Notre Dame Law Review Volume 79 Issue 4 The Changing Laws of War: Do We Need a Article 7 New Legal Regime after September 11? 7-1-2004 The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventive War William C. Bradford Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation William C. Bradford, The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventive War, 79 Notre Dame L. Rev. 1365 (2004). Available at: http://scholarship.law.nd.edu/ndlr/vol79/iss4/7 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. "THE DUTY TO DEFEND THEM":' A NATURAL LAW JUSTIFICATION FOR THE BUSH DOCTRINE OF PREVENTIVE WAR William C. Bradford* INTRODUCTION We cannot stand by and do nothing while dangers gather. 2 President George W. Bush The horrific events of September 11, 2001 heralded an Age of Terror 3 in which wicked malcreants bent on acquiring weapons of mass destruction 4 (WMD) will abjure all legal restraint 5 and deliber- * Assistant Professor of Law, Indiana University School of Law, Indianapolis; Articles Editor, Journal of National Security Law and Policy; U.S. Army, 1989-2001. I am indebted to colleagues who were gracious enough to review and comment upon earlier drafts, includingJeffAddicott, Lou Beres, Robert Chesney, Steve Dycus, Derek Jinks, Gerard Magliocca, Jordan Paust, Mike Ramsey, Lee Schinasi, Anne-Marie Slaughter, Jim Torke, Ruth Wedgwood, and George Wright. I have been fortunate to have the invaluable assistance of dedicated librarians Michelle Burdsall and Richard Humphrey; Nate Leach and Keith Donnelly provided loyal research assistance. 1 See Glenn Frankel & Dana Milbank, In Britain, Bush Answers Critics on Iraq, WASH. POST, Nov. 20, 2003, at Al ("The people have given us the duty to defend them, and that duty sometimes requires the violent restraint of violent men.") (quoting President George W. Bush) 2 President's Address to the United Nations General Assembly, 38 WEEKLY COMP. PREs. Doc. 1529 (Sept. 12, 2002). 3 Terrorism, defined as the "threat or use of violence in order to create extreme fear and anxiety in a target group so as to coerce them to meet the political objectives of the perpetrators," has descended into new depths of destructiveness and barbarism in recent years. Oscar Schachter, The ExtraterritorialUse of Force Against Terrorist Bases, 11 Hous. J. INT'L L. 309, 309 (1989). 4 A "weapon of mass destruction" is defined as "any weapon or device that is intended, or has the capability, to cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact of... toxic or poi- sonous chemicals or their precursors; . a disease organism; or . radiation or radioactivity." 50 U.S.C. § 2302(1) (2000). 5 Terrorism, the "totalitarian form of war and politics," rejects any obligation to adhere to the dictates of law or morality and in so doing "shatters international hu- manitarian law." Emanuel Gross, Thwarting Terrorist Acts by Attacking the Perpetratorsor 1365 1366 NOTRE DAME LAW REVIEW [VOL- 79:4 ately murder civilians to advance their anti-civilizational designs. The sobering prospect that successive attacks in which enormously destruc- tive nuclear, chemical, or biological weapons might be brought to bear upon its civilian population 6 by suicidal terrorists living within its midst greatly enhanced its perception of vulnerability and prompted the United States to undertake a dramatic revision of its national se- curity strategy in response to this existential threat. 7 The September 2002 National Security Strategy of the United States of America, 8 also known as the Bush Doctrine, warns transnational terrorists and rogue states that the United States has abandoned deterrence in favor of a robust and proactive strategic doctrine that sanctions the use of mili- tary force to eliminate threats posed by the intersection of WMD and an emerging breed of undeterrable adversaries, 9 before they can ma- terialize. Specifically, the Bush Doctrine unmistakably claims the legal Their Commanders as an Act of Self-Defense: Human Rights Versus the State's Duty to Protect Its Citizens, 15 TEMP. INT'L & COMP. L.J. 195, 233 (2001). Among the more reprehensible tactics they employ is sheltering their number in areas populated by civilians in order to "exploit the rules of the game ... which categorically state that the civilian popula- tion must not be involved in the armed conflict." Id. at 234. This and other violations of international humanitarian law were committed by forces fighting for the Saddam Hussein regime in Iraq. See Neil A. Lewis, U.S. Is Preparing to Try Iraqis for Crimes Against Humanity and Mistreating Prisoners, N.Y. TIMES, Mar. 29, 2003, at B14 (listing Iraqi violations of international humanitarian law, including mistreatment, perfidious surrender, fighting in civilian garb, using civilians as human shields, and employing hospitals for cover). 6 Fear that the terrorists responsible would attempt further attacks shaped the perceptions of the public and of government decisionmakers in the aftermath of Sep- tember 11. BOB WOODWARD, BUSH AT WAR 349 (2002). 7 It may be impossible to overestimate the severity of the threat posed by the intersection of transnational terrorism and the proliferation of WMD. See KATHLEEN BAILEY, DOOMSDAY WEAPONS IN THE HANDS OF MANY 6 (1991) (describing this intersec- tion as the gravest threat ever posed to U.S. national security); Guy B. Roberts, The CounterproliferationSelf-Help Paradigm:A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction, 27 DENV. J. INT'L L. & POL'Y 483, 483-84 (1999) ("The proliferation of weapons of mass destruction ... is one of the most significant and protracted threats to international security . ever faced by mankind."). 8 See NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA (2002), available at www.whitehouse.gov/nsc/nss.pdf [hereinafter NATIONAL SECURITY STRATEGY]. 9 The Bush Doctrine contends that deterrence, predicated upon the mainte- nance of the threat that attacks against the United States will be met with an over- whelming response and thus redound to the detriment of the attacker, is ineffective against terrorists and rogue states who have no values against which the threat of force in response might counsel restraint. See id. at 15 (contending the "terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents; whose so-called soldiers seek martyrdom in death," is not susceptible to deterrence). 2004] "DUTY TO DEFEND THEM" 1367 right to unilaterally preempt and eliminate an incipient threat that, even if not yet operational, will, if permitted to mature, be reducible only at a much greater cost in lives and treasure. 10 For the United States, the lesson of September 11 is unmistakably clear: "Take care of threats early."'" Immediately upon its promulgation the Bush Doctrine sparked a legal debate over whether the use of military force to prevent megater- rorism on the order of September 11 constituted one of the permissi- ble exceptions to a general prohibition on the use of force in international relations, and whether the substantive and procedural obligations concerning resolution of international disputes incum- bent upon member states of the United Nations could countenance the resort to self-help under such circumstances. 12 Although the U.S.- led intervention against and deposition of the Hussein regime in Iraq in March and April 2003 was predicated not upon an argument in favor of preventive war,' 3 but upon far less controversial legal justifica- tions,' 4 the characterization of the grounds for intervention for do- 10 See id. (stating that the "immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries' choice of weapons, do not permit... let[ting] our enemies strike first"); see also NATIONAL STRATEGY TO COMBAT WEAPONS OF MASS DESTRUCTION 3 (2002), available at http:/www.whitehouse.gov/ news/releases/2002/12/WMDStrategy.pdf ("Because deterrence may not succeed, and because of the potentially devastating consequences of WMD use against our forces and civilian population, U.S. military forces and appropriate civilian agencies must have the capability to defend against WMD-armed adversaries, including in ap- propriate cases through preemptive measures."); David E. Langer, Bush Renews Pledge to Strike First to Counter Terror Threats, N.Y. TIMES, Jul. 20, 2002, at A3 (reporting a message from President Bush to U.S. troops home from Afghanistan that the United States will preemptively strike against states developing WMD and that "America must act against these terrible threats before they're fully formed"). 11 WOODWARD, supra note 6, at 350 (quoting President George W. Bush in a dis- cussion with National Security Adviser Condoleeza Rice). 12 SeeJordan J. Paust, Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond, 35 CORNELL INT'L L.J. 533, 533 (2002) (describing debates). 13 The Bush Doctrine, rather than establishing an expanded doctrine of preemp- tive self-defense, transcends preemption in favor of the doctrine of preventive war. See infra note 203 (defining the doctrine of preventive war). Some use the terms preemption and prevention interchangeably. See, e.g., George K. Walker, The Lawful- ness of Operation EnduringFreedom's Self-Defense Responses, 37 VAL. U. L. REv. 489, 536 (2003) (equating preemption and prevention). Others equate anticipatory self-de- fense, preemptive self-defense, and prevention. However, there are important distinc- tions between these terms that this Article will elaborate. See infra Part II. 14 Neither the Bush Administration nor the United Kingdom defined the March 2003 intervention against the Hussein regime as a preventive war, but, rather as a Chapter VII enforcement action with legal authority claimed under prior U.N.