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At home and abroad, observers ask: Has George W. Bush “made the case” for toppling Saddam Hussein? The phrase “made the case” is redolent of lawyers and litigation. Those asking the question, of course, think they already know the answer. By asking, they mean to imply President Bush has failed to make the case, and that he ought to be sanctioned if he goes to war without satisfying his evidentiary burden. Well, if foreign policy is to be subjected to legal tests, here’s a better question to ask: If Saddam Hussein managed to inflict a nuclear, chemical or biological attack on our population because the government failed to take pre-emptive action, would George Bush be liable to the people of the United States for negligence? Exploring that question provides a basis for predicting how the president will act. Negligence is the breach of the duty of due care. While it is difficult to measure the contours of that duty, Judge Learned Hand tried. He devised an algebraic formula in United States v. Carroll Towing: B < PL, where “B” is the burden of adequate precautions; “P” is probability of harm; and “L” is the gravity of resulting loss should the harm occur. Under his test, liability for negligence arises when the burden of precautions is less than the probability of harm times the extent of that harm. Now most Americans aren’t lawyers, and very few would think of applying Judge Hand’s formula to foreign policy decisions even if they were lawyers. Yet there is something so common-sensical about the test that we tend to apply it unconsciously. For example, a few months ago, when news surfaced about advance warning signs of the Sept. 11 attacks, some criticized the administration for apparently ignoring those signs and failing to take precautions. But the criticism never gained much of a footing with the public. The so-called warnings were oblique and scattered. Based on the knowledge then available, the probability of harm seemed very low. And the harm most likely to occur was expected to be a regular hijacking; a terrible thing but nothing approaching the scale of Sept. 11. Finally, the burden of precautions — shutting down the nation’s airports — was considered so great that it could not be justified. Even without articulating Learned Hand’s formula, the public unconsciously applied it and declined to hold Bush responsible for the Sept. 11 tragedy. But how would the administration fare if the nation suffered a disastrous nuclear, chemical, or biological assault emanating from Saddam Hussein? That question — instead of the vague query about whether the administration has “made the case” — provides the best guide as to what George W. Bush will do. Applying Judge Hand’s formula, first consider “B”, the burden of toppling Saddam. Nearly everyone expects the United States would succeed in such an effort. But there is wide divergence in estimates of the cost. Pessimists predict that Saddam has learned his lesson from the 1991 Gulf War, when his armed forces were deployed to fight in the open desert. This time they will hole up in Baghdad, inflicting thousands of casualties in block-to-block fighting with the U.S. assault force. They predict the war will take thousands of American lives, and cost as much as $60 billion. There is good reason to doubt these forecasts. In 1991, Saddam’s army collapsed after only 100 hours of ground fighting. His army today is less than a third as large. Its equipment is decaying for lack of spare parts. Its morale is practically nonexistent. In December 2000, Iraqi troops moved into the Northern “no-fly” zone, set aside as a haven for Kurds, and besieged a small town. American warplanes flew low over the invading Iraqi forces, who promptly threw down their weapons and surrendered or fled. Very few Iraqis are willing to die for Saddam. Reportedly, 10 percent of the conscripts desert, even though the penalty for desertion is death. About a fifth of the population is in exile. There have been numerous coup attempts by the military, including one in 1996 by the supposedly super-loyal Republican Guard. Predictions of die-hard Iraqis turning Baghdad into Stalingrad seem strained, in view of the fact that Saddam doesn’t trust his own army enough to let it anywhere near Baghdad. The financial cost may well be great, and this time, unlike 1991, the U.S. will not have Japan and Saudi Arabia to pick up most of the tab. But the cost must be offset by the prospect of restoring Iraqi oil capacity to full production. Very little of that capacity is now in use, and none of that oil goes to the United States. If the United States acts alone to topple Saddam, it alone will reap most of the benefit. A newly installed democratic government in Iraq will be much more likely to sell its oil to the United States than to the many customers who coddled its predecessor. THE PROBABILITY OF HARM Next consider “P”, the probability that Saddam Hussein will acquire weapons of mass destruction, and use them against the United States. It is certain that Saddam already has chemical and biological weapons. He has already used them against his own people, and against the Iranian army. It is certain that he will eventually acquire nuclear weapons if unimpeded. We know that he was close in 1981, when Israel performed a service to humanity by blowing up his reactor at Osirak (for which good deed Israel was publicly condemned and privately congratulated). Before the Gulf War, American intelligence services projected that he was five to 10 years away from reaching his goal. But after the war, we discovered that he was much closer, as close as one year. After Osirak, Saddam scattered his nuclear facilities. UN inspectors found 16 main facilities for building atomic weapons, only two of which had been bombed. They found 34 installations for producing chemical and biological weapons. Inspection of these sites was permitted intermittently until 1998, when Saddam barred them for good. For the past four years, Saddam has diverted between $1 billion to $2 billion annually from the limited sales of Iraqi oil (permitted on “humanitarian” grounds), much or most of it devoted to his efforts to develop deliverable weapons of mass destruction. Gregg Easterbrook, writing for The New Republic last February, noted: “Most of what is known about recent Iraqi weapons production comes from defectors, who describe a continuing, near-fanatical emphasis on acquiring atomic, chemical and biological arms, and fissile materials, miniaturization equipment for atomic warheads, and ballistic rockets that can carry these parcels of hell to neighboring states.” Would Saddam Hussein ever use such weapons against the United States? Critics say no, arguing that he is too sane to commit an act that would draw devastating retaliation upon his head. But a nuclear attack by Saddam might not carry a return address. He would not use rockets to deliver a nuclear device to the United States. More likely, he would use terrorists to smuggle such a device across our borders. Saddam may or may not be involved in supporting Al Qaeda, but there is no question that he has harbored other terrorists, such as Abu Abbas and Abu Nidal, both with records weighted with killing Americans. He pays $25,000 bounties to the families of terrorists who kill Israelis, along with Americans visiting that country. Saddam’s willingness to kill Americans is beyond dispute. He is the only leader in the world to have hired hit men to assassinate an American president (the first President Bush, in 1994). If he was willing to murder a symbol of the nation’s leadership, would he shy away from trying to murder a city full of its citizens, especially if he could do so through terrorists and thus hope to hide his fingerprints and avoid retaliation? If measuring “P”, the probability of harm, is challenging, measuring “L”, the extent of loss, is horrifying. The loss would be so great as to be almost immeasurable, rendering Sept. 11 a minor incident in comparison. In May, The New York Times (a chronic critic of pre-emptive action) published an essay on the possibility of a nuclear explosion in Manhattan. Author Bill Keller asked a staff scientist at the Natural Resources Defense Council to run a computer model of a one-kiloton explosion in Times Square. One kiloton would represent an amateurish device, a fifteenth as powerful as the Hiroshima bomb. According to the model: “The blast and searing heat would gut buildings for a block in every direction, incinerating pedestrians and crushing people at their desks � 20,000 [would be] dead in a matter of seconds. Beyond this, to a distance of more than a quarter mile, anyone directly exposed to the fireball would die a gruesome death from radiation sickness within a day — anyone that is, who survived the third-degree burns. This larger circle would be populated by 250,000 people on a workday. Half a mile from the explosion � unshielded onlookers would expect a slow death from radiation.” Twenty thousand dead in a matter of seconds. A quarter of a million dead in a day. Hundreds of thousands, perhaps millions, dead in agonizing subsequent days. Even if “P” is small, even if “P” is tiny, the unspeakable horror of “L” generates a product of the variables that dwarfs any possible “B”. Litigation and foreign policy make strange bedfellows. But the next time someone complains that President Bush hasn’t “made the case” for toppling Saddam Hussein, the speaker should explain what kind of case he has in mind. If it’s a case of negligence, the case is already there. Any American president who failed to protect the citizenry from the threat posed by the madman in Baghdad would be liable for negligence. Such a president would not have to worry about paying damages. The American people would probably hang him first. The Bush administration military and foreign policy team may never have heard of Learned Hand or his algebraic formula. But it’s a safe bet they’ve already made the same calculation. If they have, Saddam Hussein’s days are numbered. Contributing writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs LLP, specializes in intellectual property law.

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