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U.N. CHARTER OFFERS NO JUSTIFICATION FOR WAR ON IRAQ To the editor: In the Aug. 4 issue of Legal Times,AEI Fellow John Yoo purports to promote a legal argument under which the Iraq war was justified, absent U.S. forces ever finding weapons of mass destruction (WMD) [" Why Iraq's Weapons Don't Matter," Page 58]. Yoo mistakenly cites Article 51 of the U.N. Charter’s right to individual or collective self-defense in the anticipation of an armed attack. Certainly the U.N. Charter permits what is commonly known as preemptive war — a situation where one state, fearing an imminent attack, acts first. Although the critics of the Iraq war have also referred to U.S. and U.K. action pejoratively as a “preemptive” war, such a term represents a gross mischaracterization and misunderstanding of warfare. Rather, our recent “battle in the war on terror” should be characterized as a preventive war — a type of armed conflict illegal under international law. As historian Arthur Schlesinger Jr. wrote in a Los Angeles Timesop-ed last fall, “Rebaptizing preventive war as preemptive war doesn’t change its character. Preventive war is based on the proposition that it is possible to foretell with certainty what is to come.” Yoo states that “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.” Anticipatory self-defense requires an imminent threat. Even a liberal reading of the (now selectively discredited) prewar intelligence could not suggest that Iraq posed such a threat. Finally, Yoo’s appeals to criminal law or to the “safety regulation” also fall flat. The carnage, the devastation, the costs, and the consequences of warfare (no matter how efficiently executed) do not carry the same implications that absolving a police officer of liability for shooting someone with a toy gun does. Again such an act requires the perception of an imminent, as opposed to a long-term or maturing, threat. Justifying the war as safety regulation also creates a dangerous precedent: if the United States and the United Kingdom can determine for themselves what constitutes long-term threats to world security, why can’t other nations? Would India be justified in invading and reclaiming large areas of Pakistan that India truly believes pose a grave threat to its own security? Or more frighteningly, does Yoo mean to suggest that an ethnic majority in one state, irrationally but genuinely fearing the growing power of an ethnic minority, would be justified in making war upon its rival? The tragedies of Rwanda, Bosnia, and Nazi Germany would seem to prove otherwise. Alex Wagner Washington, D.C. TORT REFORM ADVOCATES SOUND LIKE CHICKEN LITTLE To the editor: ” Chasing Doctors Away,” by Joseph Montedonico and Mark H. Allenbaugh [Aug. 4, 2003, Page 60], reminds me of Chicken Little’s prophecy, “The sky is falling.” The lead author is D.C.’s premier malpractice defense lawyer and ostensible mouthpiece for malpractice insurance companies. Mr. Montedonico and his associate say they are rebutting my article, ” Tort Reform or Deform for D.C.?” [May 26, 2003, Page 60], but they give us only the same old rhetoric and no facts. Montedonico, et al.,cite no statistics to rebut the solid statistics I used to show we have an ample supply of physicians in the District of Columbia. The reader is left to accept on faith their conclusion, “They certainly are leaving.” Subsequent to my May 26 article but well before Montedonico and Allenbaugh’s Aug. 4 article, Weiss Ratings, a respected insurance rating company, reported on June 2 that between 1991 and 2002, malpractice insurance premiums increased 48.2 percent in the 19 states that have caps, and the increase was only 35.9 percent in the 31 states that do not have caps. Weiss Ratings recommended: ” Legislatorsshould put proposals involving non-economic damage caps on hold until convincing evidence can be produced to demonstrate a true benefit to doctors in the form of reduced med mal costs. Regulatorsmust review and revise their parameters for approving rate increases. Insurance companiesmust never again allow marketing to divert or pervert prudent actuarial analysis and planning. The medical professionmust assume more responsibility for policing itself, while states must be more pro-active in reviewing the licenses of individual practitioners. And consumersmust not relinquish their right to sue for non-economic damages until the medical profession and/or state and federal governments provide more adequate supervision and regulation of doctors, hospitals, and other health care providers.” (See www.weissratings.com/malpractice.asp.) (Emphasis added.) Yet, Montedonico ignores Weiss Ratings and the preponderance of evidence and persists in the spurious claims that caps will help physicians with their insurance premiums and doctors are being chased away where there are no caps. And just as surely, “The sky is falling.” Jack H. Olender Jack H. Olender & Associates Washington, D.C.

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