AIDP Blog

Professor Guiora’s article addresses some of the key challenges states face when they utilize anticipatory self-defense (ASD). Guiora begins by criticizing the Bush administration’s reliance on ASD as a pretense for launching the 2003 invasion of Iraq. He then cautions that “[u]nlike much of the last seven years, however, pre-emptive attacks must be based upon the objective analysis of viable, valid and corroborated intelligence.” This is sound advice, but establishing an objective standard for such analysis can be difficult. Perhaps the Bush administration would contend that it’s pre-war intelligence was in fact “objective” and “valid,” despite the evidence to the contrary. ["Ex-CIA Official Faults Use of Data on Iraq." Washington Post, February 10, 2006.] Among the many signals the administration sent to the international community with its decision to invade Iraq was that the politicization and misuse of intelligence is merely a tool to be utilized by governments in order to achieve their strategic goals.

Nevertheless, the Bush administration was correct in claiming that we “must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.” [National Security Strategy of the USA,14-16 (2006)]. But again, the quest for uniformity regarding what qualifies as an “imminent threat” necessitating anticipatory force is a futile one. Because the circumstances and capabilities of states vary so drastically, their choice to use anticipatory force must be evaluated on a case by case basis, rendering the current UN Charter far too static to serve as a standard for legality. For example, Israel’s 1967 “first strike” against Egypt was “widely seen to be warranted,” as a “very small, densely populated state cannot be expected to await a very probable, potentially decisive attack before availing itself of the right to self-defense.” [Carter, International Law, p. 996]. Does this mean that a very large state with a more sprawling population is expected to “await a very probable, potentially decisive attack before availing itself of the right to self-defense”? The great disparities in size, power, and geographic locations of governments across the globe creates a situation where the doctrine of ASD can be interpreted as broadly as actors may desire.

Learning from the past abuses of this doctrine, Professor Guiora suggests that “either a select congressional committee or a reconstituted Foreign Intelligence Surveillance Act court should review the intelligence information available to the executive branch before a pre-emptive attack is launched.” While this seems like a great idea on its face, some practical problems are present. For starters, would this not simply be a duplication of current processes? After all, because Congress has the sole power to declare war, its members must already evaluate the president’s claims and intelligence before doing so, making the creation of a new congressional committee to do this appear redundant.

As Professor Guiora writes, the doctrine of anticipatory self-defense has indeed “gotten a bad name from the Bush administration,” and there is no telling how much work remains to be done to grant legitimacy to this necessary creed.

As Professor Guiora and Mr. Barr identify in their article, “Anticipatory Self-Defense Key to Terror Fight,” the validity of anticipatory or pre-emptive self-defense in certain circumstances has evolved into customary international law. U.S. Secretary of State, Daniel Webster’s statement after the destruction of the Caroline evolved into the litmus test for determining the validity of anticipatory self-defense, “necessity of that self-defence [must be] instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” [Daniel Webster & Edward Everett, Works of Daniel Webster, 302, (Little, Brown & Co., 12th ed. 1860) (1851).] Further, Webster noted that any such self-defense must be proportional, using no force that is “unreasonable or excessive.” [Id. at 261]. As such, customary international law has evolved to allow anticipatory self-defense when such action is necessary and proportionate.

Yet, Article 51 of the U.N. Charter seems to undermine the Caroline precedent for the validity of anticipatory self-defense in customary international law. Article 51 opens with the statement, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence,” which could be construed to embrace customary international law if the “inherent right” to self-defense is interpreted to include the Caroline precedent. [U.N. Charter, art. 51.] But Article 51’s text paradoxically continues to narrow the scope of allowable self-defense by requiring that it be preceded by an “armed attack.” [Id.] This language when strictly construed excludes anticipatory self-defense altogether, a stance that directly contradicts customary international law’s allowance for valid pre-emptive self-defense in limited circumstances. While this interpretation may have been workable when the U.N. Charter was established, its narrow interpretation has become obsolete in light of the contemporary advancements in technology and warfare. However, it seems that there is room for a more broad interpretation of Article 51 because, in practice, the U.N. has not adhered to such a strict interpretation all cases. For example, the U.N. did not condemn Israel’s pre-emptive strike against Egypt’s air force in 1967. [Barry E. Carter et al., International Law, 996 (5th ed. 2007).] Nonetheless, the validity of anticipatory self-defense is extremely ambiguous in light of these apparent contradictions between customary international law, the text of the U.N. Charter, and the practice of the U.N. generally.

Considering the ambiguity as to the validity of pre-emptive self-defense, I respectfully disagree with Guiora and Barr’s assertion that the U.S. must be able to “act earlier than what is currently contemplated by international law.” While the U.S. [and other nations] should be allowed to use anticipatory self-defense in certain circumstances, no country should be allowed to do so outside of the scope of the customary international law as construed by the Caroline test. Guiora and Barr propose that the basic questions used by the Israeli Defense Force legal advisers should be evaluated by a select congressional committee or reconstituted Foreign Intelligence Surveillance Act court to determine the proffered intelligence in circumstances in which the government is considering anticipatory action, namely:

“Who is the source of the intelligence? Has the commander directly spoken with the case officer who spoke with the source or has the information been relayed through several people? Does the commander believe the intelligence information? Has the information been corroborated? What are the alternatives to an armed attack? How significant is the risk presented? Can harm to innocent people be minimized? Do we know that the target has prior affiliation with a terrorist group? What weapons are available to the commander?”

While I agree that an additional check outside of the executive branch is necessary to evaluate intelligence to determine whether an anticipatory defense is justified, the questions proposed only addresses the concerns of proportionality and the validity of the intelligence information. The proposed questions do not adequately deal with the requirement in customary international law that the attack be necessary and that the danger be imminent. Questions that get to the heart of the necessity of the attack and immanency of the danger must be included to safeguard the U.S. from acting outside of customary international law.

Obviously, the need for further development both within the international community and U.S. policy is urgent in light of the rise of terrorism and the advancement of nuclear and missile technology. But the dialogue surrounding the validity of anticipatory self-defense must be shaped and informed by customary international law, not developed outside of its confines and as such must include the requirements of necessity and proportionality.

A Comment to “Anticipatory Self-Defense Key to Terror Fight”

Self-defense is recognized as a natural right available to individuals as well as sovereign states; hence, it is described as an “inherent” right in the UN Charter. After the horrors of the Second World War, the international community codified the rules of peaceful settlement of disputes between nations and the use of force in the UN Charter of 1945. Specifically, Article 2(4) states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…” Article 51 provides an exception to this restriction by allowing the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” See Charter of the United Nations. Although the text of the UN Charter does not address anticipatory self-defense, customary international law has for centuries authorized it. After the Caroline case in 1837, the US Secretary of State Daniel Webster recognized a right of anticipatory self-defense but restricted it to situations where it is a “necessity of self-defense…instant, overwhelming, leaving no choice of means and no moment for deliberation.” Barry E. Carter, Phillip R. Trimble, & Allen S. Weiner, International Law, 995 (5th ed., Aspen 2007). In addition to necessity, this customary international law has a requirement of proportionality. Id.

Besides the fact that customary international law allows it, a modern interpretation of the UN Charter lends anticipatory self-defense authority. Although a strict textual reading of the Charter permits the use of force in self-defense only after an armed attack has occurred, modern developments in weaponry, as well as terrorists’ unorthodox methods of attack (i.e. the airplane hijackings of September 11, 2001) make it impractical for a nation to wait for an attack to commence against it before retaliating; by then the attack may have already been completed or may have destroyed that nation’s ability to resist. Daniel C. Barr and Amos N. Guiora correctly assert that anticipatory self-defense must be allowed in this day and age. The U.S. has justified this notion:

Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first …

U.S. National Security Strategy 2002 (revised in 2006). However, the U.S. not only supports the doctrine of anticipatory self-defense but promulgates the right to take preemptive action. The Bush Administration has stated that “[the U.S.] must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends…” U.S. National Security Strategy, September 2002. Barr and Guiora support this notion by stating that “[t]he United States must be able to act earlier than what is currently contemplated by international law.”

What Barr and Guiora fail to address in their essay is that there is a difference between anticipatory and preemptive actions. In fact, they use the two words interchangeably, when in fact they are two different doctrines of self-defense. An anticipatory self-defense doctrine “authorizes armed responses to attacks that are on the brink of being launched, or where an enemy attack has already occurred and the victim learns that more attacks are planned,” in other words, when there is an imminent threat of attack. Niaz A. Shah, Self-Defense, Anticipatory Self-Defense and pre-Emption: International Law’s Response to Terrorism, 12 J. Conflict & Security L. 95, 112 (2007). Preemptive self-defense allows the use of force “to quell any possibility of future attack by another state, even where there is no reason to believe that an attack is planned and where no prior attack has occurred,” in other words, when the threat of an attack is merely conjectural. Id. The problem with preemptive attacks is that not only are they not authorized through the text of the UN Charter, but they are also beyond what customary international law dictates. Based on Webster’s letters, self-defense is authorized if its necessity was instant and with no moment for deliberation, in other words, if the threat was imminent, which is in par with anticipatory self-defense but not with preemptive attacks. Furthermore, can it truly be necessary and proportional to attack a nation before it has the ability to threaten or use force? How can necessity and proportionality be calculated when the threat is not yet in existence? Proponents of the preemptive doctrine will argue that although there is no imminent threat, a grave threat still exists if an enemy is attempting to acquire the ability to use force. Logically, preventing the enemy’s ability to do so should be justified because there is a greater chance of stopping the attack. However, there is also a greater chance of making a mistake, thereby taking the risk of “punishing” a nation for an act (attack) that it never committed and never intended to. Therefore, to be justified, preemptive attacks must be based on certainty that the enemy was going to strike if it had successfully acquired the means to do so.

As Barr and Guiora correctly state, “preemptive attacks must be based upon the objective analysis of viable, valid and corroborated intelligence,” and a procedure or at a minimum a checklist of questions to be asked to evaluate the validity of the intelligence is necessary. Otherwise, nations will be able to strike under a pretext of anticipatory or preemptive self-defense, as the Bush Administration did during the Iraq invasion, among others. Without proper limitations on the preemptive doctrine, international law on the use of self-defense will be permitted to regress to what it was in the 17th and 18th centuries, when European nation-states, though bound by the Peace of Westphalia of 1648, “frequently took pains to advance reasons for declaring war which would give the action some colour of righteousness…” Barry E. Carter, at 972. In essence, if the preemptive doctrine is widely adopted without proper limits and procedures on analyzing intelligence, we risk adopting a doctrine where governments may easily use pretext to engage in warfare.

In their article, “Anticipatory Self-Defense Key to Terror Fight,” Daniel Barr and Amos Guiora argue that anticipatory self-defense is a necessary tool in our country’s fight against the ever-increasing threats we face around the world. The authors advocate for a congressional committee to review, evaluate, and corroborate intelligence before the executive is able to use his discretion in deciding to go to war. (http://www.azcentral.com/arizonarepublic/opinions/articles/2008/11/08/20081108barr08.html). While it is true the Intelligence Community is part of the executive branch, thereby allowing the President the ability to control the dissemination of valuable intelligence to Congress, the issue of faulty intelligence does not cut to the heart of the debate concerning the legitimacy of anticipatory self-defense. (http://feinstein.senate.gov/crs-intel.htm). Even if intelligence reports concerning weapons of mass destruction (WMD) were corroborated before the 2003 Iraq invasion, and coalition forces subsequently discovered such weapons, the invasion would still be illegal according to the Articles 2(4) and 51 of the U.N. Charter. Therefore, to better confront modern threats and continue to act in accordance with International law, it is imperative for the International community to more specifically define what it means for a threat to be “imminent.”
While Article 51 of the U.N. charter requires that an armed attack occur before an individual or collective group of nations can invoke their inherent right of self-defense, the doctrine of anticipatory self-defense can be traced back to a broader view articulated by U.S. Secretary of State Daniel Webster. After the seizure and destruction of the Caroline at the hands of Canadian rebels during the 1837 insurrection, Webster concluded that such anticipatory self-defense should be limited to those cases in which the “necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” (International Law – Cases. Carter, Tremble, Weiner, p. 978; 2007). Today, we interpret this definition as a requirement that a threat be “imminent” before any forceful action is taken. Indeed, in making the case for the Iraq War, President Bush’s National Security Strategy stated, “for centuries, international law recognized that nations need not suffer an attack before they can take action to defend themselves against forces that present an imminent danger of attack.” (http://worldpress.org/specials/iraq/). However, Bush then continued to substantially broaden the common conception of “imminent” by saying the U.S. was prepared to use pre-emptive actions to counter a “sufficient threat to our national security.” (emphasis mine) Id.
The adoption of the U.N. charter following World War II was meant to provide for the settlement of international disputes by peaceful means. However, it is clear that countries increasingly feel the need to resort to anticipatory self-defense in spite of these international standards. While the Iraq invasion arguably stretched the Webster doctrine past its limits, both the 1998 U.S. bombing of a pharmaceutical plant in Sudan and the 1981 Israeli strike against the Iraqi Osirak nuclear reactor demonstrate that anticipatory self-defense is not a novel theory. In light of these events, one may inquire if the U.N. Charter still retains any international relevance. After all, if the text of Article 51 were followed by the letter, it would effect a reduction ad absurdum by requiring a nation to invoke self-defense only after it is attacked. (International Law – Cases. Carter, Tremble, Weiner, p. 987; 2007). In today’s world of WMD, this hardly seems feasible. However, to extend the anticipatory self-defense doctrine to justify pre-emptive attacks in the face of only “sufficient” threats would similarly invalidate all international restrictions of force.
The Iraq War has reaffirmed the importance of international norms. The backlash against the U.S. led invasion and concerns about pre-emption in general show a need for the U.N. to step in and specifically address the necessity of anticipatory self-defense. By establishing more contemporary norms of conduct, states will have notice of when certain action may be offensive to the international community and when it may be appropriate to use force. (http://cdl.org/news/law/preemptive-war.cfm). Currently, Articles 2(4) and 51 unrealistically limit the use of force while Webster’s standard has been interpreted too loosely. Consequently, it is essential that the U.N. construct a definition of “imminent” that conforms to the world’s changing security concerns. Somewhere between Article 51 and the invasion of Iraq there lies an answer.

F8084
Anticipatory Self-Defense

It would be difficult to find a state that would disagree with the belief that anticipatory self-defense procedures should be preceded by accurate, detailed and defined analysis. This is apparent in certain binding articles included in the UN Charter (a treaty in which 192 states belong). Article 39 of the Charter provides that the Security Council is to decide the scope of international threats and/or violations against peace and, Article 51 identifies when responses to such threats are warranted (Charter of the United Nations, Art. 39-51, 1945). Consulting the authoritative, governing body (Security Council) of our international community would be one way to make sure that proper analysis takes place before anticipatory self-defense measures are taken.

Specifically, Barr and Guiora identify some of the anticipatory self-defense “mistakes” (as a result of improper or nonexistent analysis) that the United States have made in the past seven years. They correctly refer to the invasion of Iraq and the Guantanamo incidents as examples of why the United States needs to implement different strategies to eliminate future failures (Paragraph 1). These past failures find root work in ideas like that of Cheney’s one-percent doctrine (see Suskind, The One Percent Doctrine). Barr and Guiora reference Suskind’s text to identify evidence of American impulse and non-analysis in reaction to terrorism or possibilities of terrorist attack. Suskind quotes Cheney as saying “it’s not our analysis…it’s our response” (Suskind, p. 62). So, clearly, the United States (specifically the executive branch) hasn’t been concerned with proper evaluation or investigation.

Barr and Guiora suggest that the United States should formulate a checklist for a congressional committee or something of that nature, to use to evaluate which self-defense procedures would be necessary and to ensure that the proper investigation takes place. Barr and Guiora appropriately comment that in order for the United States to protect itself but at the same time eliminate costly failures, these decisions of anticipatory self-defense shouldn’t be left entirely to the executive (Paragraph 10).

Because “we live in a world where anticipatory self-defense against elusive enemies must remain part of our arsenal against terrorism, (Paragraph 4)” the United States needs to do a better job of eliminating false positives and figuring out when and when NOT to implement anticipatory self-defense measures. Barr and Guiora are right on the mark when they propose the implementation of an additional, thorough checklist as proper analysis before responding anticipatorily and impulsively in self-defense.

In their article, “Anticipatory Self-Defense Key to Terror Fight,” Guiora and Barr conclude that anticipatory self-defense, while necessary to combat terrorism, must be based on “the objective analysis of viable, valid and corroborated intelligence.” To this end, the authors believe that intelligence should be reviewed by a congressional committee or a FISA court prior to anticipatory military action. A checklist of questions that serve to evaluate the intelligence should be asked by either the committee or the court. While the article is an effective summary of the need for anticipatory self-defense based on thorough analysis, a number of issues are not addressed regarding both the legality of anticipatory self-defense and the means by which intelligence is evaluated.

The authors believe that “[t]he threats we face are too enormous not to resort to anticipatory self-defense,” but they do not define what kind of action is legal under international law and do not cite evidence regarding customary international law or the U.N. Charter. Traditionally, the conditions under which military forced could be used by one sovereign state against another, jus ad bellum, included action when an attack “may be anticipated,” according 17th century scholar Hugo Grotius. Louis Rene Beres, Anticipatory Self-Defense, Washington Times (July 24, 2005), Available: http://www.washingtontimes.com/news/2005/jul/24/20050724-101302-5685r/. In the 18th century, Emmerich de Vattel wrote that the use of force is justified against any aggression, present or anticipated, that seeks to inflict injury. Perhaps most importantly, in response to the Caroline incident, U.S. Secretary of State Daniel Webster described the two prongs that were necessary before an anticipatory attack: the immediate necessity of the action (leaving no time for deliberation) and the idea that the action must be proportionate to the threat. Id. Article 51 of the U.N. Charter recognizes the “inherent right of individual or collective self-defense,” which is often interpreted through this understanding of customary international law. So, while it is widely accepted that proportionate anticipatory attacks can be launched when absolutely necessary, pre-emptive attacks, those which violate either prong, or attacks which exceed the deliberation of the Security Council, occurring beyond the interim, are considered illegal. The authors indicate that as long as there is “thoughtful and careful analysis” beforehand, a pre-emptive attack would be acceptable. Bush’s National Security Strategy considered the difficulty of detecting a terrorist attack and the devastating impact of WMD on innocent citizens. Steven C. Welsh, Preemptive War and International Law, Center for Defense Information: International Security Law Project (December 5, 2003), Available: http://www.cdi.org/news/law/preemptive-war.cfm. The doctrine sought to expand the concept of anticipatory self-defense to include actions that had previously been considered pre-emptive. William C. Bradford, The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventive War, 79 NTDLR. 1365, 1424 (2004). Therefore, after reading the article, one could conclude that the authors believe the problem with the Bush Doctrine is one of method rather than scope and as long as the intelligence is sound, pre-emptive measures should be considered legal. This concept of a “reasonable state” standard is contrary to most interpretations of the U.N., and its adoption would arguably constitute a violation of international law. The reasonable state standard is defensible, id. at 1395, but the authors do not address the issue.

Additionally, while supporting the need for superior intelligence evaluation, the authors do not prove that increased checks on intelligence would solve the problem of Cheney’s “1 percent doctrine.” As described in the article, the 1 percent doctrine is the idea that a one-percent chance of WMD build-up or attacks should be treated as a certainty. The authors believe that the 1 percent doctrine leads to ineffective movement, not real action, and anticipatory self-defense should be based on increased intelligence analysis, not the discretion of the executive or the slim chance that an attack might occur. However, even with increased congressional or judicial power, the 1 percent doctrine could still be defended. For instance, what if after thorough intelligence evaluation and congressional debate, there is a small chance of an extremely devastating attack? During the Cold War, mutually assured destruction maintained a balance between the relatively few countries that had nuclear weapons. W. Michael Reisman, Assessing Claims to Revise the Laws of War, 97 A.J.I.L. 82, 85 (January 2003). This balance allowed for a rational prediction of how a given nation might act and why. However, as more countries gained nuclear weapons and the Soviet Union collapsed, the threat of a “rogue nations” and non-state actors obtaining WMD increased. Countries like Iran and North Korea are not as predictable as the global super powers were during the Cold War, and it could be argued that traditional intelligence analysis, even if thorough and subject to evaluation by all branches of government, is less effective when considering the seemingly irrational goals of rogue states and their unpredictable relationships with the United States. Furthermore, the concept of reciprocity does not apply to terrorist organizations that act independently of the nation state structure. Id. at 86. While there may be a small chance of a non-state actor obtaining WMD, there might be an increased or incalculable chance of the actor actually using the weapons. In effect, the 1 percent doctrine accounts for the unpredictability of ideologically-driven states or irrational actors that intelligence analysis would fail to consider.

Even without considering the unpredictability of the modern era, the authors do not convincingly prove that their proposed changes in intelligence analysis would lead to less politicization or more effective anticipatory action. Intelligence is already reviewed by congressional committees. These committees are often politicized, and there is no indication that granting additional power to committees would lead to a more careful analysis, considering Congress authorized the use of force against Iraq. Text of House Resolution Authorizing the Use of U.S. Force Against Iraq, N.Y. Times, A15 (October 3, 2002). Furthermore, if the threat is truly immediate, thorough deliberation by a congressional committee, especially if one considers the current climate of political polarization, could defeat the very purpose of an anticipatory attack. On the contrary, FISA courts have been criticized as “rubbing stamping” action taken by the executive branch. The authors do not describe how they would amend the process in a way that would account for the immediacy of action while satisfying those who believe the courts to be overly deferential.

The checklist of questions presented in the article is subject to similar criticism, as there is no evidence that these questions were not asked prior to the invasion of Iraq. In itself, the worth of the checklist is relative to the worth of the intelligence. Prior to the invasion of Iraq, Congress debated the use of force and asked many of the questions cited by the authors as integral to intelligence evaluation. Excerpts From Senate Debate on Authorization to Use Force Against Iraq, N.Y. Times, A9 (October 5, 2002). For instance, evidence shows that President Bush believed the intelligence gathered on Iraq. Arguably, it was corroborated, and the sources were confirmed. Iraq had ties to terrorists such as Abu Nidal, even if it did not directly control terrorist activity outside the country. Yossi Melman, Iraq’s Ties to Terror: The Threat Isn’t Easy to Read, N.Y. Times, Week in Review (February 9, 2003). In the opinion of the executive branch and much of the Congress, alternatives such as weapons inspectors, U.N. resolutions, and sanctions had failed. In fact, the questions cited by the authors were asked prior to the invasion; the answers were doubted by some and accepted by others based on the politicization that the authors seek to avoid. The significance of the risk is prone to the 1 percent problem, and the potential harm to innocents is often impossible to consider, as terrorist groups employ human shields and similar tactics.

Exam ID: F5488

Comment on Anticipatory Self-Defense Key to Terror Fight by Amos Guiora and Dan Barr.

The principle of anticipatory self-defense is not new; it has been recognized since 1842. During what is now called the Caroline affair, British forces attacked a U.S. steamship carrying insurgents to Canada. The then U.S. Secretary of State, Daniel Webster, diffused the ensuing hostilities between the two countries, admitting the right of a country to protect itself from imminent invasion (see Carter, Trimble, and Weiner, International Law, at 977). While not expressly proscribed by the text of the U.N. Charter, the general consensus of the international community is that anticipatory self-defense can be used against another country when there is: (1) a significant threat, (2) an imminent likelihood that the threat will be realized, (3) the target nation has exhausted all alternative courses of action, and (4) the use of force is consistent with the principles of the U.N. Charter (Sofaer, Abraham, On the necessity of preemption, European Journal of International Law, http://ejil.oxfordjournals.org/cgi/reprint/14/2/209).

Today, most countries are not as concerned with a single steamship of musketeers. The biggest threats to national security come from the capabilities of modern warfare, such as weapons of mass destruction, that can inflict massive damage, possibly even eliminating the ability to launch a retaliatory response. As the magnitude of first strike capabilities increases, the logic behind requiring nations to wait to respond diminishes (see Carter, Trimble, and Weiner, International Law, at 996).

To address these changes, countries such as the United States must be able to adapt the doctrine to protect their national security. However, as Amos Guiora and Dan Barr imply in their article, using such rationale as the “1 percent doctrine,” created by Vice President Dick Cheney, takes the doctrine too far. Legitimacy of a claim for anticipatory self-defense is founded in the likelihood of an imminent and overwhelming attack (see Carter, Trimble, and Weiner, International Law, at 1006). It would be difficult for anyone to argue that a threat that is 1 percent likely to occur is immediate and imminent. Global insecurity and chaos would ensue if all countries were to adopt such an extension to the doctrine.

The determination of whether threats pose a legitimate reason for anticipatory self-defense requires a balancing act. Countries must be able to adequately defend themselves from the threats of modern technology, but cannot be given blanket authority as provided by the 1 percent doctrine. Such a balancing act could be achieved in the United States by using a congressional committee to approve the anticipatory self-defense claims, as proposed by Guiora and Barr. Oversight that uses an objective evaluation may provide at least some restraints on the self-ordained authority of the 1 percent doctrine. It may also give the acts of anticipatory self-defense legitimacy, and garner the support of the international community during the aftermath of such a strike.

While this approach may be effective at legitimizing strikes against nations, it does not address the legal issues associated with employing anticipatory self-defense tactics against individual terrorists in nations we are not at war with, like the article suggests. A strike against a terrorist group in a foreign nation is considered a strike against the foreign nation itself, illegal under Article 2(4) of the U.N. Charter (See Carter, Trimble, and Weiner, International Law, at 1022). Thus, there is tension between the values of national sovereignty and self-defense. The justifications used for strikes against terrorists in foreign countries are: (1) the foreign nation has state responsibility, from instructing the targeted group to commit crimes of terror, or (2) the foreign nation is harboring terrorists that have committed such acts (See Carter, Trimble, and Weiner, International Law, at 1022). Both justifications rely on terrorists having already committed acts of terror, making these strikes retaliation, not anticipatory self-defense. While important to other elements of national security, the anticipatory self-defense doctrine should not be used to circumvent the national sovereignty of foreign countries in the fight against non-governmental terrorist organizations.

While the authors support the utilization of self-defense by nations against potential terror threats, a problem remains in defining such threats. Organizations considered by the United States and other western cultures to be terrorist groups have often been viewed as freedom fighters by other nations, which has prohibited international bodies such as the United Nations from forming a comprehensive doctrine regarding terrorism. In fact, the UN has had difficulty in forming a definition of the word. The body made some progress in requesting States to prevent and, if necessary, punish “criminal acts, including [acts] against civilians, committed with the intent to cause serious death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act , which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism…”[ S.C. Res. 1566 ¶3, U.N. Doc. S/RES/1566 (Oct. 8, 2004)]. Given the international community’s inability to form a comprehensive convention regarding terrorism, it would seem to detract from any such doctrine’s legitimacy that would be employed unilaterally by the United States. However, the questions posed by the authors, meant to be used as analytical tools in determining the necessity of action against any purported threat, take steps in avoiding discussions of what constitutes “terrorism.” A similar list of questions, predicated on ensuring intelligence information is properly evaluated, has been proposed by others [Amose N. Guiora, Anticipatory Self-Defense and International Law – A Re-evaluation, 13 JCSECL 3, 22 (2008)]. These questions focus on the threat against the United States, which could prove useful in evaluating the necessity of self-defense.

Certainly anticipatory self-defense has been recognized at different times throughout history as legitimate. Many of these instances, however, involve actions against States, and not unrelated organizations within States. In 1967, Israel’s “first strike” against Egypt’s air force was viewed as warranted, given that Egypt had made evident its hostile intention and Israel was demonstrably vulnerable. The UN chose not to condemn Israel, but rather insist that Israel relinquish seized territory, effectively balancing Egypt’s illegitimate provocation with a balanced peace [Barry E. Carter et al., International Law, 996 (5th ed. 2007)]. It becomes more difficult to balance the interests of a threatened State, however, with the interests of another State whose sovereignty will be invaded because of several individuals that happen to be within the State’s borders.

The authors rightfully move away from former Vice President Cheney’s support of the so-called “Once Percent Doctrine.” As described by Professor of mathematics John Allen Paulos in 2006, such a doctrine essentially requires action based not on evidence, but on suspicion of threats against a State [http://abcnews.go.com/Technology/story?id=2120605]. Under these circumstances, the United Nations would no longer be able to balance the interests of both States (one’s safety versus the other’s sovereignty), but would allow for any State to preemptively strike another State, with potentially little reason for doing so. While the reduction ad absurdum argues that the law certainly did not intend to prohibit State action until they were attacked [Barry E. Carter et al., International Law, 996 (5th ed. 2007)], it is equally unlikely that the law would allow States such latitude when using force against another. The authors’ suggestion of an independent body, whose job is to ask detailed questions when given information of a threat, seems to strike the best balance between all interests that must be met within the shadow of the UN Charter.

Anticipatory self-defense is the idea that a country has a right to use the means necessary to prevent a threat to itself. See, Thomas M. Franck, Recourse to Force page 3. The acceptable use of anticipatory self-defense in the eyes of the world, and in the eyes of the United Nations lies somewhere between waiting for an actual attack to occur and using force whenever a country feels threatened. See, Thomas M. Franck, Recourse to Force, page 108.

The author’s call for the executive branch’s ability to engage in anticipatory self-defense be subject to authorization from an external source, such as a congressional sub-committee or a Foreign Intelligence Surveillance Act court, is a good idea. http://www.azcentral.com/arizonarepublic/opinions/articles/2008/11/08/20081108barr08.html. The need for this country to respond quickly to threats is a vital one, but at the same time, there is a need to make sure an attack is justified, whether the intelligence is accurate, and whether it is falls within acceptable international standards.

Placing the decision making power of launching an attack in the hands of a single entity can be problematic. A single executive may be more easily swayed by faulty or insufficient intelligence than a congressional committee or a court. An example of this can be seen in the United States’ invasion of Iraq in 2003. President Bush ordered the invasion of Iraq and justified it by claiming it as anticipatory self-defense in response to intelligence that claimed that Iraq was in possession of chemical and biological weapons. The world condemned the attack, and saw it as a violation of acceptable uses of anticipatory self-defense. The intelligence turned out to be false, and the United States did not find any chemical or biological weapons. In fact, the source of the intelligence claiming there was chemical and biological weapons in Iraq was a single scientist. http://www.cnn.com/2008/WORLD/meast/10/10/iraq.curveball/index.html. If the intelligence presented to the executive branch had been subject to review by a committee or a court, perhaps a more informed decision could have been made.

An external source of authorization can offer the benefit of having a more objective analysis of available intelligence. With a more objective viewpoint, a better determination can be made about whether an attack is really the best solution to a possible threat. This will help to make the United States’ future uses of anticipatory self-defense more in line with the United Nations’ standards, and help the United States avoid another condemned use of force.

In their article, “Anticipatory self-defense key to terror fight”, Mr. Daniel Barr and Professor Amos Guiora correctly identify the ever-pressing need for an effective, flexible, and efficient national security strategy that includes anticipatory self-defense as an available tactic. Citing the missteps of the Bush administration in their use of the anticipatory self-defense alternative, Barr and Guiora call for the development of a comprehensive checklist to aid in the in the responsible implementation of this essential weapon against terrorism.
Barr and Guiora highlight the failures of the past in order to illuminate a path for the revision of this essential homeland security tool. The policy of the Bush administration that, “the greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack” (President George W. Bush, The National Security Strategy of the United States of America, (Sept. 17, 2002), available at http:slomanson.tjsl.edu/NSS.pdf) is no longer a sustainable approach. Although one hundred percent certainty as to the credibility of a threat is ideal, Barr and Guiora identify that this is not always realistic and instead “pre-emptive attacks must be based upon the objective analysis of viable, valid, and corroborated intelligence”. Such an approach is an important step in moving away from Vice President Cheney’s “1 percent doctrine” and shifting toward the classic doctrine that anticipatory self defense is only an option when there is a “necessity of self defense…instant, overwhelming, leaving no choice of means and no moment for deliberation” (Carter, Barry E. International Law. 995. Fifth ed. New York: Aspen, 2007). However, although anticipatory self-defense is a well-established facet of customary international law, this form of recourse must adapt as the international climate continues to change.
The previous policy of “shoot first, ask questions later” can no longer direct the national security strategy of the United States. However, the comprehensive checklist advocated by Barr and Guiora will also prove not be an infallible guide. The events of the past exemplify that “the problem with recourse to anticipatory self-defense is its ambiguity” (Carter, 996). The United States will certainly continue to face situations where anticipatory self-defense must remain an option for it to fulfill its duty to protect its citizens, both at home and abroad. Armed with the power of this type of checklist, the United States will be able to assess the necessary and proper recourse for the situation in a much more effective and efficient process. Although mistakes will be made and intelligence misjudged, the policy advocated by Barr and Guiora will aid in developing a national security strategy that is both sensitive to the ever-changing international landscape and capable of forcefully protecting the security of the United States.

Broadening the right of anticipatory self-defense raises several important issues. First, whether the requirement of proportionality should be increased as a threat’s imminence decreases. Second, whether the international community will be receptive to more flexible standards. And third, if the international community should accept the new standards how flexible they should be in its application.

First, if the international community loosens the imminence requirement for the right of anticipatory self-defense the proportionality standards should be increased. Proportionality has long played an important role in customary international law’s view on anticipatory self-defense, dating back to the Canadian attack on the Caroline in 1837. See Destruction of the “Caroline”, 2 Moore, A Digest of International Law 409-414. While The United Nations has not codified anticipatory self-defense, recent history supports the premise that customary international law would necessitate an increased standard for proportionality if the imminence standard was loosened. During the Cuban missile crisis the United States relied on strong evidence in violating international law by blockading Soviet ships transporting nuclear weapons to Cuba. The international community tolerated the United States’ actions even though the threat was not imminent because it was least likely to disrupt international peace, a prime objective of the United Nations. U.N. Charter Article 2(3). Had the United States engaged the Soviet ships in attack, one would suspect the international community would have reacted negatively, as it did in 1981 when Israel bombed an Iraqi nuclear plant near Baghdad. This threat was analogous to the threat of the Cuban Missile crisis; it was not imminent, estimates were that the plant was six months from completion, and was corroborated by reliable intelligence. However, Israel’s bombing of Iraq was not proportional given the imminence of the threat. Thus, allowing more time to act in anticipatory self-defense should reflect customary international law; as imminence decreases the responsibility to find and use options that are the least likely to disrupt international peace in neutralizing threats should increase. An act of anticipatory self-defense should not only be proportionate to magnitude of the threatened harm but also to its imminence.

Second, even if the international community were to approve a flexible use of anticipatory self-defense several complications might arise in applying it to non-state actors. Primarily, Article 2(4) of the U.N. Charter specifies that no members shall “use force against the territorial integrity or political independence of any state.” Attacking a terrorist group without the host country’s permission would violate that state’s territorial integrity. Therefore, if the threat of imminence standard is lowered a country should be able and required to take further steps to gain the cooperation of the host country before acting in anticipatory self-defense. Additionally, while international customary law has recognized anticipatory self-defense against non-state actors, exemplified in the Canadian attack on the Caroline mentioned above, recent history suggests a hardening of opinion. On September 28, 2001 the Council invoked Chapter VII to impose sanctions, not force, on terrorist groups through Resolution 1373. International Law, Carter, Trimble, and Weiner. Page 1020. In another example in 2003, Israel responded to a suicide bomb attack by striking an alleged terrorist training camp at Ein Saheb, Syria. During the Security Council discussion thereafter, ten of the fifteen Council members condemned or described Israel’s action as a violation of international law. International Law, Carter, Trimble, and Weiner. Page 1024. Finally, in DRC v. Uganda Judge Simma of The International Court of Justice, “[rejected] an expansion of the doctrine of self-defense to include a right to anticipatory self-defense against the threat of an armed attack by non-State actors.” “The Tangled Web”: The Right of Self-Defense Against Non-State Actors in the Armed Activities Case, page 81 (http://www.iilj.org/courses/documents/JILP40SI.Barbour_Salzman.pdf).

Third, the international community will likely move to enumerate the types of threats which will condone an act of anticipatory self-defense against non-state actors. A definition for terrorist has not been offered by the United Nations in large part due to differences in opinion of what certain resistance groups should be considered. In 2002, for example, The United States publicly warned Russia against striking Chechen groups in Georgia. However, in that year the U.S. launched six cruise missiles in Yemen at Al Qaeda targets. To avoid this problem, the international community should enumerate the types of threats that would justify an act of anticipatory self-defense against non-state actors similar to the U.N. Security Council Resolution 1566. [S.C. Res. 1566]. This should also include an attempt to identify the magnitude a threat must meet in order to justify anticipatory self-defense. The International Court of Justice in the 1986 Nicaragua case held self-defense is warranted against terrorist armed attacks that rise above a “mere frontier incident had it been carried out by regular armed forces.” International Law, Carter, Trimble, and Weiner. Page 1021. While the September 11 attacks are considered to meet this level of threat, it is unclear whether the majority of terrorist attacks, such as assassination attempts, hijacking of airplanes, or bombings, would satisfy the ICJ. Id. Exemplifying types of attacks that would fall under anticipatory self-defense would help convey international norms and decrease the chance a country will exceed its authority.

While I agree with the stance that Professor Guiora has taken to combat terrorism worldwide and believe that strict scrutiny of all intelligence should be required, I find it hard to agree wholeheartedly when the word “terrorist” has yet to be defined.

The U.N. has no internationally agreed-upon definition of terrorism. The Organization of the Islamic Conference recently successfully blocked the Comprehensive Convention on International Terrorism because of the lack of definition. The OIC demand demanded a distinction between terrorism and self-determination, or as they stated, “the importance not to affect the exercise of the right of peoples to self-determination.” See Mahmoud Hmoud, Negotiating the Draft Comprehensive Convention on International Terrorism: Major Bones of Contention, Journal of International Criminal Justice, 2006 at 3. The U.N. Charter refers to “self-determination of peoples” in articles 1, ¶2, 55, 73, and 76, ¶b. However, this principle also lacks concrete definition.

A good example of the fine line between self-determination and terrorism might be the Palestine Liberation Organization. The PLO holds a permanent observer seat at the U.N. and is recognized by the Arab League and the U.N. to be the legitimate representative of the Palestine people. See the Permanent Observer Mission of Palestine to the United Nations, http://www.un.int/palestine/index.shtml. The PLO claims that they are freedom fighters and have never used direct violence against Israel. Id. Indeed, the PLO is the only organization to recognize the sovereignty of Israel and ask for an end to violence. See PLO Demands End to Armed Attacks, BBC News, 16 January, 2005. However, the British National Criminal Intelligence Service named the PLO “the richest of all terrorist organizations” in 1993. See Rachel Ehrenfeld, And a Thief, Too: Yasser Arafat takes what he likes, National Review, July 29, 2002. Using the wide, vague definition of terrorism, even if the PLO has never directly used violence against Israel, Israel may still consider the PLO a terrorist organization for lending its support to organizations that do believe in violence against Israel. Israel may reserve the right to a pre-emptive strike because they used “strict scrutiny” when analyzing any intelligence. Rather than promote discussion between Israel and the PLO, the same standard may become a shield to promote eradication of the “enemy.”

Although in the 2005-06 session, the UN Human Rights Committee said that detention of suspected terrorists should never be contrary to the 1966 International Covenant of Civil and Political Rights, their definition relates only to detention of such persons. See Jorri Duursma, Definition of Terrorism and Self-Determination, Harvard International Review, December 20, 2008 at 2. My concern is that the same “strict scrutiny” may be interpreted widely and allow some countries to justify the violence of a “pre-emptive strike” against those engaged in wars of self-determination, or freedom fighters, and further yet, give them a solid defense against such a violence. Until an internationally community can agree upon a definition of terrorism, the good intentions of Professor Guiora’s model may have devastating consequences.