September 23, 2002
Like all Americans I have been wrestling with the question of what our country needs to do to defend itself from the kind of intense, focused and enabled hatred that brought about September 11th, and which at this moment must be presumed to be gathering force for yet another attack. I'm speaking today in an effort to recommend a specific course of action for our country which I believe would be preferable to the course recommended by President Bush. Specifically, I am deeply concerned that the policy we are presently following with respect to Iraq has the potential to seriously damage our ability to win the war against terrorism and to weaken our ability to lead the world in this new century.
FIRST THING FIRST : WAR ON TERRORISM
To begin with, I believe we should focus our efforts first and foremost against those who attacked us on September 11th and have thus far gotten away with it. The vast majority of those who sponsored, planned and implemented the cold blooded murder of more than 3,000 Americans are still at large, still neither located nor apprehended, much less punished and neutralized. I do not believe that we should allow ourselves to be distracted from this urgent task simply because it is proving to be more difficult and lengthy than predicted. Great nations persevere and then prevail. They do not jump from one unfinished task to another.
We are perfectly capable of staying the course in our war against Osama Bin Laden and his terrorist network, while simultaneously taking those steps necessary to build an international coalition to join us in taking on Saddam Hussein in a timely fashion.
I don't think that we should allow anything to diminish our focus on avenging the 3,000 Americans who were murdered and dismantling the network of terrorists who we know to be responsible for it. The fact that we don't know where they are should not cause us to focus instead on some other enemy whose location may be easier to identify.
Nevertheless, President Bush is telling us that the most urgent requirement of the moment - - right now - - is not to redouble our efforts against Al Qaeda, not to stabilize the nation of Afghanistan after driving his host government from power, but instead to shift our focus and concentrate on immediately launching a new war against Saddam Hussein. And he is proclaiming a new, uniquely American right to pre-emptively attack whomsoever he may deem represents a potential future threat.
Moreover, he is demanding in this high political season that Congress speedily affirm that he has the necessary authority to proceed immediately against Iraq and for that matter any other nation in the region, regardless of subsequent developments or circumstances. The timing of this sudden burst of urgency to take up this cause as America's new top priority, displacing the war against Osama Bin Laden, was explained by the White House Chief of Staff in his now well known statement that "from an advertising point of view, you don't launch a new product line until after labor day."
Nevertheless, Iraq does pose a serious threat to the stability of the Persian Gulf and we should organize an international coalition to eliminate his access to weapons of mass destruction. Iraq's search for weapons of mass destruction has proven impossible to completely deter and we should assume that it will continue for as long as Saddam is in power. Moreover, no international law can prevent the United States from taking actions to protect its vital interests, when it is manifestly clear that there is a choice to be made between law and survival. I believe, however, that such a choice is not presented in the case of Iraq. Indeed, should we decide to proceed, that action can be justified within the framework of international law rather than outside it. In fact, though a new UN resolution may be helpful in building international consensus, the existing resolutions from 1991 are sufficient from a legal standpoint.
We also need to look at the relationship between our national goal of regime change in Iraq and our goal of victory in the war against terror. In the case of Iraq, it would be more difficult for the United States to succeed alone, but still possible. By contrast, the war against terror manifestly requires broad and continuous international cooperation. Our ability to secure this kind of cooperation can be severely damaged by unilateral action against Iraq. If the Administration has reason to believe otherwise, it ought to share those reasons with the Congress -- since it is asking Congress to endorse action that might well impair a more urgent task : continuing to disrupt and destroy the international terror network.
I was one of the few Democrats in the U.S. Senate who supported the war resolution in 1991. And I felt betrayed by the first Bush administration's hasty departure from the battlefield, even as Saddam began to renew his persecution of the Kurds of the North and the Shiites of the South - - groups we had encouraged to rise up against Saddam. It is worth noting, however, that the conditions in 1991 when that resolution was debated in Congress were very different from the conditions this year as Congress prepares to debate a new resolution. Then, Saddam had sent his armies across an international border to invade Kuwait and annex its territory. This year, 11 years later, there is no such invasion; instead we are prepared to cross an international border to change the government of Iraq. However justified our proposed action may be, this change in role nevertheless has consequences for world opinion and can affect the war against terrorism if we proceed unilaterally.
Secondly, in 1991, the first President Bush patiently and skillfully built a broad international coalition. His task was easier than that confronted his son, in part because of Saddam's invasion of Kuwait. Nevertheless, every Arab nation except Jordan supported our military efforts and some of them supplied troops. Our allies in Europe and Asia supported the coalition without exception. Yet this year, by contrast, many of our allies in Europe and Asia are thus far opposed to what President Bush is doing and the few who support us condition their support on the passage of a new U.N. resolution.
Third, in 1991, a strong United Nations resolution was in place before the Congressional debate ever began; this year although we have residual authority based on resolutions dating back to the first war in Iraq, we have nevertheless begun to seek a new United Nations resolution and have thus far failed to secure one.
Fourth, the coalition assembled in 1991 paid all of the significant costs of the war, while this time, the American taxpayers will be asked to shoulder hundreds of billions of dollars in costs on our own.
Fifth, President George H. W. Bush purposely waited until after the mid-term elections of 1990 to push for a vote at the beginning of the new Congress in January of 1991. President George W. Bush, by contrast, is pushing for a vote in this Congress immediately before the election. Rather than making efforts to dispel concern at home an abroad about the role of politics in the timing of his policy, the President is publicly taunting Democrats with the political consequences of a "no" vote -- even as the Republican National Committee runs pre-packaged advertising based on the same theme -- in keeping with the political strategy clearly described in a White House aide's misplaced computer disk, which advised Republican operatives that their principal game plan for success in the election a few weeks away was to "focus on the war." Vice President Cheney, meanwhile indignantly described suggestions of political motivation "reprehensible." The following week he took his discussion of war strategy to the Rush Limbaugh show.
The foreshortening of deliberation in the Congress robs the country of the time it needs for careful analysis of what may lie before it. Such consideration is all the more important because of the Administration's failure thus far to lay out an assessment of how it thinks the course of a war will run -- even while it has given free run to persons both within and close to the administration to suggest that this will be an easy conquest. Neither has the Administration said much to clarify its idea of what is to follow regime change or of the degree of engagement it is prepared to accept for the United States in Iraq in the months and years after a regime change has taken place.
By shifting from his early focus after September 11th on war against terrorism to war against Iraq, the President has manifestly disposed of the sympathy, good will and solidarity compiled by America and transformed it into a sense of deep misgiving and even hostility. In just one year, the President has somehow squandered the international outpouring of sympathy, goodwill and solidarity that followed the attacks of September 11th and converted it into anger and apprehension aimed much more at the United States than at the terrorist network - - much as we manage to squander in one year's time the largest budget surpluses in history and convert them into massive fiscal deficits. He has compounded this by asserting a new doctrine -- of preemption.
The doctrine of preemption is based on the idea that in the era of proliferating WMD, and against the background of a sophisticated terrorist threat, the United States cannot wait for proof of a fully established mortal threat, but should rather act at any point to cut that short.
The problem with preemption is that in the first instance it is not needed in order to give the United States the means to act in its own defense against terrorism in general or Iraq in particular. But that is a relatively minor issue compared to the longer-term consequences that can be foreseen for this doctrine. To begin with, the doctrine is presented in open-ended terms, which means that if Iraq if the first point of application, it is not necessarily the last. In fact, the very logic of the concept suggests a string of military engagements against a succession of sovereign states : Syria, Libya, North Korea, Iran, etc., wherever the combination exists of an interest in weapons of mass destruction together with an ongoing role as host to or participant in terrorist operations. It means also that if the Congress approves the Iraq resolution just proposed by the Administration it is simultaneously creating the precedent for preemptive action anywhere, anytime this or any future president so decides.
The Bush Administration may now be realizing that national and international cohesion are strategic assets. But it is a lesson long delayed and clearly not uniformly and consistently accepted by senior members of the cabinet. From the outset, the Administration has operated in a manner calculated to please the portion of its base that occupies the far right, at the expense of solidarity among Americans and between America and her allies.
On the domestic front, the Administration, having delayed many months before conceding the need to create an institution outside the White House to manage homeland defense, has been willing to see progress on the new department held up, for the sake of an effort to coerce the Congress into stripping civil service protections from tens of thousands of federal employees.
Far more damaging, however, is the Administration's attack on fundamental constitutional rights. The idea that an American citizen can be imprisoned without recourse to judicial process or remedies and that this can be done on the say-so of the President or those acting in his name, is beyond the pale.
Regarding other countries, the Administration's disdain for the views of others is well documented and need not be reviewed here. It is more important to note the consequences of an emerging national strategy that not only celebrates American strengths, but appears to be glorifying the notion of dominance. If what America represents to the world is leadership in a commonwealth of equals, then our friends are legion; if what we represent to the world is empire, then it is our enemies who will be legion.
At this fateful juncture in our history it is vital that we see clearly who are our enemies and that we deal with them. It is also important, however, that in the process we preserve not only ourselves as individuals, but our nature as a people dedicated to the rule of law.
DANGERS OF ABANDONING IRAQ
Moreover, if we quickly succeed in a war against the weakened and depleted fourth rate military of Iraq and then quickly abandon that nation as President Bush has abandoned Afghanistan after quickly defeating a fifth rate military there, the resulting chaos could easily pose a far greater danger to the United States than we presently face from Saddam. We know that he has stored secret supplies of biological and chemical weapons throughout his country.
We have no evidence, however, that he has shared any of those weapons with terrorist group. However, if Iraq came to resemble Afghanistan -- with no central authority but instead local and regional warlords with porous borders and infiltrating members of Al Qaeda than these widely dispersed supplies of weapons of mass destruction might well come into the hands of terrorist groups.
If we end the war in Iraq, the way we ended the war in Afghanistan, we could easily be worse off than we are today. When Secretary Rumsfield was asked recently about what our responsibility for restabilizing Iraq would be in an aftermath of an invasion, he said, "that's for the Iraqis to come together and decide."
During one of the campaign debates in 2000 when then Governor Bush was asked if America should engage in any sort of "nation building" in the aftermath of a war in which we have involved our troops, he stated gave the purist expression of what is now a Bush doctrine : "I don't think so. I think what we need to do is convince people who live in the lands they live in to build the nations. Maybe I'm missing something here. We're going to have a kind of nation building corps in America? Absolutely not."
The events of the last 85 years provide ample evidence that our approach to winning the peace that follows war is almost as important as winning the war itself. The absence of enlightened nation building after World War I led directly to the conditions which made Germany vulnerable to fascism and the rise to Adolph Hitler and made all of Europe vulnerable to his evil designs. By contrast the enlightened vision embodied in the Marshall plan, NATO, and the other nation building efforts in the aftermath of World War II led directly to the conditions that fostered prosperity and peace for most the years since this city gave birth to the United Nations.
Two decades ago, when the Soviet Union claimed the right to launch a pre-emptive war in Afghanistan, we properly encouraged and then supported the resistance movement which, a decade later, succeeded in defeating the Soviet Army's efforts. Unfortunately, when the Russians left, we abandoned the Afghans and the lack of any coherent nation building program led directly to the conditions which fostered Al Qaeda terrorist bases and Osama Bin Laden's plotting against the World Trade Center. Incredibly, after defeating the Taliban rather easily, and despite pledges from President Bush that we would never again abandon Afghanistan we have done precisely that. And now the Taliban and Al Qaeda are quickly moving back to take up residence there again. A mere two years after we abandoned Afghanistan the first time, Saddam Hussein invaded Kuwait. Following a brilliant military campaign, the U.S. abandoned the effort to destroy Saddam's military prematurely and allowed him to remain in power.
What is a potentially even more serious consequence of this push to begin a new war as quickly as possible is the damage it can do not just to America's prospects to winning the war against terrorism but to America's prospects for continuing the historic leadership we began providing to the world 57 years ago, right here in this city by the bay.
WHAT CONGRESS SHOULD DO
I believe, therefore, that the resolution that the President has asked Congress to pass is much too broad in the authorities it grants, and needs to be narrowed. The President should be authorized to take action to deal with Saddam Hussein as being in material breach of the terms of the truce and therefore a continuing threat to the security of the region. To this should be added that his continued pursuit of weapons of mass destruction is potentially a threat to the vital interests of the United States. But Congress should also urge the President to make every effort to obtain a fresh demand from the Security Council for prompt, unconditional compliance by Iraq within a definite period of time. If the Council will not provide such language, then other choices remain open, but in any event the President should be urged to take the time to assemble the broadest possible international support for his course of action. Anticipating that the President will still move toward unilateral action, the Congress should establish now what the administration's thinking is regarding the aftermath of a US attack for the purpose of regime change.
Specifically, Congress should establish why the president believes that unilateral action will not severely damage the fight against terrorist networks, and that preparations are in place to deal with the effects of chemical and biological attacks against our allies, our forces in the field, and even the home-front. The resolution should also require commitments from the President that action in Iraq will not be permitted to distract from continuing and improving work to reconstruct Afghanistan, an that the United States will commit to stay the course for the reconstruction of Iraq.
The Congressional resolution should make explicitly clear that authorities for taking these actions are to be presented as derivatives from existing Security Council resolutions and from international law : not requiring any formal new doctrine of pre-emption, which remains to be discussed subsequently in view of its gravity.
Last week President Bush added a troubling new element to this debate by proposing a broad new strategic doctrine that goes far beyond issues related to Iraq and would effect the basic relationship between the United States and the rest of the world community. Article 51 of the United Nations charter recognizes the right of any nation to defend itself, including the right in some circumstances to take pre-emptive actions in order to deal with imminent threats. President Bush now asserts that we will take pre-emptive action even if we take the threat we perceive is not imminent. If other nations assert the same right then the rule of law will quickly be replaced by the reign of fear -- any nation that perceives circumstances that could eventually lead to an imminent threat would be justified under this approach in taking military action against another nation. An unspoken part of this new doctrine appears to be that we claim this right for ourselves -- and only for ourselves. It is, in that sense, part of a broader strategy to replace ideas like deterrence and containment with what some in the administration "dominance."
This is because President Bush is presenting us with a proposition that contains within itself one of the most fateful decisions in our history: a decision to abandon what we have thought was America's mission in the world - - a world in which nations are guided by a common ethic codified in the form of international law - - if we want to survive.
AMERICA'S MISSION IN THE WORLD
We have faced such a choice once before, at the end of the second World War. At that moment, America's power in comparison to the rest of the world was if anything greater than it is now, and the temptation was clearly to use that power to assure ourselves that there would be no competitor and no threat to our security for the foreseeable future. The choice we made, however, was to become a co-founder of what we now think of as the post-war era, based on the concepts of collective security and defense, manifested first of all in the United Nations. Through all the dangerous years that followed, when we understood that the defense of freedom required the readiness to put the existence of the nation itself into the balance, we never abandoned our belief that what we were struggling to achieve was not bounded by our own physical security, but extended to the unmet hopes of humankind. The issue before us is whether we now face circumstances so dire and so novel that we must choose one objective over the other.
So it is reasonable to conclude that we face a problem that is severe, chronic and likely to become worse over time.
But is a general doctrine of pre-emption necessary in order to deal with this problem? With respect to weapons of mass destruction, the answer is clearly not. The Clinton Administration launched a massive series of air strikes against Iraq for the state purpose of setting back his capacity to pursue weapons of mass destruction. There was no perceived need for new doctrine or new authorities to do so. The limiting factor was the state of our knowledge concerning the whereabouts of some assets, and a concern for limiting consequences to the civilian populace, which in some instances might well have suffered greatly.
Does Saddam Hussein present an imminent threat, and if he did would the United States be free to act without international permission? If he presents an imminent threat we would be free to act under generally accepted understandings of article 51 of the UN Charter which reserves for member states the right to act in self-defense.
If Saddam Hussein does not present an imminent threat , then is it justifiable for the Administration to be seeking by every means to precipitate a confrontation, to find a cause for war, and to attack? There is a case to be made that further delay only works to Saddam Hussein's advantage, and that the clock should be seen to have been running on the issue of compliance for a decade : therefore not needing to be reset again to the starting point. But to the extent that we have any concern for international support, whether for its political or material value, hurrying the process will be costly. Even those who now agree that Saddam Hussein must go, may divide deeply over the wisdom of presenting the United States as impatient for war.
At the same time, the concept of pre-emption is accessible to other countries. There are plenty of potential imitators : India/Pakistan; China/Taiwan; not to forget Israel/Iraq or Israel/Iran. Russia has already cited it in anticipation of a possible military push into Georgia, on grounds that this state has not done enough to block the operations of Chechen rebels. What this doctrine does is to destroy the goal of a world in which states consider themselves subject to law, particularly in the matter of standards for the use of violence against each other. That concept would be displaced by the notion that there is no law but the discretion of the President of the United States.
I believe that we can effectively defend ourselves abroad and at home without dimming our principles. Indeed, I believe that our success in defending ourselves depends precisely on not giving up what we stand for.
JACK M. BALKIN
September 22, 2002
The Most Dangerous Person On Earth
It's Not Who Bush Would Like You To Think It Is
When George W. Bush was governor of Texas, his basic strategy was to stake out a position and refuse to budge, hoping to bully others into acquiescing. Only when met with strong opposition did he back down and compromise. We are seeing the same strategy in his policy over Iraq. In the past weeks, the president has attempted to bully the United Nations and now Congress into allowing him to attack Iraq and depose its leader. He is likely to get his wish. But the larger problem is not what will happen if no one stands up to Saddam Hussein. It is what will happen if no one stands up to the president and his vision of moral clarity.
Our Constitution left the power to declare war to Congress because of the fear that if the president could act unilaterally, he might seek to aggrandize himself by taking the country into one war after another. Although the president could always defend the nation if attacked, he could not initiate hostilities without Congress' approval. In the 20th century, Congress' role has receded of necessity, so the president's power to make war has been hemmed in largely by domestic politics, the threat of nuclear reprisal and international law.
The Bush administration's new policy of pre-emptive attacks is a dangerous addition to this mixture, creating a host of bad incentives. Simply by announcing future threats that deserve pre-emptive action, presidents can seize control of the political stage. A president who takes the country to war pushes aside all other concerns. By shifting the nation's forces from one military offensive to another, he can divert attention from domestic failures and foreign policy blunders. The more often the president attacks other countries pre-emptively, the more likely it becomes that our country will be attacked in turn. The president can then justify additional military action in response and no patriotic American will oppose it.
In this way, the president can effectively govern through war, with disastrous consequences for the nation and for the world. Armed with the doctrine of military pre-emption, the perpetual political campaign perfected by our last president might well become the perpetual military campaign of future presidents.
President Bush had good reason to take us to war after Sept. 11. Still, he has not accomplished his stated goal of eliminating al Qaeda or capturing Osama bin Laden. With victory not achieved and Afghanistan still unstable, he has now attempted to shift our attention to a new war with Iraq. Again, he may well have excellent reasons for doing so. But we must pay attention to the larger picture. Members of Congress debating authorization for an attack on Iraq should ask the president tough questions about what future military actions he is considering. The way the president's foreign policy is proceeding, Iraq may not be the last war he asks us to fight.
The president is right about one thing, however. Today the world faces a single man armed with weapons of mass destruction, manifesting an aggressive, bullying attitude, who may well plunge the world into chaos and bloodshed if he miscalculates. This person, belligerent, arrogant and sure of himself, truly is the most dangerous person on Earth. The problem is that his name is George W. Bush and he is our president.
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. His latest book is "The Laws of Change" (Schocken Books, 2002).