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Eric Holder and the preemptive use of military force

Eric Holder (AP/Brian Kersey)

Eric Holder (AP/Brian Kersey)

Yesterday, Attorney General Eric Holder delivered an address at Northwestern University School of Law on “Ensuring Security, Justice, and Liberty.” In this address, he outlined numerous aspects of the Administration’s approach to national security issues– including the use of civilian courts, military commissions, and targeted killings. While there are many elements of the address that are worthy of comment, I want to highlight one: the preemptive use of force.

As will be recalled, the Bush Administration issued The National Security Strategy of 2002. In that document, the Administration sought to relax the imminence requirement of the famous Caroline incident of 1837. Caroline embodied what many consider to be the accepted criteria for using force preemptively. It required that in order for a state to use force in advance of an actual attack, two criteria needed to be met: necessity and proportionality. Necessity meant that the state seeking to use force preemptively had to show that an attack was imminent. In the oft-quoted words of Daniel Webster, the state would need to demonstrate “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Proportionality meant that the force had to be proportionate to the threat that was presented.

In 2002, the Bush Administration offer the following claim:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.
We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning. The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction.
The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. (emphasis added)

Again, the Bush Administration was arguing for a clear relaxation of the imminence requirement from Caroline. And it seems that Eric Holder is suggesting the same thing. In his address, he explains:

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.   As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.   Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.   Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed. (emphasis added)

Given the nature of non-state actors and the challenges posed by unconventional means of combat, this relaxation of Caroline makes sense. But does existing international law recognize this change? And if so, what criteria would one use in its place?

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.