Hitting Back?
The United States' Policy of Pre-Emptive Self-Defense Could Rewrite the Rules of Military Engagement

By Matt Donnelly     ABC News

Aug. 28    Anticipatory self-defense sounds like a political oxymoron and reads like ancient riddle: Can a person hit back before the first punch is thrown? In military terms, if a first strike is meant to defend, is it really a first strike?

These are just the questions the White House has to answer and not just for itself, but for the rest of the world.

While the United States looks for evidence that could link the al Qaeda terrorist network to Saddam Hussein, President Bush is demanding a "regime change" in Iraq and mulling the means to accomplish it.

The option championed by U.S. allies including, as of last week, Britain would be to reinstate U.N. weapons inspectors and oust Saddam through stronger sanctions.

But several scenarios for an invasion by U.S. forces have been reported in the last two months and on Monday the White House's lawyers made clear that Bush would not need Congress' approval to send in troops. Also on Monday, Vice President Dick Cheney told a gathering hosted in Nashville, Tenn., by the Veterans of Foreign Wars that Iraq's action and hostility created "an imperative for pre-emptive attack."

Legal scholars say the United States could attack Iraq out of self-defense, even before Iraq fires a single shot at U.S. troops, citing a pre-Civil War military definition that's found a second life in the war on terrorism.

"What we must not do is in the face of a mortal threat is to give in to wishful thinking or willful blindness," Cheney said. "We will not simply look away, hope for the best and leave the matter for some future administration to resolve."

Instant and Overwhelming

Famed American politician Daniel Webster defined "anticipatory self-defense" more than 150 years ago when he wrote that self-defense before an attack was justified if the danger was "instant, overwhelming, leaving no choice of means and no moment of deliberation."

Webster's words followed a 1837 naval skirmish called the Caroline incident, in which a U.S. ship called the Caroline was attacked by the British, just above Niagara Falls. The British said the ship's passengers supported a rebellion in Canada. Webster responded with a letter that laid out his definition. Webster's words were later reaffirmed after World War II during the Nuremberg Trials.

Though untested, scholars say there is room for Caroline decisions in the U.N. Charter, the treaty that still lays the largest groundwork for stability between states. The 1951 charter holds that one military can only fight another in self-defense against "an armed attack."

However, scholars point out that Webster's definition leaves several loopholes. The United States has been contemplating an attack on Iraq since Sept. 11, and in some ways for more than a decade, so there's been plenty of "deliberation."

Instead, the White House has used the term "pre-emptive" rather than "anticipatory." The difference is slight, but some say significant: Scholars argue it could blur the point where a threat of attack is considered "overwhelming."

The Point of No Return

At a West Point graduation ceremony in June, Bush talked directly about how the United States would approach enemies in the war on terror, which now could include Iraq: "The war on terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge."

Bush's speech signaled a shift in the doctrine of U.S. military intervention. Troops were sent into Afghanistan after Sept. 11 to prevent another attack on the United States. In 1991, the U.S. military fought Iraq on behalf of Kuwait with the support of Congress and the U.N. Security Council. An invasion of Iraq conceivably with only the White House's approval could violate the international laws that the United States has championed since World War II.

Critics warn that the evidence the United States needs to attack the point of no return has not been clearly defined, and has no precedent. Would the United States wait to invade until there was proof Iraq had built a chemical, biological or nuclear weapon? Or would Bush send in troops as soon as Iraq had all the components?

"The standards for invasion now are pretty cut-and-dry: If you're attacked, you can respond," said Sean Murphy, a professor of international law at George Washington University, "But if you make anticipatory self-defense the standard, you open an enormous Pandora's Box."

Rewriting the Rules

Because Webster's ruling has widely defined anticipatory self-defense, if the United States reinterprets its own standard, it could set a new precedent for the rest of the world.

"International law is largely based on custom, and those customs can change with time and circumstance," said Frederick Kirgis, a professor at Washington and Lee University.  "It's all whether you can get other nations to acquiesce to your assertions."

The major precedent for pre-emptive military action is Israel's Six-Day War in 1967, fought against Egypt, Syria, Jordan and Iraq.  Israel invaded its neighbors, citing the need to pre-empt an enemy invasion, but never provided full evidence or rationale for its actions. <<B.S.>>

The rest of the world led by the United Nations largely condemned Israel for the attacks.  Israel faced criticism again in 1981 including from the United States when it destroyed an Iraqi nuclear facility, claiming it needed to defend itself from the plant's capabilities. <<Demonstrates P.C. is pure B.S.>>

If the United States was to invade Iraq without a first strike, legal experts said the global community would expect a formal reason.

The White House is expected to lay out a larger definition of pre-emptive self-defense as well as several other defense initiatives in its annual National Security Strategy, which will be published and presented to Congress in September, according to National Security Council spokesman Michael Anton