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WASHINGTON — For William Taft IV, it wasn’t an easy sell. Addressing a crowd of 60 international lawyers at an American Bar Association dinner in Washington, D.C., on March 13, the State Department’s top attorney laid out the administration’s legal authority for war with Iraq. The reaction, says one attendee, was less than receptive. “There was a pall over the room,” this lawyer says. “It’s a very discouraging time to be an international lawyer in the U.S.” Indeed, the administration’s legal case for attacking Iraq is causing considerable consternation in the international bar. Under the United Nations Charter, use of force against another country is legal in just two circumstances: in self-defense or by authorization of the Security Council. The Bush administration has cited both as grounds to legitimize the war. Most controversial is the notion the attack on Iraq is justified under the Bush doctrine of pre-emptive self-defense. The concept is incorporated in the September White House document “The National Security Strategy of the United States” and was invoked by President Bush in his pre-war address to the nation on March 17. “We are now acting because the risks of inaction would be far greater. In one year, or five years, the power of Iraq to inflict harm on all free nations would be multiplied many times over,” Bush said. “Responding to such enemies only after they have struck first is not self-defense, it is suicide.” In a little-noticed memo, dated Nov. 18, to the members of the American Society of International Law and the Council on Foreign Relations, Taft offered a more legalistic analysis of what pre-emptive self-defense means. In the 1,300-word memo, Taft, who was not available for an interview, argues that the concept is not new. He cites the 1962 Cuban missile crisis, when President Kennedy declared, “We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to the nation’s security to constitute maximum peril.” The memo also discusses one of the chestnuts of international law — the destruction of the U.S. steamer The Caroline by the British in 1837. The sinking of the ship, Taft notes, came “not in response to prior attack, but because [the British] anticipated its use to support Canadian forces in the rebellion against the crown.” “The president’s National Security Strategy relies upon the same legal framework applied to the British in Caroline,” Taft writes. That is, “the necessity of using force to protect against further harm.” “The inherent right of self-defense embodied in the U.N. Charter must include the right to take pre-emptive action; otherwise the original purpose is frustrated. We cannot wait for a first strike under such circumstances,” he continues. “The United States reserves the right to use force pre-emptively in self-defense when faced with an imminent threat. While the definition of imminent must recognize the threat posed by weapons of mass destruction and the intentions of those who possess them, the decision to undertake any action must meet the test of necessity. . . . In the face of overwhelming evidence of an imminent threat, a nation may take pre-emptive action to defend its nationals from unimaginable harm.” To Columbia Law School professor Jose Alvarez, a specialist in international law, Taft’s arguments are “not a good faith application of the traditional rules of self-defense.” “Is the evidence of imminent threat merely the fact that we have the possibility of the possession of illegal weapons combined with a regime which has sometime ago used them against others?” he asks. “Is the use of force now justified whenever we imagine ‘unimaginable harm’?” He continues, “Under Mr. Taft’s intentionally vague approach, I am afraid a lot of countries are likely to be candidates for U.S. pre-emptive action — and perhaps that is the intent of the administration’s new doctrine. Whether the Bush doctrine is new or merely a novel application of old rules, the consequences for world order are truly troubling.” As Alvarez and others note, pre-emptive self-defense appears to open the door to other countries with long-standing grudges — Pakistan and India, for example, or China and Taiwan — to take action against their neighbors. But Ruth Wedgwood, professor of international law and diplomacy at Johns Hopkins, argues that the situation with Iraq is different, because the cease-fire ending the Gulf War put the country on “unique legal probation.” The administration, she says, does not need to “rely on any general theory of pre-emptive self-defense because Saddam Hussein has already acted in spades.” Other international specialists like Miller & Chevalier’s Lucinda Low believe pre-emption is valid in theory, but that it also requires “a very, very high factual threshold.” In a situation like the Cuban missile crisis, Low says, pre-emptive self-defense was justified because there were specific weapons pointed at the United States. However, she is not convinced that the current situation is analogous. Assuming Iraq’s weapons of mass destruction exist, “It’s still not clear they would be able to use them against us.” Adds Ropes & Gray partner Don DeAmicis, who chairs the ABA Section of International Law and Practice where Taft made his remarks, “What makes this so difficult is it’s not a case where the [enemy] ships are on the horizon. . . . It’s not clear-cut.” Apart from self-defense, the administration also makes a narrower argument supporting invasion of Iraq based on prior U.N. Security Council resolutions. In a March 13 press briefing, White House spokesman Ari Fleischer detailed the administration’s formal legal position on authority from the U.N. to go to war. Fleischer notes that U.N. Resolution 678 authorized use of “all necessary means” to restore international peace and security in the area and provided the basis for use of force against Iraq during the 1991 Gulf War. “Thereafter,” he continued, “United Nations Security Council Resolution 687 declared a cease-fire, but imposed several conditions, including extensive [weapons of mass destruction] related conditions. Those conditions provided the conditions essential to the restoration of peace and security in the area. A material breach of those conditions removes the basis for the cease-fire and provides a legal ground for the use of force.” The administration also cites Resolution 1441, passed by the Security Council in November. In a unanimous vote, the council declared that Iraq was in material breach of its disarmament obligations, but was given one final opportunity to comply or “face serious consequences.” Yet the administration failed to secure a second resolution specifically authorizing the use of force. To American University Washington College of Law professor Robert Goldman, the administration’s attempt to justify war based on the prior U.N. resolutions is “fairly specious” and “not terribly persuasive.” Goldman notes that the original resolution authorizing use of force against Iraq after the invasion of Kuwait was “aimed at totally different factual circumstances and never included regime change in Iraq. It’s very difficult now to relate back [to this resolution] the authority to overthrow the governmental structure of Iraq.” As for the claim that Resolution 1441 green-lights an attack, he says, the negotiating history makes it abundantly clear that the French and Russians would never have signed off on it if they believed that the “serious consequences” meant military action. But Wedgwood of Johns Hopkins supports the administration’s view that the prior resolutions provide ample legitimacy, although she admits she is “probably in the minority, no question,” among international lawyers. In retrospect, Wedgwood says, the administration’s mistake was going after Resolution 1441 at all. It would have been better to “make good on a very old mandate” conferred by cease-fire Resolution 687, she says, arguing it was “never publicly or privately abandoned.” One legacy of the current political conflict may be a seriously — even fatally — weakened Security Council, says Fletcher School international law professor Michael Glennon. The U.N. Charter “is no longer good law,” Glennon says. “It’s a paper rule that’s been violated so many times by so many states that it simply cannot be said any longer to represent the norm to which states consent.” U.S. military action in Vietnam, Grenada and Panama (not to mention the Soviets in Afghanistan, or the British in the Falklands) are some examples of non-U.N.-sanctioned conflict. But to Glennon, the intervention in Kosovo in 1999, which was done on humanitarian grounds and lacked U.N. authorization, was the real start of a slippery slope. “The theory of many in the legal community was that this action was indeed violative of the [U.N.] charter, but nonetheless was morally justified,” he says. Kosovo was like a “controlled burn,” clearing away the U.N. deadwood to make room for humanitarian intervention, he says. Now, “the fire is out of control,” he says, adding, “It’s improbable the Security Council will be resuscitated after the war winds down.” Still, whatever the merits — or lack thereof — in the Bush administration’s legal arguments for war, Catholic University Columbus School of Law professor Antonio Perez finds some solace in that U.S. officials are bothering to make them at all. “The fact that the administration continues to adhere to some semblance of legal connection to Security Council resolutions signals they are not attempting a fundamental break,” he says. And if the war goes well and U.S. soldiers do indeed find caches of weapons of mass destruction, Perez continues, the Security Council might still give a stamp of approval. “There’s no logical certainty France and Russia will maintain their position,” he says. “It all depends on what happens subsequently.” Jenna Greene is a reporter with Legal Times , a Recorder affiliate based in Washington, D.C.

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