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Borde-nough: Will Obama and Gates repudiate the Bush doctrine?

Published: March 20, 2009
Section: Opinions

President Barack Obama’s campaign message of “change” took on a new meaning last week on PBS’s Tavis Smiley. Or perhaps, if former Alabama Governor George Wallace got it right while campaigning for the presidency in 1968, Obama’s message took on a new value.

Back then, as a third party candidate, Wallace invoked a memorable monetary metaphor when he told supporters that there was “not a dime’s worth of difference” between the Republican and Democratic parties. If Obama’s (and George Bush’s) Secretary of Defense Robert Gates meant what he said to Smiley on March 11 about the preemptive use of force in international relations, the new administration’s take on Bush’s dangerous and unlawful position on this issue amounts to small change, indeed.

Smiley asked Gates whether there now exists “a need for a real, rigorous debate… about this so-called Bush doctrine – in other words, this notion of if we think you’re going to hit us, if we think you have something, we hit you first. If we find out you didn’t, we say, ‘oops, our mistake.’ ” Smiley’s question referred to the Bush administration’s stated policy of using preemptive force in America’s foreign relations, first enunciated in 2002 before the start of the Iraq war in a document called the “National Security Strategy of the United States.”

That strategy paper proclaimed that the US would take “action” (a word that, in the context of the document, clearly refers to the use of force) “against… emerging threats before they are fully formed.” “Terrorists” and “rogue states” were said to have given rise to a “new world” in which “the only path to peace and security [was] the path of action.” In the context of the paper, “action” and all derivatives of the verb “to act” clearly refer to the use of armed force. The policy declared that the US would use force “against… emerging threats before they are fully formed,” and “would not hesitate to act alone.” Not confining itself to a “reactive posture,” the US would “exercise [its] right of self-defense,” as the administration understood it, “by acting preemptively.”

The Bush administration was aware that its new strategy was at variance with international law, but downplayed the law’s significance. The strategy paper asserted (erroneously) that a consensus existed that “international law recognized that nations need not suffer an attack” before using force in self-defense “against forces that present an imminent danger of attack.” Acknowledging that the Bush doctrine contemplates more than the responses to “imminent danger[s]” that the strategy paper claimed that international law permits, the paper added that “[w]e must adapt the concept of imminent threat to… today’s adversaries.” At the start of the Iraq War in 2003, part of America’s stated justification for war in international law was that it had the right to use preemptive force to forestall an Iraqi attack.

So, what did Gates tell Smiley when Smiley asked whether it was “time to rethink the Bush doctrine? “If you are going to contemplate preempting an attack you had better be very, very confident of the intelligence.” Obama, suggested Gates, would be “very, very cautious about launching that kind of conflict.” The test for preemptive force, Gates concluded, “first of all will be are we going to be attacked here at home… and then the quality of the intelligence.”

If you’re looking for the part where Gates says that the Bush doctrine has gone the way of the dodo, having been rendered extinct by war-weary, fed-up voters who had America’s foreign relations in mind when they demanded “change” in November, you won’t find it. Instead, Gates used the language you’ve just read. To paraphrase Gates: the US will continue to threaten the world with a stated policy that the US will employ preemptive force, but you can trust Barack – he’ll be really, really cautious about it. Or, to put it another way, what was the Bush doctrine is now the Obama doctrine.

What are the implications of this? For starters, US policy will remain at odds with international law. Under the United Nations Charter, a treaty to which the US and almost all nations of the world have acceded, UN member states must “refrain in their international relations from the use of force against the territorial integrity of another state, or in any other manner inconsistent with the purposes of the United Nations.” The first two purposes that the UN listed in its Charter are “to maintain international peace and security” and to “take… appropriate measures to strengthen universal peace.”

Exceptions to the Charter’s prohibition of the use of force exist only for UN Security Council enforcement actions and the right of self-defense. As to the latter, the Charter states: “[n]othing in the…Charter…impair[s] the inherent right of…self-defense if an armed attack occurs against a Member of the United Nations.” Interpreting this clause, some authorities hold that a state has no right to use force in self-defense until an armed attack actually occurs. Others say that the Charter allows for “anticipatory self-defense,” so that force may be used if an armed attack is “imminent,” in other words, clearly about to occur. The Bush administration’s strategy paper went beyond either concept, arguing that the US must unilaterally “adapt” the meaning of “imminent” to use force “against such emerging threats before they are fully formed.” In Iraq, Saddam Hussein’s yet-undiscovered arsenal of weapons of mass destruction served as the threat permitting the preemptive use of force under this “adapted” notion of imminence.

Usually, when countries transgress the Charter’s use-of-force, their leaders stretch evidence to claim that their actions in fact fit within the rubric of arguably permissible self-defense, or argue that necessity forced them to break the rules. Only the Bush administration, and now, perhaps, its successor in office, has seriously argued that the Charter permits preemptive force.

Not even the Bush administration endeavored to explain how the country’s preemptive force policy squared with customary international law rules, which exist separately from the Charter, requiring force used in self-defense to be necessary and proportionate to an attack. Preemptive force is used so early that there’s no way of knowing if it’s necessary or proportionate. It’s instructive to think of self-defense in the context of criminal violence: imagine if a defendant charged with assault or murder who pleaded self-defense needed only to show that he thought that his victim had a weapon and that he might, at some point, threaten the defendant with it?

The notion of the US government playing fast and loose with rules designed “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” is bad enough in itself. Drafting their document even before the full extent of the terrible human and economic costs of World War II could be known, the Charter’s drafters were clear in their determination “to ensure…that armed force shall not be used, save in the common interest.” The preemptive force policy has done its part to suggest that America is a lawbreaker, a country to be scorned rather than trusted because it considers itself above these important rules.

Unfortunately, the Bush/Obama doctrine does something far worse than make the US look rotten. How a treaty like the UN Charter is interpreted depends in large part upon the practice of states that are party to the treaty. When big states flout the rules but then refer back to them to attempt strained justifications or to apologize, they affirm that the rules they’re flouting still apply. Less powerful countries, where wars tend to begin, don’t have the resources for their leaders to feel that they can break these rules with impunity. Those leaders know that rule-breaking can provide the legal basis for foreign intervention, which is generally the last thing they want.

The law has salutary effects even on big countries that no one doubts will sometimes break it. Law leads them to try (at least if they’re not operating under the Bush/Obama doctrine) to confine their actions, where possible, to ones that can be justified or explained in a way that will give rise to the least international opprobrium. These rules haven’t ended war, but they’ve certainly placed constraints on it.

Loosening the rules loosens these constraints. The Bush/Obama doctrine interprets the UN Charter’s self-defense rule more loosely than ever. It beats a path into the wilds of war, setting a precedent that dilutes the standards by which international law and global opinion judge uses of force.

Peace isn’t always just, but war costs so much that anyone thinking of starting one ought to be very circumspect about it. Living memory, sadly, doesn’t live forever. The Bush doctrine suggested that America’s recent war was a distant sideshow requiring only a little extra borrowing to pay for it and has led Americans to forget why rules limiting war exist. Obama promised change, but if he and Gates don’t repudiate the Bush doctrine, they’ll wind up leaving Americans with a large bill payable in lives and money on some dark day in the future.