Monday, November 15, 2004


Here's an unpublished op-ed piece I thought I should post up. It's dated and a differing view than my own, but it is always good to have various perspectives posted here. It is written by Brett M. Frischmann, who is an Assistant Professor of Law at Loyola University of Chicago. I knew Brett from the volleyball courts at Columbia University and from my close friend, Kevin, who went to Georgetown Law with him.

The "Global Test" and Preemptive War

Something that has been troubling about the presidential and vice presidential debates concerns the "global test" referenced by Kerry. The "global test" language leaves too much left unsaid. Rather than introducing a new buzzword and an unfortunate soundbite, Kerry should have explained the actual legal test in simple, unambiguous, and non-legalistic terms. Since he has not done so, let me try.

Despite the apparent confusion among pundits, campaign advisors, and the candidates, there really is a "global test" for the use of preemptive force. The test is "global" not in the sense that all nations have a say in a particular country's decision whether or not to exercise preemptive force. Rather, the test is "global" in the sense that throughout the world, in nearly all legal systems at both the international and domestic levels as well as within most systems of moral norms, there is an almost universal (or "global") test for the legitimate use of preemptive force, and the test is rather simple:

Preemptive force is justified only when one is faced with an imminent threat.

Self defense and defense of others within criminal law and civil tort law are simple, widely accepted and understood examples. You can use deadly force to defend yourself or another against an imminent threat of serious bodily injury or death; however, you cannot use deadly force against someone when he tells you that he will kill you next week because the threat is not imminent and there are other options

The same is true in international law: A nation faced with an imminent threat, which means there is no way to avoid the attack except to attack first, is justified in using preemptive force. If another nation has the intent but not the present ability to strike another country with armed force, that threat is not imminent and so using armed force first is not justified.

The rationale behind the imminent threat test is simple: Preemptive force should always be a last resort; when a threat is not imminent, there are inevitably other options available. The reason you cannot shoot your neighbor today when he informs you that he will shoot you next week is that society is better off if you seek to employ alternative means to meet the threat, such as seeking the assistance of third-parties (e.g., police or mutual acquaintances) or perhaps talking with your neighbor (e.g., to reconcile or negotiate).

It is clear that both now and at the time that we entered into war, there was no evidence of an imminent threat, and that the options available at the time-multilateral efforts, inspections, and economic sanctions-were working. Thus, the imminent threat test was not met, and the preemptive attack on Iraq was not justified.

Kerry should explain to the American public that he voted to authorize the President to use force with an express understanding that these other alternatives would be used first and that the threat of Unites States force was needed to make these other options feasible. Instead of using the power bestowed upon him by the Congress to provide the necessary leverage for multilateral efforts to succeed in Iraq, Bush
rushed to war.

While it is tempting to say that 9/11 changed everything and made the traditional "imminent threat" test impractical in Iraq, this temptation reflects two important misconceptions. First, the link between Iraq and terrorism is an illusion, as several reports have now documented. Even if preemptively striking (known) terrorists is necessary even short of an imminent threat (or perhaps on the fallacious notion that terrorism constitutes a persistently imminent threat), this line of reasoning would not justify preemptively striking Iraq.

Second, we should be very careful about relaxing the imminent threat standard for the very same reasons we have not done so in the law of torts or criminal law. A very high standard for the use of preemptive force is essential because it provides stability and order, channels rivals into less confrontational and less costly forums for resolving tensions, and serves as a basis for rallying other countries to our aid.

Whether we like it or not, the United States leads by example, and the precedent we are currently setting is truly a dangerous one. Consider a stark example. Under the President's logic, both Iran and North Korea would be justified in preemptively attacking the Unites States, based upon our current military capabilities and various pronouncements by President. At the same time, these countries have leveraged their nuclear capabilities to preempt preemptive strikes by the United States. Despite Bush's claims to the contrary, the world is edging towards chaos and becoming less safe, in part due to 9/11 and the terrorists, and in part due to Bush's unilateral break from international and national tradition.

The "imminent threat" test I have described is probably what Kerry meant by the "global test." If so, Kerry should go to greater trouble to make it clear because the test is more than a mere legalistic formula; it is a concept of moral and political integrity. And it's something the voters (and the rest of the world) want to understand.

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