding the end of institutional domination by the respective elites in each province (by proposing that the legislative councils, if not outright elected, at least be made accountable- that is, "responsible" [hence that particular term for that style of government in the British colonial system]- to the legislative assemblies) and finding themselves continuously rebuffed by the Governors and councils of each province.

By 1837, these demands began to foment potential revolution: it started in Lower Canada (where, of course, the demands of the reformers had additional Francophone legislature vs. Anglophone executive overtones) with riots in Montreal during November of that year; but any nascent revolution in Lower Canada- principally led by one Louis Joseph Papineau- died a-borning: the rebel agitation was largely confined to the area around Montreal, martial law was temporarily- but rather easily- imposed in such a small district by the first week of December and the flame of reform by force of violence was rather quickly snuffed out in that province by Her Majesty's troops. Upper Canada proved to be the more flammable province: here- while the riots still were taking place in a principal city of the other Canada and the British regulars who would normally be protecting the provincial capital, Toronto, were, thus, called to Montreal- one William Lyon Mackenzie, whose reformers had lost the most recent election for the provincial assembly, put together an armed band which, during the early part of December, threatened to march on Toronto and seize the Lieutenant-Governor of Upper Canada, Sir Francis Head, in order to force negotiations with the governing elite for reform. Mackenzie was repulsed when a hastily-organized militia (actually more like a provincial posse comitatus) under one Colonel Sir Allan McNab (who happened to also be the Speaker of the provincial assembly) forced the rebels to flee into New York State where, on 13 December 1837, Mackenzie and his rebels declared themselves to be the provisional government of Upper Canada. Three days thereafter, the rebels seized Navy Island- a tiny strip of land within the Canadian portion of the Niagara River flowing between Lake Erie and Lake Ontario and separating British Upper Canada from New York State- upon which Mackenzie's group of several hundred set up camp and defiantly flew their "provincial" flag consisting of two stars- representing the twin Canadas- above the words "Liberty and Equality".

The Caroline incident and its two very different Aftermaths

It was into this situation that the American steamboat Caroline set off from Buffalo on 29 December 1837. Having already made a couple trips that day carrying a number of Mackenzie's rebels along with some American supporters of their cause to Navy Island (Mackenzie was obviously trying to increase the strength of his forces on the island with sympathetic anti-British Americans; it also happened that many of Mackenzie's Canadian rebels were of American non-loyalist descent [and, therefore, had relatives in the States] while the elite they were fighting was made up of descendants of United Empire Loyalists who had, as already noted, opposed American Independence), the vessel was fired upon at least twice by musket volleys from the Canadian side of the Niagara during its third trip to the island before being forcibly boarded by a detachment of McNab's militia (under command of a Royal Navy captain)- though while, by that point, moored back along the opposite shoreline in American waters: in addition, a number of passengers aboard the boat were killed or wounded while the vessel was being taken over by the Canadian militiamen. Since the strong current of the Niagara did not allow for the vessel to be taken safely to the Canadian side as, in effect, a Prize of War, the Caroline was ordered to be scuttled by fire and then sent plunging over Niagara Falls while aflame. But the fact that the vessel had been boarded while, technically, still in the United States set off something of a minor firestorm of controversy within the nearby communities of western New York State as well as within the more distant Administration of President Martin Van Buren hundreds of miles away in Washington, D.C.

New York happened to be Van Buren's home state and the President responded by, on 5 January 1838 (a week after the incident), formally asking the Governor of New York, William Marcy- a fellow Democrat and, thus, a political ally of Van Buren's, to provide sufficient militia to ostensibly calm the agitation of the population of western New York aroused by the incident and then "federalized" these New York militia units by formally placing them under the command of future Mexican War hero U.S. Army Major General Winfield Scott. The President then- on that very same day- issued a Proclamation formally asserting U.S. neutrality in the Mackenzie rebellion and urging all Americans to honor their Nation's neutral position by not aiding and abetting the Canadian rebels.

Ultimately, cooler heads pretty soon prevailed: Mackenzie and his rebels had no doubt as to the intentions of a militia force under General Scott potentially getting their range and coordinates and, on 13 January 1838, before Scott could possibly engage them, Mackenzie surrendered-- to American authorities, however; he would- the following year- be tried and convicted of violating American neutrality laws and serve the better part of a year in an American prison. Ironically, his rebellion would be a catalyst for reform without threat of violence back home and, indeed, the creation of a liberalized United Province of Canada would soon result (via the Union Act of 23 July 1840) and this, in turn, would prove to be something of a foreshadowing of the eventual confederation of the Dominion of Canada (including Nova Scotia and New Brunswick as well as the two former [to be, once again, separate] provinces of United Canada) come 1 July 1867; Mackenzie himself would return home and- like Papineau as well- serve in the legislative assembly of United Canada whilst opining that- based on his experience at the receiving end of both during the course of his earlier rebel activities- the British system of law and justice which prevailed in the now-united province was far superior to that found in the United States!

It also appears- once it became known across the Atlantic what had happened (in those days of slow ocean-going intercontinental communication)- that what now became known as "the Caroline incident" aroused little, if any, concern in Parliament (which was more preoccupied with issues attendant upon the recent accession of the young Queen Victoria); nevertheless, the British government (the ambassador of which, of course, represented Canadian interests in Washington at the time) remained rather skeptical of the intentions of Scott's troops as well as those of the Van Buren Administration- especially when, on 8 January (3 days after his Proclamation of Neutrality), the President sent a Special Message to Congress in which he assailed what Van Buren himself termed "an outrage of a most aggravated character" along with depositions- collected by local prosecutorial authorities in the counties of western New York from survivors of the incident- asserting, among other things, that there were likely still people aboard when the Caroline was set afire and subsequently tumbled over Niagara Falls.

Regardless of the actual circumstances of the deaths caused by the event, the Van Buren Administration seemed to have a valid claim under International Law that the incident was clearly a violation of American neutrality; the British response was simply that the militiamen of Upper Canada were merely exercising their province's (and, by extension, the British Empire's) right of that which was called "anticipatory self-defense" (in effect, "pre-reacting" to an action not yet taken by a threatening opponent) in boarding and later burning the Caroline in order to prevent rebels- including Americans- from joining in activity that could potentially threaten the legitimate government of Upper Canada. Still, all in all, the whole "Caroline incident" would have become an unfortunate but otherwise forgettable episode in the much larger history of the relationship between America and Canada (as well as that between the United States and the British Empire) but for a strange murder indictment and trial that precipitated both a domestic constitutional crisis and an international bone of contention which forced Britain to once again assert a claim of anticipatory self-defense as regarded a 3-year-old event.

The furor over the Caroline incident in America had pretty much fully died down when, just as the new reformist United Province of Canada was being first organized in 1840, a Canadian deputy sheriff (generally disliked, in fact: contemporary accounts from even his supporters refer to him as something of a loathsome braggart) named Alexander McLeod who- while visiting New York State- claimed he had personally killed an American named Durfree during the Caroline incident; McLeod was promptly arrested by local authorities and subsequently indicted on a charge of murder. Great Britain angrily protested the charges against McLeod, once again asserting that the whole Caroline incident was a necessary act of national self-defense and that McLeod was therefore not liable for murder under what was then still called the Law of Nations (specifically, that oxymoronically-titled field known as "the laws of War"). By the time McLeod was about to come to trial as Spring was first becoming Summer 1841, Van Buren had been voted out of office in favor of the "Tippecanoe and Tyler, too!" Whig Party ticket of William Henry Harrison and John Tyler, Harrison had subsequently died of pneumonia, Tyler had become the very first American Vice-President to succeed to the Presidency upon a vacancy and Daniel Webster, who had been a Whig Senator from Massachusetts and a leader of the opposition to the Van Buren Administration in Congress at the time of the Caroline incident, had since become U.S. Secretary of State.

In the meantime, McLeod had sued for a writ of Habeas Corpus in the New York State courts under whose jurisdiction he was being held and was formally denied in July 1841, despite Webster getting Attorney General John Crittenden to communicate to McLeod's defense attorneys the Administration's tacit acceptance of the British position (while the United States publicly still saw the event as a violation of American neutrality-- after all, it had to, considering that Mackenzie himself had only recently been released from custody, having been convicted of actions in violation of same); unfortunately, at the time, the Federal courts had absolutely no authority to take habeas corpus cases out of State jurisdiction, even where they might involve issues of International Law (clearly the province of the American Federal Government and not its constituent States)- hence the domestic constitutional crisis (finally resolved when, on 29 August 1842, a law was passed by the Whig-dominated Congress [over howls of objections by Democrats concerned about the statute's potential effect on State's Rights] providing for habeas corpus in Federal, not State, court in cases where a foreign national asserts a defense under color of service to a foreign sovereignty).

The international bone of contention, however, was that the British government had no patience with the vagaries of American Federalism and- with a furor in England that had been largely absent in the immediate wake of the Caroline's demise- linked their relations with the United States to McLeod's fate per se (the then-Foreign Secretary Lord Palmerston even went so far as to opine that McLeod's execution for the crime would mean war with the U.S.) but this did absolutely nothing to relieve the complications caused by the fact that, at the time, there was simply no way for the Tyler Administration to compel the State of New York to give up jurisdiction over McLeod via ordinary judicial process. Any chance of war between Britain and the United States over McLeod (as well as the looming threat of a stalemate in negotiations underway at the time re: finally and definitively settling the long-disputed northern boundary of the State of Maine- something the British, more so than the Americans, were keenly interested in [Britain wanted to make sure a mostly water route- more passable in the winter than a land journey- to the St. Lawrence Valley from Nova Scotia remained accessible to the province of New Brunswick]) was averted, however, when McLeod came to trial in October 1841 and was acquitted after it was discovered that there was no way he could have even been present when the Caroline incident had taken place! Yet the thing that makes this whole synopsis of the chain of events leading to the Caroline incident, the incident itself- as well as the two very different aftermaths of same- relevant to the discussion in this Commentary is the simple fact that the Tyler Administration pretty much accepted, on behalf of the United States of America as a Nation-State within the scope of International Law, the doctrine of anticipatory self-defense asserted by the British government in relation to that incident, even though the U.S. still denied the British Empire's right to have asserted it specifically in relation to the Caroline incident itself!

The American definition of Anticipatory Self-Defense and The War Against International Terrorism

On 9 August 1842 the Webster-Ashburton Treaty between Great Britain and the United States, which finally settled the northern boundary of Maine, was concluded (ratifications would be exchanged the following 13 October). As part of the negotiations between Secretary of State Webster and Lord Ashburton (the scion of the great English banking family of Baring who was the chief British negotiator), there was one last exchange of views between the two Governments on the Caroline incident- in something of an attempt to "bury the hatchet" and put a minor event (rendered major, where not sordid, by the McLeod case) behind them. On 24 April 1842, Webster wrote his definition of Anticipatory Self-Defense as it was seen from an American perspective in light of all that had happened to, as well as aboard, the steamer Caroline more than four years before; it remains a definitive statement within the American view of various and sundry issues of International Law and, to our purposes, is- in this way- much more important than the fact that Webster was expressing the American unwillingness to (at least publicly) accept that the Caroline incident at all came under his own definition (in his response, dated the following 28 July, Lord Ashburton politely differed with the American conclusion as to the incident's justification, though he freely admitted of a "violation of... territory", and merely expressed regret as to the "exasperation" and "subsequent complaints and recriminations" caused to British-American relations as a result).

"It is admitted", Webster wrote, "that a just right of self-defense attaches to nations as well as to individuals, and is equally necessary for the preservation of both. But the extent of this right is a question to be judged of by the circumstances of each particular case; and when its alleged exercise has led to the commission of hostile acts within the territory of a Power at peace, nothing less than a clear and absolute necessity can afford ground of justification." Webster later noted that it is up to the Government so claiming anticipatory self-defense "to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation."
Still later, Webster went on to state that the United States of America "is jealous of its rights, and among others, and most especially, of the right of the absolute immunity of its territory against aggression from abroad; and these rights it is the duty and determination of this Government fully and at all times to maintain, while it will, at the same time, as scrupulously refrain from infringing on the rights of others."

As a good example of a recent (as well as still ongoing) application of this doctrine, permit me to examine the American response to the horrific events of September 11th last year in light of Webster's definition. Clearly, the hijacking of four large jetliners- each fully loaded with fuel for transcontinental flight- and the use of same as missiles of mass destruction by suicidal terrorists whose roots and citizenry were from outside the United States constitutes a clear violation of that "right of the absolute immunity of [U.S.] territory against aggression from abroad" of which Daniel Webster once wrote and, thus, the doctrine of anticipatory self-defense applies. Why? Because, in the first instance, those who actually carried out the attacks on the United States of America on 11 September 2001 themselves were killed in their own attacks (therefore, there is no way to stop them from committing future terrorist acts for they have stopped themselves from doing so) and, secondly, those who authorized and planned these attacks, and subsequently aided and abetted the late attackers, were not, in and of themselves, legally representatives of a legitimate government of a Nation-State under International Law. Thus is one of Webster's conditions for anticipatory self-defense- "no choice of means"- satisfied: the only effective means available to stop future aggression (at least the only means that would well "put the hurt" on the aggressors) was to derail, defeat and destroy those who were behind the attacks through the employment of "overwhelming" (another of Webster's conditions) response against, in this particular case, their main base of operations in Afghanistan, the then-government of which was allowing that country to be used by the aggressors as a safe haven.

Was our self-defense "instant" (yet one more of Webster's conditions)? In a relative sense, yes- it was. I have little- if any- doubt that, once the dust had settled at what is now called "Ground Zero" in New York City and at the damaged wing of the Pentagon (as well as in that lonely field in southwestern Pennsylvania) and it, soon thereafter, became clear to those within the current Bush Administration just which group was behind the events of September 11th (Al-Qa'eda, of course), there was a more or less "instant" decision to retaliate against the perpetrators in Afghanistan; any delay until 7 October 2001, the date hostilities actually began, was merely a matter of logistical, tactical and strategic planning (combined with more than a little diplomatic wrangling to well get allies- from fellow members of NATO to a rather reluctant Pakistan- on board). Likewise the requirement that there be "no moment for deliberation": again, I think there was a relatively quick determination- without much deliberation- that the United States would go after Al-Qa'eda and the Taliban in Afghanistan and that, when President George W. Bush appeared at the World Trade Center site a mere three days after the attacks and announced through a bullhorn that the perpetrators of the deed would be "hearing from all of us soon", the Commander in Chief well knew the general outlines as to what 'our' "calling card" would be: all he needed before giving the original orders to attack come 7 October was the particulars as to how it would be done. Therefore, at least the first phase of the War Against International Terrorism- our toppling the Taliban government in Afghanistan and, in so doing, beginning the process of disrupting Al-Qa'eda in and near that country- seems entirely justifiable as a form of anticipatory self-defense per Daniel Webster's definition in response to those terrible events of 11 September 2001.

Getting it all Bass-ackwards

What makes the inclusion of anticipatory self-defense in the current debate over whether or not the United States- alone or with a coalition of allies- has the inherent right under International Law to, in the near future, attack Iraq and topple the regime of Saddam Hussein rather intriguing- where it is not also amusing (and often bemusing!)- is that, in a sense- when compared with the debate over the United States' right to attack Afghanistan almost a year ago, it all seems the inverse of reality! The need to have Pakistan formally give its permission to use American troops on their soil in military operations in neighboring Afghanistan (along with the need to make sure the Russian Federation would not object to our use of air bases in what was once Soviet Central Asia) is, of course, understandable; yet the United States spent a lot of time prior to 7 October putting together an international coalition- from having NATO, for the first time, invoke the "an attack on one is an attack on all" provision of the Alliance's charter to stroking Muslim countries as far away as Indonesia. Though much of this is also understandable in light of the fact that Al-Qa'eda has operatives in more than 60 countries (including the United States itself!) and we would, thus, need a large amount of international cooperation to, if only to take one obvious example, disrupt the financial resources on which Al-Qa'eda has traditionally relied, at the same time- under the Websterian interpretation of the doctrine of Anticipatory Self-Defense (under which the United States clearly was anticipating future attacks from terrorists who would presumably continue to be trained in Talibanized Afghanistan were no action taken and Al-Qa'eda and its Taliban protectors to then remain unmolested in that country), the United States clearly had every right to, if it had so desired, "go it alone" against Afghanistan: that is, the U.S.- if only in theory (all practical diplomatic and military difficulties last Fall put aside)- could have attacked that country with not a single ally, with nothing at all resembling an international coalition, under a claim of anticipatory self-defense!

Now, in relation to its contemplating making Iraq the next major Theater of Operations in this War Against International Terrorism, the present Bush Administration is arguing that Anticipatory Self-Defense gives America the right to attack Iraq and effect its desired "regime change" without- if it should become necessary- any other Nation's support, let alone all that much input from the Congress of the United States! I could not disagree much more, absent any clear evidence of a threat from Iraq to which only "instant, overwhelming" force resulting from "no choice of means, and no moment of deliberation" can effectively be brought to bear. It has to be admitted that there can be little question that an American attack on Iraq- with or without allies- would be "overwhelming": but even admitting of "no choice of means" (the jury is, in my opinion, still well out on that: though it can be argued that Saddam Hussein having already jerked around UN weapons inspectors quite a bit might make yet another round of UN-sanctioned weapons inspections rather useless as a "means" through which to well anticipate and then defuse any potential threat from Saddam Hussein's government), would an attack on Iraq by the United States be considered "instant"?- with "no moment for deliberation"?? Hardly!! The very fact that most of us are all sitting around discussing this very issue of "Go/No-Go" re: Iraq- and have been for some time now- shows that we have all had plenty of time to deliberate and that any action against Iraq would be far from "instant".

As I opined in an earlier Commentary nearly a year ago [that of 25 September 2001], if it could be well and fairly established that there were, indeed, a direct link between Saddam Hussein's government and the September 11th attacks, "then- by all means- take Saddam out (you'll get no argument from me!)"; I presume that- had there been at least some overwhelming evidence of the Iraqi government's direct involvement (such as that which would show Saddam's regime knew exactly what was coming ahead of time, even were they not actively involved in its planning)- we would all have heard about it, in some form or fashion, by now: this suggests to me that definitive knowledge of a direct line of responsibility for September 11th stretching from Baghdad to four Boeing aircraft used as weapons of mass destruction does not, in fact, exist! Anticipatory Self-Defense does not well fly as a justification for military action against Iraq without either allies or Congressional authorization in the absence of such knowledge.

The Case for the need for a formal Declaration of War

It is rather disingenuous for the current Bush Administration to try and sneak authorization for an attack on Iraq past all of us- including our elected representatives in Congress- like Pedro Martinez trying to get a fast ball past Bernie Williams! At minimum, there should- obviously- be clear Congressional authorization by Joint Resolution: however, I myself would go further and say that- given the Constitution's requirement, in Article I, Section 8, clause 11, that "[(t)he Congress shall have Power] (t)o declare War"- a formal Declaration of War would, indeed, well be in order here. Whatever the threat from Iraq (and the threat is clearly debatable- from those who honestly think that Iraq is at the very least on the verge of acquiring a useable nuclear weapon to those who feel that his capability to create even biological and chemical weapons, let alone so-called "dirty bombs", is still quite compromised) and whatever the evidence that can be publicly used to so justify a military response to that threat, we are- despite the advances in technology, as well as time, since- no closer to that threat than we were to the threat of the first War we would refer to as a "World" one on 2 April 1917 when President Woodrow Wilson asked for, and received, a Declaration of War from Congress.

If we are going to analogize September 11th to an earlier "day of infamy" nearly 60 years earlier (and note that, even then, President Franklin Delano Roosevelt asked for a Declaration of War [probably because he knew he would have no problem at all getting it!]- even though, by Webster's definition of Anticipatory Self-Defense, he didn't [at least immediately] need one) and, thereby, historically justify our recent actions in Afghanistan, it would be better- let alone more accurate!- to now analogize our intentions toward Iraq to our one-time response to the threat once posed by the infamous "Zimmermann telegram" [in which then-German Foreign Secretary Arthur Zimmermann, in January 1917, attempted to entice Mexico to ally with the Central Powers by promising them help in gaining the return of Arizona, New Mexico and Texas; the message was intercepted by the British and eventually turned over to the Americans], to which any current threat from Saddam Hussein is surely comparable. President Bush should get his act together, make public what he can (and I recognize that there will, of necessity, be evidence of the threat from Saddam Hussein he cannot possibly make public, for to do so would be irresponsible- where not potentially impeachable! [though I assume he can let the leaders of both houses of Congress in on a fair piece more than he might be able to let the American People as a whole in on]) and then ask Congress for a formal Declaration of War against Iraq: if he's honest and forthright about all this (and I have no doubt the President can be), he should be able to get one if the evidence of a threat from Iraq is, in fact, there; where there might, indeed, be a fair amount of the quiverings of Congressional "Jello", an informed public will then certainly bring the necessary pressure to bear (and the fact that there will almost certainly be a fair number of malcontents- primarily in the House- who will likely vote 'Nay' regardless of the facts should disuade neither him nor his Administration from doing what's right, as long as they themselves are willing to go through the proper procedures of making sure we all understand it's right!)

But to treat an attack on Iraq as if it would be an overt moral equivalent of a covert operation not only threatens to undermine Constitutional checks and balances, and at the very time when these very checks and balances- vertical as well as horizontal- are potentially stressed by the newfound requirements of Homeland Security, it is also- and in the main- nothing short of pure Politics and well short of necessary Statesmanship. It is merely the philosophy of the "elected King"- largely (but not, by any means, at all exclusively) the bailiwick of the President's Republican Party (and, yes, there are a minority of Republicans who do not so subscribe)- raising its ugly head at a time when we the more need an "elected Leader". I fear, however, that minds have already been made up in the White House (which will only serve to make minds up in Congress as well as within the general public) and that there will be no formal Declaration of War; thus, I am afraid, we will end up making our own job- as we continue to pursue this War Against International Terrorism, as we have to- so much the harder.

 


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