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In the last month, the Bush administration has come under furious political attack for allegedly relying on flawed intelligence to justify the attack on Iraq. The White House has admitted that information suggesting that Iraq had sought to obtain nuclear material from Africa — a fact relied upon by the president in his 2003 State of the Union address — was wrong. With the exception of two mobile weapons labs, coalition forces have yet to reveal the discovery of any Iraqi weapons of mass destruction. Iraq’s refusal to destroy its WMD was the primary casus belli for the invasion of Iraq. Without proof of their existence, critics claim, the legitimacy of the stunning one-month blitzkrieg that removed Saddam Hussein will receive its own mortal wound. Former American intelligence officers have written to President George W. Bush that the failure to find WMD “suggests either that such weapons are simply not there or that those eventually found there will not be in sufficient quantity or capability to support your repeated claim that Iraq posed a grave threat to our country’s security.” And Sen. Robert Byrd has attacked the administration for launching a pre-emptive war based on intelligence that was “bent, stretched or massaged to make Iraq look like an imminent threat.” Congress has launched an investigation into whether the administration exaggerated the threat posed by Iraq’s WMD. REASONABLY NECESSARY DEFENSE While political controversy continues to rage around whether the administration knowingly relied upon incorrect intelligence data, however, it is important not to overlook the legal dimensions of the use of force against Iraq. Suppose, after months of combing Hussein’s hideouts and all the other nooks and crannies throughout Iraq, coalition forces never find a single WMD. Even if none come to light, the war to remove Hussein would still be legitimate. What is important from the perspective of international law is not whether Iraq had WMD in the end. What matters is whether, at the time of the invasion, it appeared reasonably necessary to defend against Iraq’s threat to U.S. national and international security. The right of a nation to use force in its self-defense is one of the most long-standing and basic principles of international law. Article 51 of the United Nations Charter, which declares that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations,” recognizes, but does not limit, this inherent right. Nor must a nation wait until an attack has actually occurred before using force; force can be used in self-defense in anticipation of an armed attack. As Elihu Root (who had served as President Theodore Roosevelt’s secretary of state) stated in 1914, and as the Justice Department quoted in a memo during the Cuban Missile Crisis, every state has “the right . . . to protect itself by preventing a condition of affairs in which it will be too late to protect itself.” To use force in anticipatory self-defense, a state must have available information that reasonably indicates that it will suffer an attack from the enemy. What is important is not what is discovered after the fall of the Hussein regime — we cannot justify self-defense upon facts we only found out afterwards — but what we thought were the facts at the time we used force. Under criminal law, for example, we do not punish a policeman who shoots an attacker when, based on the facts as they reasonably appeared at that time, his life was threatened. Suppose the attacker appeared to carry a weapon, which, after the fact, turns out to have been a toy gun or a fake knife. The law will not hold the police officer criminally liable. So, too, international law, which at times mimics criminal law on self-defense, allows the justification of the Iraq war based on the facts as they reasonably appeared at the time of the invasion. Rather than prove its harmlessness, Iraq instead did everything it could to suggest that it possessed WMD and would be willing to use them. Hence the games played with U.N. arms inspectors and the rumors that Iraq would use chemical weapons if coalition forces neared Baghdad. THE APPARENT THREAT The United States was in the same position as the police officer who shoots an attacker who threatens him with what appears to be an automatic weapon. And the Bush administration was not alone in believing that Iraq had WMD. In 1991, the cease-fire that suspended the first Persian Gulf hostilities required Iraq to destroy its WMD stockpile and production facilities. Of course, everyone, including the Iraqis and even the U.N. Security Council, recognized that Hussein possessed extensive WMD. At least four times in the decade that followed, Iraqi obfuscation and intransigence forced the Security Council to condemn Iraq for breaching its disarmament obligations. In November 2002, the Security Council decided that Iraq “has been and remains in material breach of its obligations” to eliminate its WMD program, and reaffirmed its original 1991 authorization to use force against Iraq. No member of the Security Council either then or at the start of the war, including nations such as France, Germany, Russia, Mexico, and Syria, ever claimed that Hussein had disarmed. Even the subsequent verification efforts demonstrated that Iraq was determined to conceal its WMD program. Hans Blix, the head of the inspection teams, reported in January 2003 that Iraq had not come “to a genuine acceptance, not even today, of the disarmament which was demanded of it.” U.N. members were not the only ones to believe that Iraq possessed WMD. In 1998, Congress found that continued Iraqi possession of WMD threatened vital U.S. interests and international peace. In supporting the use of force against Iraq last fall, Congress (based on the same intelligence available to the president) again found that “Iraq both poses a continuing threat to the national security of the United States and international peace and security” by continuing “to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations.” Before the invasion, both the United Nations and Congress agreed with the administration on WMD. Based on the information as it appeared at the beginning of hostilities, the Bush administration reasonably concluded that Iraq’s WMD remained intact, and that force was the only way to remove this direct threat to U.S. national security and international peace. If it turns out that no WMD are found, then not only the Bush administration, but also Congress and the U.N. Security Council may have been wrong. But that would not render the war illegitimate. A CLEARER VIEW Perhaps the better way to judge the legitimacy of the Iraq war is not as self-defense, but rather as a safety regulation. Iraq, with its marriage of WMD, a hostile and repressive dictator, and support for terrorism, represented a threat to the international system. We might analogize Iraq to a danger to public health and safety, much like a burning house that threatens its neighbors or diseased livestock that will infect others. The United States and its allies acted to remove this destabilizing threat to the international system, effectively promoting a public good that benefits all nations. While in domestic law such actions might require “damages,” America is now paying by supporting the reconstruction and democratization of Iraq with both blood and money. But no one, yet, is calling for the other type of remedy permissible in the law, the restoration of the status quo ante — which would be the reinstallation of Saddam Hussein. That silence speaks volumes about the legitimacy of the Iraq war. John Yoo, who recently left the Bush Justice Department, is a visiting fellow at the American Enterprise Institute, and teaches at the University of California School of Law (Boalt Hall). His article discussing the legality of the war in Iraq will appear in this summer’s issue of the American Journal of International Law.

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