This is an update to my earlier post, "Preemption Doctrine Adds Nuclear Option." The respected White House correspondent, Helen Thomas, turned up the heat under Presidential Spokesman Scott McClellan on the general issue of preemptive war:
Q Does the President know that he's in violation of international law when he advocates preemptive war? The U.N. Charter, Geneva, Nuremberg. We violate international law when we advocate attacking a country that did not attack us.
MR. McCLELLAN: Helen, I would just disagree with your assessment. First of all, preemption is a longstanding principle of American foreign --
Q It's not a long-standing principle with us. It's your principle.
MR. McCLELLAN: Have you asked your question?
Q It's a violation of international law.
MR. McCLELLAN: First of all, let me back up, preemption is a longstanding principle of American foreign policy. It is also part --
Q It's never been.
MR. McCLELLAN: It is also part of an inherent right to self-defense. But what we seek to do is to address issues diplomatically by working with our friends and allies, and working with regional partners....And it's important what September 11th taught us --
Q The heavy emphasis of your paper today is war and preemptive war.
MR. McCLELLAN: Can I finish responding to your question, because I think it's important to answer your question. It's a good question and it's a fair question. But first of all, are we supposed to wait until a threat fully materializes and then respond? September 11th --
Q Under international law you have to be attacked first.
MR. McCLELLAN: Helen, you're not letting me respond to your question. You have the opportunity to ask your question, and I would like to be able to provide a response so that the American people can hear what our view is. This is not new in terms of our foreign policy. This has been a longstanding principle, the question that you bring up. But again, I'll put the question back to you. Are we supposed to wait until a threat fully materializes before we respond --
Q You had no threat from Iraq.
MR. McCLELLAN: September 11th taught us --
Q That was not a threat from Iraq.
MR. McCLELLAN: -- some important lessons. One important lesson it taught us was that we must confront threats before they fully materialize. That's why we are working to address the threats when it comes to nuclear issues involving Iran and North Korea. That's why we're pursuing diplomatic solutions to those efforts, by working with our friends and allies, by working with regional partners who understand the stakes involved and understand the consequences of failing to confront those threats early, before it's too late.
Q What are the consequences?
MR. McCLELLAN: The consequences of a nuclear armed Iran, they are very serious in terms of stability --
Q Are you warning Iran that it has consequences as you did Iraq?
MR. McCLELLAN: Well, what has happened with Iran right now is that the matter has been reported to the United Nations Security Council because the regime in Iran has failed to come into compliance with its safeguard obligations, and they continue to engage in enrichment related activity. And we have supported the efforts of the Europeans to resolve this matter diplomatically, but the regime in Iran continues to pursue the wrong course.
They need to change their behavior. They continue to defy the international community. That's why the matter has been reported to the Security Council. We have now entered a new phase of diplomacy. And there are a lot of discussions going on about how to prevent the regime from developing a nuclear weapon capability, or developing nuclear weapons. And that's why those discussions are ongoing.
This is an important issue. It outlines in our national security strategy that this is one of the most serious challenges that we face.
Q Are we threatening Iran with preemptive war?
MR. McCLELLAN: We're trying to resolve this in a diplomatic manner by working with our friends and allies.
Was Helen Thomas's hair on fire, so to speak? Wasn't she simply in error in stating that preemption has never before been part of U.S. strategic policy? Discussing the 2006 WSS, Stephen D. Welsh, of the Center for Defense Initiatives' International Security Law Project, cites Thomas's line of questioning as evidencing "skittishness." Welsh had written, giving the backround for the 2002 WSS, that
The most widely accepted modern standard for anticipatory self-defense was articulated by U.S. Secretary of State Daniel Webster in diplomatic correspondence with his British counterpart over the Caroline incident ... and consisted of two prongs. One was that the need to use force in anticipatory self-defense must first rise to the level of being a necessity, and one that is instant, overwhelming, and leaving no choice of means and no moment for deliberation. The other requirement was that the action taken must be proportionate to the threat and not be excessive.
So, pace Thomas, preemption has long been an accepted part of just war doctrine. But Welsh's commentary on the 2006 WSS notes that
The NSS embraces a concept of preemption that incorporates a broader calculus more reminiscent of civilian tort law and tactical military planning, including the scope of harm resulting from a worst-case scenario and an analysis of risk and generalized threat as a broader concept, as opposed to a specific decision by a potential adversary to launch an imminent attack.
...
In the context of preemptive war, it is possible the NSS may be seeking not simply to push boundaries, but to reinterpret the original standard in the context of current developments and advances in technology. Analogous to an activist judge [sic] pushing a “living Constitution” that seeks to stretch 200-year-old standards to cover modern activities without the benefit of constitutional amendments, the NSS doctrine may seek to rewrite the old anticipatory self-defense standard in the following manner.The traditional rule, it might be arguing, was not just that one could call a first-strike an act of self-defense if an enemy was itself poised to attack, but really meant that one could call a first-strike an act of self-defense if a potential adversary posed a cognizable threat, and the first-strike was made at a point in time after which the results of an enemy attack would be devastating against civilians. Such a standard, applied in the Cold War, however, could have produced dangerous results.
Welsh (a master of understatement) nowhere explicitly acknowledges that the 2006 NSS includes nuclear weaponry--apparently for the first time--among the not-to-be-ruled-out means available under the Bush Administation's already dangerously expansive preemption doctrine. (The way things are tending, everyone's hair may catch on fire.)
[Correction: Helen Thomas is affiliated with Hearst, not AP, as earlier posted--thanks to Minh Nguyen for setting me straight.]
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