Baghdad:
Last Stop for Bush Administration's Preemption Doctrine

By PETER J. SPIRO
Saturday, Apr. 12, 2003

Even amidst the breathtaking spectacle of military victory, one can start to untangle the long-term implications of the American invasion and occupation of Iraq.

Will it have laid the foundation for a muscular Pax Americana, defining the terms of modern-day empire? Some observers project a trajectory of which Iraq is only the beginning. In that view - one evidently entertained by many high-level officials in the Bush Administration - "Operation Iraqi Freedom" represents the initial deployment of a new national security strategy, the model for similar future undertakings.

But this vision will almost surely find itself orphaned by history. Rather than being the first push on the first domino, the invasion of Iraq will likely be remembered as an artifact of the old world, a sort of mopping up exercise on the long heels of the first Persian Gulf war.

That is because the challenge to the United States of Saddam Hussein's Iraq was unlike any other. There is no existing equivalent on the global stage, nor is any equivalent foreseeable. Taken on its own terms, the Bush Administration's preemption doctrine has nowhere else to go.

But the doctrine can't just be taken on its own terms. If there is one important lesson for the future in this episode, it is that even a superpower must take heed of international norms and institutions.

The United States boasted the military capacity and wherewithal to undertake the invasion in the absence of formal international authorization or significant multilateral support. But it has not yet registered the ultimate price it will pay for the invasion; the future will show that this price is steep indeed.

In the Iraq context, it's a price the U.S. could pay. But the ticket is good for this day and train only. Attempts to replicate the Iraq war elsewhere will prove beyond even American resources. International law is the long-term winner here.

Preemption: A Brief Intellectual History

To an extent without contemporary parallel, the invasion of Iraq was the willed result of a sustained, coordinated effort by a group of national security theorists and sometime policymakers. Counting among their elite neoconservative numbers the likes of Paul Wolfowitz, John Bolton, Lewis Libby, Richard Perle, Robert Kagan and William Kristol, and loosely affiliating under the umbrella of the "Project for a New American Century," the group charted a new Republican grand strategy during the exile of the Clinton years.

Under the second Bush Administration, this group has been able to elevate theory to official government policy. Even before September 11, they enjoyed important footholds in the White House (Libby is chief of staff to Dick Cheney, who has played godfather to the group), and at the Departments of Defense (Paul Wolfowitz is Deputy Secretary) and State (where John Bolton is an Undersecretary). Then the September 11 attacks tipped the balance of policy influence decisively in their favor. One year later, the President's National Security Strategy asserted "our right of self-defense by acting preemptively" against terrorists and states harboring them.

In a sense, this was the first shot in the war on Iraq. It also represented something of a coup against the mainstream foreign policy apparatus. As Michael Lind writes in the New Statesman, "as a result of several bizarre and unforeseeable contingencies . . . the foreign policy of the world's only global power is being made by a small clique that is unrepresentative of either the U.S. population or the mainstream foreign policy establishment."

Iraq was always first on the list for putting preemption into action, and the invasion is an ostensible triumph for its advocates. But preemption is not just about Iraq.

As preemption advocates William Kristol and Laurence Kaplan write in their instant book, The War Over Iraq: Saddam's Tyranny and America's Mission, "The mission begins in Baghdad, but it does not end there. . . . We stand at the cusp of a new historical era. . . . This is a decisive moment. . . . It is so clearly about more than Iraq. It is about more even than the future of the Middle East and the war on terror. It is about what sort of role the United States intends to play in the twenty-first century."

On this view, North Korea and Iran - the other members of the "axis of evil" - and Syria, accused of aiding Saddam in this war, stand as apparent targets for future preemptive action.

The Road to Pyongyang, Damascus, Tehran? Not a Chance.

But the tank tracks will almost certainly stop where they are.

First of all, Saddam Hussein had already been well-established with domestic audiences as public enemy number one, long before September 11, 2001. He was a target we knew well, almost entirely as the consequence of his 1990 invasion of Kuwait and the subsequent first Gulf conflict. The country already knew most of the justifications for attacking Saddam before the Administration began to spell them out last fall.

The leaderships ands misdeed of other states on the Administration's hit list, by contrast, are obscure. Only a massive public relations campaign could raise domestic awareness to the point where public opinion would support another conflict.

Meanwhile, having already spent huge sums on the Iraq war, the Administration will find getting further spending approved an increasingly uphill battle. If the economy continues to falter and the costs of Iraq, for peacekeeping and the transition, mount, the American public will hardly be inclined to support additional military adventures anytime soon.

It's important to remember that Iraq was a hard sell despite America's familiarity with Saddam's abuses. Although a majority of Americans have ultimately supported the invasion, the country has been more deeply split on this conflict than any other in the post-Vietnam era.

No More Cakewalks

Nor would military incursions against other countries on the preemption list present the sort of relative cakewalk that we have seen in Iraq.

As a result of the first Gulf War, Iraq's defenses had already been degraded to the point that they posed only a modest threat to the American force. For military purposes, Saddam's regime that had not been completely sovereign for more than a decade. (Recall, for example, the no-fly zone restrictions and the frequent small-scale attacks that the U.S. undertook during the 1990s, as well as the blanket economic sanctions regime imposed on the country).

The other regimes on the list, by contrast, would likely be positioned to do a good deal more damage to an invading force. In the case of North Korea - surely at the top of the list as a potential country for the U.S. to invade, given its nuclear weapons program - that includes the capacity to rain conventional artillery down on Seoul.

And where might preemption apply beyond those now on the list? At bottom, preemption addresses an old-world problem. It is no coincidence that other regimes in preemption's sights are longstanding, in the cases of Syria and North Korea literally second generation, in the case of Iraq dating to 1970's. These regimes are hangovers from another era. Today, there are formidable barriers to the establishment of grossly oppressive regimes. Preemption thus presents yet another example of fighting the last war.

World to Bush: Drop Dead

Even assuming a docile international community, then, preemption has no legs. But the world has hardly stood silently as the US moved to topple to Hussein regime, and surely would oppose a persistently aggressive projection of American military power.

To the contrary, international response to the doctrine and its application in Iraq has been overwhelmingly critical. And, though preemption advocates would be the last to concede its relevance, it is this international opposition that ultimately fells the doctrine. Even if preemption did not fail on other grounds - and it does - it would still fail because its proponents have failed to persuade the world of its validity.

It is unlikely, first of all, that the Iraq invasion will be ratified by the international community after the fact, either formally or informally. As Anne-Marie Slaughter highlighted in a much-discussed contribution to the New York Times, a lack of U.N. Security Council authorization is not necessarily fatal to establishing the legality of military intervention. Most notably, a good case can be made that the Kosovo campaign was consistent with international law. Even though the U.N. Security Council did not pre-approve the action there, various actions on the part of both the U.N. and individual states evidenced eventual international acceptance of that intervention.

But Iraq is not Kosovo. The bombing in Kosovo enjoyed the imprimatur of a major regional security organization - namely, NATO. Opposition leading up to the Kosovo intervention was far less entrenched among both governments and publics than it has been on the Iraq question. Even if U.S. forces were to discover large caches of weapons of mass destruction - something that has yet to happen, even as U.S. forces scour captured Iraqi installations in search of a WMD smoking gun - that wouldn't turn around world opinion.

International condemnation has been framed in international law - not solely policy - terms, through both official and popular channels. The debate among foreign ministries has been on the parameters of anticipated, "preemptive" self-defense, and the scope of various U.N. resolutions on Iraq.

On both counts, the overwhelming majority of states has argued against U.S. and British justifications. In the dynamic of international law, that is pretty much all you need to know. International law is a "horizontal" system of norms. That is, it lacks any superior institution with definitive powers of interpretation; there is no Supreme Court of International Law. In such a system, if the weight of opinion lines up behind a particular position, then that position can be taken (as a general matter) to represent international law.

The debate among the lawyers is also backed up by popular opinion. As Anthony Sebok described in a recent column for this site, for instance, German public opinion has been driven by pervasive sentiment that the invasion violates international law. Many other Europeans feel the same, as do many others around the globe.

Hard Power at Soft Power's Expense: The Hidden Future Cost of the Iraq Invasion

In the end, of course, the U.S. undertook the Iraq invasion without formal multilateral authorization and in the face of this significant international opposition. The outcome demonstrates that the U.S. has the capacity to project force unilaterally. No doubt the U.S. is sole superpower when it comes to the exercise of "hard power" - force of arms.

But as Joseph Nye explains in his recent book, The Paradox of American Power, power today has become a "contest of competitive credibility" as much as one of military strength. "If a country can make its power legitimate in the eyes of others," writes Nye, "it will encounter less resistance to its wishes." The converse is also true: Less perceived legitimacy means less of this "soft" power. And the U.S. is at a low point right now when it comes to perceived legitimacy.

Iraq aside, there many pressing issues on which the U.S. needs the cooperation of other states. There is terrorism, for starters, on top of such other issues as drug trafficking and other criminal activity, health issues, environmental protection, and economic regulation. Insofar as it loses general credibility in the eyes of foreign states and other international actors, the U.S. will find it more difficult to get its way in these areas of multilateral activity.

In this sense, the U.S. is likely to pay a steep price for the Iraq invasion. According to a recent Pew Research Center poll, America's favorable ratings have plummeted over the last year as a result of the Iraq crisis - by more than half in France, German and Italy, and significantly even in Great Britain. On top of the ill-will generated by the invasion in official circles, this response among the general population of even claimed American allies will no doubt have consequences in other areas of vital American interest.

Those consequences won't be lost on George Bush or his successors. If international opposition was overwhelming in the Iraq context, it would be even more so with respect to less clear-cut targets.

Thus, while North Korea, Iran, and perhaps also Syria may be on the Administration's list, chances are that list will be put in a drawer for some time - unless these countries do something to draw international, not just U.S. ire. Otherwise, at the price America would have to pay, unilateralism is beyond even America's reach.


Peter Spiro, a former State Department lawyer and NSC staff member, is a professor at Hofstra Law School.

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