The Neoconservative Bush Doctrine - A Question of Legitimacy

8/10/2019 The Neoconservative Bush Doctrine - A Question of Legitimacy

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THE NEOCONSERVATIVE BUSH DOCTRINEA QUESTION OF LEGITIMACY

Keith M. Smilie

Illinois State University

December, 2012

Abstract

[For decades United States foreign policy was guided by the realist school within the discipline of

International Relations Theory. Privileging the principle concepts of containment and deterrence, realist

doctrine formed the context of American conduct within the international community. The election of

George W. Bush and the terrorist attacks on the United States on September 11, 2001, represent

transformative directional change in U.S. foreign policy and security strategy. The National Security

Strategy directive issued by President George Bush in 2002 became one of the most controversial

documents of its era. What was to become known as the Bush Doctrine, challenged not only the precepts

of realist thought and practice, but served as the Bush administrations manifesto for philosophical and

political thought. Seeking to legitimize pre-emptive military intervention in Iraq, the pursuit of aggressive

strategies to combat the emerging threat of global terrorism, extending the notion of United States

democratic and moral imperatives and the pursuit of a unilateral international agenda, the Bush Doctrine

became a lightning rod for international debate and protest. In the aftermath of the invasion and occupationof Iran and Afghanistan and the benefit of both time and an abundance of insightful scholarship, this paper

will provide an examination of the neo-conservative driven Bush Doctrine and an evaluation of its

legitimacy as an instrument of United States foreign policy in the context of the greater international

community.]


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Introduction- Paradigm Shift in United States Foreign Policy

Reasoning that the emergent and compelling threat to national security in the post-cold war era

was the growth of global terrorism, the Bush Administration broached the subject of preemption in

suggesting that it was contemplating a military attack on Iraq to defend the United States from further

threats. President of the United States George W. Bush declared in a June 1, 2002 speech at West Point,

that given the nature and type of threat posed by Iraq, the United States had a legal right of self-

defense, as outlined in Article 51 of the United Nations Charter. President Bush further elaborated, we

must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge1.

As the United States had not been attacked by Iraq, the rationale embedded in his speech at West

Point created a deafening debate and controversy regarding the legitimate use of force as a pre-emptive

measure as outlined in international law and the applicable articles of the United Nations Charter. While

certainly not the first President to reserve the right to attack a nation pre-emptively, the threat to nationalsecurity by a nation that had not attacked the United States was viewed as circumspect2.

Nonetheless, despite the growing concern regarding the legality and legitimacy of the measures

articulated by President Bush in the June, 2002 speech at West Point, in September of the same year, in

what would become known as the Bush Doctrine, The National Security Strategy for the United States

(NSS)3was introduced. Serving as the primary rationale guiding the nations counterterrorism policy, it

authorized the Department of Defense to initiate planning for pre-emptive military intervention as a

security measure in the Global War on Terror (GWT).

The NSS represented a series of foreign policy initiatives which changed the trajectory of the

United States security strategy reflecting a rationale which rested on military pre-emption as an outcome

of unilateral actions designed to extend democracy, liberty and security to all regions 4. The policy

represented a sharp departure from postCold War strategy featuring policies aimed at deterrence and

containment.

Seeking to legitimize pre-emptive military interventions as an acceptable conduct of state security

and as a fully compliant action under the terms of the United Nations Charter, the NSS maintained that

the international landscape was drastically altered following the attacks on the United States on

September 11, 2001. As a result, the document elaborated that the United States faced new threats with

1George W. Bush, Speech at West Point, New York, June 1, 2002 (Washington D.C.: The White House, June 2002)

2Dating to the War of 1812 in which President Madison launched a pre-emptive strike in Spanish Florida extending to PresidentClinton, Presidents have utilized pre-emption as an extension of foreign policy.3George W. Bush, The National Security Strategy of the United States of America,(Washington D.C.: The White House,

September 2002)4IBID


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the proliferation of weapons of mass destruction and terrorist networks, armed with the agendas of

fanatics and the threats now posed are so dangerous that we should not hesitate to act alone, if necessary,

to exercise our right of self-defense by acting pre-emptively5.

Widely viewed as a violation of both the normative concepts governing the use of force as well as

the sanctity of state sovereignty, the international community criticized the NSS as a blatant and obvious

ploy to legitimize the invasion of Iraq. As a result, the Bush Doctrine and its rationales became a lightning

rod for intense debate.

It should be pointed out here that pre-emptive strikes are not new to international politics. A

number of nations resorted to this approach during both the 19thand 20

thcenturies

6. The departure point

for the NSS, is that it reserves the right to initiate military strikes against another sovereign state despite

the absence of a verifiable imminent threat. Furthermore, the NSS seeks to legitimize the notion of first-

strike as a core assumption of the doctrinal approach to security strategy. It likewise envisions a

transcendent right of the United States to engage preventively in a military intervention. This

represented a substantive shift from the post- Cold War normative principles guiding international

conduct.

Despite what appears to be a near consensus of scholarly and international opinion that the Bush

Doctrine over-reaches and stands in violation of acceptable international norms, I will ultimately argue

that the Bush Doctrine as outlines within the 2002 NSS Directive provides a rational response the

growing global terrorism threat. I will further argue that neither the United Nations Charter nor the

normative concepts of Just War traditions are violated under the measures of the NSS Directive.

I will further posit that the rationales of both the United Nations and Just War traditions are

wholly inadequate to deal with the challenges posed by the ever-increasing and deepening threat of

international terrorism, and therefore, through the notions of constructivist IR theory requires that these

institutions be re-constituted to reflect the realistic nature of the threat typology currently challenging

global security.

To more clearly frame the parameters of this paper, I will first address both the neoconservative

rationales as well as the specific logic driving the NSS Directive. Secondly, I will review the international

norms and legal structures as they interact with the challenges posed by the Bush Doctrine. Next, given

that neoconservative thinkers (through the voice of the Bush Doctrine) seek to replace the formerly

5IBID

6Raghavan, V.R., Beyond Deterrence to Pre-emption, Contemporary Review, 86-91


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incumbent neorealist paradigms (which formed the basis of United States foreign policy for well over a

decade), I will discuss the points of contention between these two schools theoretical approaches within

the discipline of International Relations. Finally, I will discuss the rationales informing my support of the

NSS Directive, as well as my assertion that the emergence of global terrorism is a game changer and

therefore the emergent threats posed by terrorism requires changes to the normative principles guiding the

response mechanisms and the interpretation of imminent threat.

The Emergence of the Neo-conservative Blueprint

The terrorist attack on the United States on September 11, 2001 and its aftermath represented a

transformative moment not only for United States foreign policy but for the neo-conservative nature of

the Bush Administration as well. The terrorist strike served to simply confirm the base notions held by

neo-conservatives within the Administration. Seeing a stark contrast between the virtuous democratic

ideals as held by the United States and the axis of evil represented by global terrorism and autocratic

dictatorships, the events of 9/11 served to further support the neo-conservative notion of a vast and

growing danger which signaled an imperative urgency to intervene by force if necessary, in an effort to

crush enemy forces arrayed in a hostile movement targeting the United States for attack.

Becoming the intellectual blueprint of the Bush Administration following the 9/11 attacks, neo-

conservatism became the policy of the United States Government. Downplaying diplomacy as simply a

route to appeasement, the Bush Administration embarked on an aggressive foreign policy. Seeing the

supremacy of military strength as a powerful tool, the neo-conservatives began to shape US foreign policy

in a manner that envisioned an opening to convert evil regimes into democracies through the use of

military and political strength. This reasoning further extended into the fashioning of the post 9/11 United

States response. Maintaining that the militant Arabs and Muslims are capable of reasoning only through

an understanding of superior force, the Bush Administration neo-conservatives set out to introduce

fundamental and sweeping changes to United States foreign policy and security strategy.

Of little consequence were the realist theorists both within the Presidents own party and

administration. Seemingly drowned out by the post 9/11 urgency to construct a more aggressive policy to

deter the threat of terrorism, these voices nonetheless urged the neoconservatives to consider diplomacy

over military force and a multilateral approach to containment as opposed to the growing inertia within

the administration to pursue a unilateral path. Rejecting realist notions ascribing to balancing rationales

creating international order, neoconservatives resurrected the Vietnam era theory of bandwagoning and its

underpinning logic represented by the domino theory. Neoconservatives within the Bush administration

believed that a domino effect would follow with an invasion of Iraq and the removal of Saddam


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Hussein. Backed by a neo-conservative faith in the might of the United States military, it was reasoned

that the removal of Saddam Hussein would send a signal to the middle- east that the military superiority

of the United States should encourage other states to fall in line.

The neo-conservatives further reasoned that the strategy of pre-emption would further their

Wilsonian cause to spread democracy as a tool to deter further terrorist activit ies and transform the

Islamic world and middle-east region into democracies that looked more like the United States, as

opposed to those states heavily influenced by Islam and the terrorist jihadist causes.

Fundamental to this neoconservative belief was the notion that in using and extending its global

power and reach, the United States would not only assist but instigate the necessary regime changes to aid

in the continuing development of the democratic model. The foundation of this thinking has its roots in

the democratic peace thesis originally advanced by Immanuel Kant in writing democratic nations have a

quality that makes them more inclined to pursue peace with other nations, rather than engage in warfare7.

Although later scholars including John Mearsheimer have presented empirical evidence that Kants model

does not necessarily apply to acts of aggression with other non-democratic states8, the original notion

holds when viewing interaction with other democratic regimes.

The principal notion of Kants theory proposes that continual submission to elections raises the

stakes for those leaders who would have a predisposition for aggressive agendas knowing that their

actions will be reviewed by an electorate. The democratic peace thesis has received considerable support

among more contemporary scholars. Notably, Robert Kagan suggests that the democratic essence of the

United States makes it difficult if not impossible for Americans to ignore the concerns of its fellow liberal

democracies9. Fukuyama further argues that democratization does help to create a more peaceful and

stable state of affairs and there has been great benefit to American security interests 10

While realists criticize the theory through their suggestions that the United States should more

clearly focus on its own interests, Robert Nye argues that the furtherance of democratic goals not only

includes the creation of additional democracies as well as opens up new markets for prospective trade and

7Kant, Immanuel,Perpetual Peace: A Philosophical Sketch, 1795

8Mearsheimer, John, Structural Realism, Kurki and Smith, 2007, p72.

9Kagan, Robert, America and the Use of Force: Sources of Legitimacy, Bridging the Foreign Policy Divide,Chollet,

Lindberg & Shorr, 2008 p. 10.10Fukuyama, Francis, Reflections on the End of History Five Years Later,History and Theology,Vol. 34, No. 2, May 1995.


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economic benefit.Nye further suggests that ultimately the best strategy to ensure our security and to

build a durable peace is to support the advance of democracy elsewhere11.

Neoconservatives believed that through the Bush Doctrine and the NSS that a commitment to the

spread of democracy was not only for the benefit of security, but also as a function of fighting evil and

justice around the world. Anchored in this notion is the neoconservative belief that the United States is a

fundamentally Christian nation possessing a moralistic core and as such requires of its government to act

on this moral imperative. This thinking was operationalized by Charles Krauthammer when he wrote

unlike other nations in the world, the US behaves disinterestedly on the world stage, having the will to

act as a custodian of the international system, rather than having ambitions for imperialism. The United

States, however, has the opportunity in the post-Cold War era to act as a benevolent hegemon infusing

its foreign policy with a needed moral center and moral imperative while it assists in the plight of those

countries not blessed with a democratic system of government12.

In general, the neoconservative notions of foreign affairs stood in direct juxtaposition of the

realist paradigms it sought to replace through thinkers in the Bush Administration and the advancement of

the Bush Doctrine. For our purposes here, Francis Fukuyama nicely summarizes the neoconservative

foreign policy agenda by unpacking it into four notions. First, distrust of social engineering but a belief

that societal structures shape the actions of states and citizens. Second, the belief that the spread of

democracy will create international peace and be universally beneficial. Third, the opinion that the United

States is a moral nation that has the duty to act as a benevolent hegemon, and lastly, a distrust of

international institutions and skepticism of their effectiveness, leading to the belief that international

organizations can be disregarded, leaving the United States to act unilaterally 13.

The 2002 National Security Strategy of the United StatesThe Bush Doctrine

The foundation of the Bush Doctrine took root under the presidency of George H. W. Bush.

Following the Iraqi invasion of Kuwait, Department of Defense officials Paul Wolfowitz and Lewis

Libby were directed to research and write a proposal for a new military and security strategy. The final

draft of the memorandum concluded that the realist policies of containment and deterrence had become

ineffectual given the new threats of rogue nations and the ever-growing concern of global terrorism.

The three basic points that formed the central rationale for their strategy concluded that the United States

must remain unchallenged as the worlds only superpower, events may require a shift in policy to the use

11Nye, Joseph, The Paradox of American Power: Why the Worlds Only Superpower Cant Go it Alone, Oxford University Press,Oxford, 2002, p 138.12Krauthammer, Charles, The Unipolar Moment,Foreign Affairs, Winter, 1990-91

13Fukuyama, Francis,After the Neocons: America at the Crossroads, Profile Books, London, 2006, p16.


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of first strike military force as a method of self-defense, and, if necessary, the Department of Defense

should be prepared to act unilaterally to confront the threat to security.As the proposal ignited

controversy, President Bush directed that the language referring to pre-emption and unilateral action be

removed. As a result, the doctrine faded into the background and the general US policy of containment

and deterrence continued throughout the remaining Bush term and the Clinton presidency14.

Following the election of George W. Bush and Vice President Dick Cheney, both Wolfowitz and

Libby became influential advisors during the first term of the Bush presidency. Forming a core of neo-

conservative advisors surrounding the President, these neo-conservatives set out on a course to radically

alter the face of U.S. foreign and military policy. Their strategy included resurrecting the tenets of the

security memorandum originally written by Libby and Wolfowitz, with engaged support for this strategy

from Vice President Cheney himself. In addition to the resurrected policy of unilateral pre-emption, this

group of neo-conservative thinkers pushed the notion of first strike capability even further to conclude

that the United States should aggressively confront hostile and militant Islamic regimes and an expansion

of democracy and capitalism throughout the world15.

In the aftermath of the terrorist attacks on the United States in September of 2001, the

neoconservative group within the White House, pushed for an immediate and decisive attack on Iraq.

Secretary of State Colin Powell prevailed as he urged an attack on Afghanistan in response to the

Talibans harboring of Al Qaeda terrorists16.

In his January 2002 State of the Union Address, President Bush began to lay the foundation for

the changing national security strategy in referring to Iraq, Iran andNorth Korea as an axis of evil in

stating that The United States of America will not permit the worlds most dangerous regimes to threaten

us with the worlds most destructive weapons17.

In September of 2002, the Bush Administration released the National Security Strategydirective

of the United States. On September 12, 2002 the President addressed the United Nations and made clear

that the policy of the United States required that Iraq be disarmed of weapons of mass destruction through

the enforcement of the United Nations, or, if necessary, by the United States acting unilaterally in self-

defense.

14Skidmore, David, Understanding the Unilateralist Turn in U.S. Foreign Policy,Foreign Policy Analysis, 2005,1 (2):207-228

15IBID p. 210

16IBID p. 212

17Bush, George W., The 2002 State of the Union: We Will See Freedoms Victory. Address at a Joint Session of Congress,

January 29, 2002. Vital Speeches of the Day, 2002, February 15: 258-262


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Clearly the Bush Administration was of the opinion that new threats in the newly constituted era

of terrorism, coupled with weapons of mass destruction in the hands of rogue nations demanded a new

security strategy. Reasoning that global terrorism and weapons of mass destruction threaten not only

national sovereignty but global stability as well, that defensive deterrence is not enough to prevent attacks

and that without preemptive capabilities terrorists will continue to take the initiative and attack at the time

and place of their choosing18

.

Neoconservatives within the Bush administration viewed imminent threat as a demonstrated act

of terrorist violence and the continued or preceding rhetoric as an indicator of intent. The administration

vehemently argued that the United States could no longer ignore strong signals of impending or ongoing

aggressive intent. Paul Wolfowitz argued that ongoing threats like those posed by Osama bin Laden in the

months prior to September, 2011, would henceforth be considered aggressive and in many cases,

actionable evidence requiring preemptive, first-strike capabilities19.

In general, therefore, the objective of the NSS Directive and the United States Counterterrorism

policy and the deployment of preemption as both a tool of security strategy as well as military

methodology are quite clear. Preemptive strikes were designed and rationalized to prevent and stop

terrorist attacks before they can occur. The NSS directive posits an imminent, multifaceted, undeterable

and potentially calamitous threat to the United Statesa threat that, by virtue of the combination of its

destructiveness and vulnerability to deterrence, has no precedent in American history. By implication,

therefore, such a threat therefore, such a threat demands an unprecedented response. This unprecedented

response, which is actually a response based on precedence, is preemptive action.20

Although needing just thirty-five pages, The National Security Strategy of the United States,

September, 2002, as has been discussed represented a drastic departure from the decades old realist

policies of containment and deterrence. The directive specifically outlined three transformative strategies

pre-emption, unilateralism and the commitment to extend freedom on a global basis.

18Bush, George W., The National Security Strategy of the United States of America,(Washington D.C.: The White House,

September 2002)19Wolfowitz used the text of Osama Bin Laden as an example of rhetoric demonstrating imminent threat:

To killthe Americans and their allies -- civilians and military -- is an individual dutyfor every Muslim who can do it in any country in which it is possible to do it, in order

to liberate the al-Aqsa Mosque [Jerusalem] and the holy mosque [Mecca] from their

grip, and in order for their armies to move out of all the lands of Islam, defeated and

unable to threaten any Muslim. Osama bin Laden

(In Fatwa entitled Jihad Against Jews and Crusaders World Islamic Front Statement,

February 28, 2000)

20Record, Jeffrey, The Bush Doctrine and War with Iraq,Parameters33 (Spring 2003)


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As has been discussed at some length here, the capstone notion of pre-emption represents a

reversal of prior notions of deterrence and containment in favor of first strike capability to deter terrorist

organizations and rogue states in possession of weapons of mass destruction the opportunity to strike

first. Perhaps in anticipation of sharp criticism, the NSS Directive understood that the prevailing norms

and international legal concepts required that pre-emptive action be in response to the existence of an

imminent threatmost often a visible mobilization of armies, navies, and air forces preparing to attack.

The document however, argues that terrorists and rogue states will not use conventional armies and

navies, but rather terrorism and possibly weapons of mass destructionweapons that can be easily

concealed, delivered covertly, and used without warning not only constitute a new threat, but demand a

new conceptualization of imminent threat based upon the capabilities and objectives of todays

adversaries21.

The second rationale of unilateralism, is posited on the notion and the language which concludes

that all sovereign nations reserve the right to act on its own behalf in the face of an imminent threat to

security. Having defined imminent threat, the Directive further elaborates that while the Bush

administration fully supports multi-lateral peace initiatives and negotiated outcomes as a deterrent to

violence, it nonetheless will not hesitate to act alone. Inherent in this argument is a belief that both the

United Nations and International Court of Justice have been slow and reticent to act in an expeditious

manner in the face of global security threats. Moreover, the Bush administration reasons that the sluggish

nature of these organizations work to encourage rogue behavior given the lack of enforceability within a

wholly anarchic international hierarchy22.

And, lastly, the third element of the Bush Doctrine can be treated as an absolute reflection of the

neoconservative notion of spreading the global reach of democracyboth as an ideal as well as security

strategy. The directive explicitly states that the United States should extend the benefits of freedom from

across the globe in order to build a balance of power that favors freedom. As was seen with Afghanistan

and Iraq, the notion of nation-building within the Bush Doctrine was met with little success 23.

Normative Principles

Although I will not provide here an exhaustive rehearsal of scholarships treatment of

international norms and concepts which guide the conduct of pre-emptive interventionist rationales, it is,

21George W. Bush, The National Security Strategy of the United States of America, (Washington D.C.: The White House,

September 2002)22IBID

23IBID


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however, important to discuss both the contextual and institutional influences which provide the

conceptual frameworks informing the legitimacy and perhaps morality of pre-emptive measures.

While International Relations scholars point to an anarchic international system, lackingboth

hierarchical or punitive authority from which to control the actions of sovereign states or non-state actors,

there does exist at minimum a number of ordering concepts and perhaps norms, which together provide at

least a tacitly conceived moral and coercive authority informing states as to the rules of the game.

Although there is little agreement among scholars as to the nature of such ordering principles, most

states, nonetheless submit to at the very least, minimalist contextual principles and foundational

structures.

It should be noted here, that this paper will view the norms and institutions discussed in the

following sections through a decidedly constructivist24lens. In as much as actors interact with other actors

and institutions to assist in providing definition to a socially constructed international order, the constructs

of norms and institutions are neither monolithic nor static. As such, the interaction of both actors and

states within the international system define both the nature and structure of social context and structural

parameters providing direction to higher order principles and norms. Because the autonomy of actors are

limited by the interactions with other autonomous actors, the behaviors of actors and states are

constrained within the context of this interaction25.

While it will not be argued here that the international system is not anarchic, the constructivist

viewpoint will hold that anarchy is what states make of it. Noted constructivist Martha Finnemore

suggests that while norms change based upon the historic interactions between actors and states, change

does not come quickly or easily. As norms and institutions constitute behavior and vice versa, they

become increasingly mutually reinforcing, and those norms consistent with the contemporary context

(shaped through the reality of interaction) of normative structures are more likely to take hold; those that

are not are lost to posterity. Finnemores conceptualization regarding the evolution of norms suggests that

when institutionalized, newly constituted norms and behaviors repeat the process of mutual

24Onuf, N.,Constructivism: A Users Manual. In Kubalkova, V. International Relations in a Constructed World(pp. 58-78)

Amonk, New York, USA:M.E. Sharp, Inc

Nicholas Onuf (World of Our Making, 1989), is generally viewed as operationalizing the IR Theory of constructivism. Based onthe concept that humans are social beings and the world is socially constructed, it explains that interactions with other agentsand structures, provide meaning to each other and are therefore mutually constitutive.25IBID p.59


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reinforcement, enabling related behaviors to emerge while compelling actors to conform to avoid conflict

or de-legitimization26.

This interpretation seemingly mitigates the effect of a purely Hobbesian state of nature in which

an anarchic international order is inherently aggressive. So to, the constructivist approach would posit that

explaining state behavior through the realistlens of anarchy, egoism and material power, stands wholly

insufficient to describe the evolution of operational norms, principles and institutions.

Given the background illustrated here, it is possible to locate at minimum, the conceptual

principles of importance from which to view the concepts of the Bush Doctrine more generally and

preemption more specifically. However, in doing so, this paper will later argue, that from a constructivist

viewpoint, the ordering norms discussed below are subject to the changing contextual landscape as a

reflection of the realistic challenges of contemporary security concerns.

Just War Tradition

International Relations Theory often defines the relations between states based upon a

presumption of international anarchy. Generally, this context refers to the state of nature as described by

Thomas Hobbes. Hobbes describes this state as inherently aggressivea war of all against all. The

resulting logic of this statement therefore assumes the conditions of law and morality are absent, and in its

place, fear and power are the primary and dominant reflection of the anarchic condition27.

Critics of Hobbes have pointed out that to assert that the state of nature is inherently immoral, is

to also maintain that by asserting this claim, the claimant is indeed assuming the international system

must, therefore possess a moral and legal fabric. By logical extension, an existence of a moral and legal

framework would assume at least the most elemental morality guiding states in the area of warfare and

acts of aggression. Although anarchic in the sense that the international system lacks an ordering

hierarchy, the most basic elements of morality weaved together must therefore form at the very least a

constitutive basis of guidance28

.

These elemental notions of legality and morality can be found in two very important doctrines

which inform the use of force, and more specifically the basis of the general critique of the Bush

Doctrines interpretation of these normative concepts. Specifically, the criticism contends that the

26Finnemore, Martha, International Norm Dynamics and Political Change, International Organization (The IO Foundation andthe Massachusetts Institute of Twechnology) 52, no. 4 (Autumn 1998): 887-917. P. 88827Gauthier, D., 1969, The Logic of 'Leviathan': the Moral and political Theory of Thomas Hobbes, Oxford: Clarendon Press.

28Curran, E., 2006, Can Rights Curb the Hobbesian Sovereign? The Full Right to Self-preservation, Duties of Sovereignty and

the Limitations of Hohfeld,Law and Philosophy, 25: 243-265.


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rationales guiding the notions of pre-emption both the rights granted sovereign states as established under

the 1648 Treaty of Westphaliaas well as the tenets outlined inJust War tradition29.

Central to the principles of sovereignty and Just War traditions is the supremacy of

nonintervention and nonaggression. From this perspective, there exists an inherent equality between

states, a right to self-determination and a universal obligation of nonintervention. The notion of state

sovereignty as a near absolute was enshrined in The Treaty of Westphalia. Given the perspective and

tenets of the Treaty, and the consent of the parties to subject their states to both its general intent as well

as specific precepts, at minimum, states therefore agreed to operate within a procedural and moral

framework of international justice30.

This framework further constituted a mutual respect for equal sovereignty of each state or society

and injustice could therefore not only be generally conceived but more specifically defined as a crime of

aggression through the violation of the foundational frameworks underlying the system itselfthe

concept of nonintervention.

More specifically, the moral presumption against the use of force rests upon a cosmopolitan31

perspective viewing the state right of self-determination as a manifestation of individual rights. As a result

the principle of nonintervention must therefore rest on the individual right of security, aggression is

therefore not only an international crime because it violates national sovereignty, but more fundamentally,

it violates the rights of the individuals presumption of security32

.

This paradigm presumes the use of force must be morally justified. Logic would also therefore

hold that there may be a circumstance that also justifies or even morally demands the use of force. As a

result, morality becomes the guiding principle for nonaggression as well as the use of force.

29Murphy, S.,Humanitarian Intervention, University of Pennsylvania Press, Philadelphia, 1996, p.37.

The concept ofJust War Theoryis generally associated with Augustines doctrine of just war. Additionally, it can be traced toAristotlesPolitics, posit thatwar was a means to defend the good life and to help others share in the good life. Similarly,

Thomas Aquinas suggested that the target entity of the intervention must have had some form of guilt, while Vitoria (1492-1546)viewed the duty of civilised states to intervene in the backward states to end inhuman practices. Grotius (1583-1645) added tothese criteria. Early Jewish, Greek and Roman natural law traditions from the Christian Just War Doctrine emerged containingidea relating to the justice of using force against another: p.40-41,62.30Nardin, T., 1996, The Ethics of War and Peace, Princeton, NJ: Princeton University Press.

31Immanuel Kants 1795 essayPerpetual Peace, is generally viewed as the foundational work for cosmopolitan theory. Kant

proposes a communal understanding informing the guiding principles from which to protect people from war, and morallygrounds the cosmopolitan right by a universal hospitality. Kant claimed that the use of the right to the earths surface which

belongs to the human race in common would finally bring the human race ever closer to a cosmopolitan constitution. See Note#7.32Kant, I. 'Toward Perpetual Peace' in Practical Philosophy-Cambridge Edition of the Works of Immanuel Kant. Gregor MJ

(trans.). Cambridge University Press, Cambridge. 1999. p329 (8:358).


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The Just War traditions inform the moral criteria for determining whether the use of force is

therefore morally justified. These criteria comprise what is traditionally referred to asjus ad bellum

(applied to the legitimacy of the use of force) andjus in bello (pertaining to the just conduct of war).

More specifically, use of force came to be defined as legitimate when meeting the criteria of: just cause,

right intention, right authority, last resort, and reasonable prospects for success33.

The United Nations and the International Court of Justice

The recognition of state sovereignty, frameworks regulating acts of aggression and a respect for

non-intervention were formally institutionalized when the United Nations included it in its June 26, 1945

organizing charter, Articles affirming these concepts and further signaling its intent to consider non-

intervention as both a legal norm and ordering doctrine. Providing further commitment to these ideals was

the 1949 decision of the International Court of Justice rejecting the possibility that a right of intervention

by force would be consistent with international law. In its ruling in the Corfu Channelmatter, the Court

stated, whatever be the present defects in international organization, the right of intervention by force

cannot find a place in international law34.

In an effort to more precisely understand the intersection of the NSS Directive with the

controlling international norms and principles, a more precise review of both the United Nations Charter

and International Law will be discussed to shed light on the morality and legitimacy of the NSS Directive.

Additionally, a review of the Bush Administrations rationales and arguments should provide important

background as to the nature of the NSS Directive and their interpretation of United Nations and ICJ

opinion governing the use of force.

Turning first to the intent and language of the United Nations Charter, there is evidence that

multiple provisions speak directly to the notions of preemption and the use of force. The preamble in

particular states that the very formation of the United Nations was based on the over-arching principle of

saving succeeding generations from the scourge of war and stipulating in Article 2[3] that its members

were therefore obligated to settle their international disputes by peaceful means. Article 2 [4] instructs

members to refrain in there international relations from the threat of use of force against the territorial

integrity or political independence of any State, or in any manner inconsistent with the purposes of the

United Nations35.

33Walzer, M.,Just and Unjust Wars: A Moral Argument with Historical Illustrations, (4thed. New York: Basic Books, 1977).34International Court of Justice (ICJ), Corfu Channel (United Kingdom of Great Britain and Northern Ireland-Albania),

Judgement,ICJ Reports 1949,para. 29.35Charter of the United Nations, Statutes and rules of court and other documents, International Court of Justice, The Hague.


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Additionally, Article 39 creates a system of collective security in which the Security Council is

authorized to determine the existence of any threat to the peace, breach the peace, or act of aggression,

and to decide what measures shall be taken to maintain international peace and security. Article 51

further comments, that although the Charter generally seeks to deny the use of force by states against their

adversaries, it does recognize the right of nations to use force for the purpose of self-defense only after an

armed attack has occurred36

.

While a strict interpretation of Article 51 would all but negate the legitimacy and use of pre-

emptive measures involving the use of force, the Bush Administration as well as a number of scholars are

concerned with the scope of the right to self-defense as well as the literal construction of Article 51.

Central to the argument of literal construction is an argument advance by scholars that the narrow

interpretation has the consequences, albeit perhaps unintended, to protect an aggressors right to strike

first. The literal interpretation of the Article requires such an unreasonably high threshold as to what is

actionable evidence for self-defense so as to render the self-defense provision of Article 51 as

meaningless37.

Bush Administration National Security Advisor Condoleeza Rice, elaborated on the notion of

imminent in her defense of the Bush Doctrine notions of pre-emptive self -defense noting that

extremists who seem to view suicide as a sacrament are unlikely to ever be deterred. And new

technology requires new thinking about when a threat actually becomes imminent. So as a matter of

common sense, the United States must be prepared to take action, when necessary, before threats fully

materialize38

Similarly, advocates of a more general interpretation of Article 51additionally posit that a

continued support of the present construction and or strict interpretation of Article 51belies the fact that,

in practice, states have used force as a pre-emptive measure, while the international community has

evaluated these measures based not on the strict interpretation of Article 51, but on the basis of traditional

notions within international law as they pertain to the notions of constraint of necessity and

proportionality39.

This logic necessitates, therefore, a discussion regarding the treatment of anticipatory pre-

emptive measures within the domain of international law. It is here that the Bush Administration has

36IBID

37Simma, Bruno, The Charter of the United Nations: A Commentary, Oxford, Oxford University Press, 1994 p. 677.

38Rice, Condoleeza, Rice Discusses Presidents National Security Strategy,Foreign Affairs, March, 2002.

39IBID


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argued that the conditions qualifying the legitimacy of a pre-emptive strike must consider the gravity of

the threat being posed by the potential aggressor.

Generally, the most widely cited case law which speaks to anticipatory practices and the

conditionality of constraint and proportionality is the Carolinedoctrine of 1842. The Caroline case

represents the agreement of British and American officials at the time that the use of defensive force is

permitted when the necessity of that self-defense is instant, overwhelming, and leaving no choice of

means, and no moment of deliberation. Using the Caroline logic, that terrorists are planning a series of

attacks, a state may respond to prevent future attacks about which it has evidence. The enemys intention

to continue terrorist activities, following a confirmed aggression, provides evidence necessary to meet the

Carolinecriteria as a lawful response40.

International legal scholars have noted that this interpretation of the Carolinecase is an overly

generous extension of the Caroline logic. In this regard, these same scholars do not accept the argument

that either the Caroline case or customary law provides a compelling argument for pre-emptive strikes.

Similarly, the lack of standing in the International Court of Justice in the form of a direct ruling on the

matter of pre-emption provides evidence that there is little support for this notion in the international

community41

.

Finally, proponents of a broader right of anticipatory self-defense generally construct their

argument surrounding the word inherent in Article 51. These legal scholars argue that Article 51

explicitly observes by its language not to impair the inherent right of self-defense. As a result the

language left intact the law of customary self-defense, predating the adoption of the UN Charter. By

extension the tenets of customary law, therefore left open the opportunity for anticipatory self-defense.

This inherent right logic argues that the parameters of the right of self-defense are and should be

unchangeable by the UN Charter. Reasoning that the supremacy of customary law42trumps UN Charter

articles as advisory, no authority has ever been identified as rendering anticipatory self-defense as

anything other than a positive defense43

.

The Realist Lens

40Martyn, Angus, The Right of Self-Defense Under International Law, The Response to the Terrorist Attacks of 11 September,

Current Issues Brief No. 8 Canberra. Department of Parliamentary Library.41Gordon, Phillip, The End of the Bush Revolution,Foreign Affairs, 2006, 85(4), 75-86

42The supremacy notion is expressed within International Law as the notion of thejus cogensprinciple. Literally translated from

its Latin meaning of compelling law, these principles in customary law serve as preemptory norms which form the fundamentalbasis of international law.43Cook, Martin, Ethical and Legal Dimensions of the Bush Pre-emptive Strategy,Harvard Journal of Law and Public Policy,

September, 2003.


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Among the most visible opponents to the NSS Directive as well as the subsequent invasion of

Iraq, realists viewed the neo-conservative policies of the Bush administration as being overly bellicose.

Warning that the Bush policies would be conceived as operating outside the norms of international law

and principles, realists suggested that these policies would engender deep and vocal anti-Americanism in

the global community. Among realist political figures, foreign policy experts Zbigniew Brzezinski and

Brent Scowcroft also argued that replacing Americas traditional balance-of-power approach in the

Persian Gulf with the Bush Doctrines neo-conservative approach, would lead to a strategic blunder,

making it more difficult for the United States to protect US vital interests in the region.

Leading realist Stephen Walt argues that the decades old US containment policies utilized by

previous administrations served Americas security interest very effectively. Walt contends that what

brought order to a post-World War II international landscape, and was a large contributor to the downfall

of the Soviet Union, was a foreign policy erected on containment and deterrence while reserving

resources for more important uses.

For realists, who argued against a pre-emptive invasion, Iraq was viewed as a periphery concern.

Reasoning that the terrorist network and the capture of Osama bin Laden should be the central task of

foreign policy and that Iraq could not only be contained but deterred. Therefore, the reasoning held, that

pre-emption was an unnecessary use of force. Here realists dispel the notion of nationalistic foreign policy

crusades to spread the democratic ideal. Leading realists Hans Morgenthau and John Mearsheimer viewed

the Wilsonian project of spreading democracy as an egregious foreign policy error. Both Morgenthau

and Mearsheimer agree in their critique of the neoconservative democratization agenda in advising that

the internal structure of states should be of little concern to foreign policy makers. In their view, states

should conform to the consensus of sovereignty and autonomy of other nations, regardless of the brand of

politics practiced by the nation. As an extension of this rationale, this equality of standing engenders a

system which allows for the same basic incentives for all great powers44

.

Consistent with the rejection of an international democratization agenda, realists reject the neo-

conservative, Viet Nam era domino approach of bandwagoning. Stephen Walt argues that the bandwagon

argument put forth by neoconservatives incorrectly argues that displays of power and resolve by the

United States will discourage further resistance and lead more and more states to conclude that it is time

to get on our side45

. Realists reject the notion that states are inclined to bandwagon because the

participating state would be conceding power to a rival state, which violates the self-help rationales of

44Mearsheimer, John, Hans Morgenthau and the Iraq War: Realism vs. Neo-Conservatism, Open Democracy,2005, p.4

45Walt, Stephen M., Keeping the World Off-Balance,America Unrivaled,p. 133


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anarchical international systems. Moreover, the concept of bandwagoning runs counter to the centerpiece

rationale of balancing46as subscribed to by most realists.

Equally strident in his criticism of the desire to universalize American ideals, was his criticism of

viewing this image as one in which the United States was inherently endowed with a superior moral

center.Namely, to conceptualize the national interest in universalistic moral terms47was in itself

dangerous to the national interest of the United States. In 1947, he wrote a foreign policy based upon a

moral principle, which by definition relegates the national interest to the background, is of necessity a

policy of national suicide, actual or potential. The choice for Morgenthau then is the choice not between

moral principles and the national interest, devoid of moral dignity, but between one set of moral

principles derived political reality48

Similarly, Richard Ned Lebow, criticizes the neo-conservative desires for universal morality and

democratic principles. Lebow posits that these concerns should always come second to calculations

based on the balance of power between states and on threats of opportunities to improve their own

security49. Lebow laments that since Thucydides, realists have been aware of the human tragedy, a cycle

whereby power in the international system becomes a double edged sword. The temptation as a unipolar

hegemon to extend moral superiority often leads to unwinnable conflicts, ultimately undermining the

hegemons power while weakening its position in the world order50.

It should be noted that realists and neoconservatives, in fact do share similar viewpoints in their

general dis-regard, if not mistrust for the United Nations and similar international structures. Realists have

a strong and deep history of opposition to the adherence of rules of international organizations, and agree

the United States should chart its own destiny when in it is in their best interest. Morgenthau believed that

the international arena is a state of anarchy in which violent and power hungry states constantly vie for

power and where international institutions do little other than prescribe norms and codes of honor that are

easily broken51.

However, while the neoconservatives and realists may share agreement regarding the efficacy of

the United Nations and other international organizations, realists are not so quick to support the notion of

unilateralism as supported in the Bush Doctrine. Joseph Nye insists that unilateral actions actually

46See discussion of balancing in Hans Morgenthau,Politics Among Nations, Fourth Edition, Alfred A. Knopf, New York, 1967.47Morgenthau, Hans J, The Primacy of the National Interest, The American Scholar(Vol. 18,No. 2, Spring, 1949)p.210

48IBID, p. 33

49Lebow, Richard N, Classical Realism, in Dunne, Kurki & Smith,International Relations Theories: Discipline and Diversity,Oxford University Press, Oxford, 2007, pp. 53-5850IBID51Morgenthau, Hans,Politics Among Nations, Fourth Edition, Alfred A. Knopf, New York, 1967.p.27.


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undermine the moral authority of the United States in its role as an international hegemon. He further

points out that a number of issues faced by the United States require global solutions which are inherently

multilateral concerns. While Nye does have some reservations regarding the ability of smaller nations to

use multilateral conditionality as a ploy to gain strength, he concedes that the best practice in the long run

is to work cooperatively with other nations in a multilateral environment. Here Nye suggests the ability of

the United States to work cooperatively with other nations increases its power to achieve outcome by

utilizing its soft power52the ability to entice and attract and to inspire the dreams of others by

leading by example and encouraging others to seek out the same mutually beneficial goals.53

Finally, the realist paradigm questioned the argument of preemptive intervention. True to the

tradition of prior administrations, realist adamantly believed that Saddam Hussein and the threat of

terrorism could be contained. According to Mearsheimer, an examination of Iraqi recent foreign policy

demonstrates little evidence that Saddam Husseins regime was inclined to use weapons of mass

destruction or unilaterally attack the United States. In fact, Mearsheimer contends that if there is one

thing to be learned about Sadam Hussein, it is that he wanted to survive and remain in power54. For

realists like Mearsheimer, there was clear and decisive evidence to oppose the neoconservative notions of

pre-emptive engagement with Iraq and other terrorist organizations.

Conclusion

The study of international relations is supposed to tell us how the world works. Its a tall order,

and even the best of theories fall short.55In 1998, Stephen Walts One World, Many Theories, suggested

that three approaches dominated the field of International Relations, realism, liberalism and an updated

form of idealism in new clothes- constructivism56. It is interesting that, although published in 1998,

there was little mention of the neo-conservative school. Yet despite the robust contributions of the three

fundamental schools of thought, neo-conservative thinkers dominated an important period of United

States history.

Emerging from the now much discussed common global threat of terrorism, these thinkers

proposed that the world as the traditional schools viewed it, was very different in reality and practice.

Rejecting the realist paradigms anchoring preceding administrations, the Bush White House envisioned a

52For a more comprehensive discussion of Joseph Nyes conceptualization of Soft Power see Joseph S. Nye Jr. in Soft Power:

The Means to Success in World Politics.53Nye, Joseph, The paradox of American Power: Why the Worlds Only Superpower Cant Go it Alone, Oxford University Press,

Oxford, 2002 p. 13854Mearsheimer and Walt,An Unnecessary War, p. 5455Snyder, Jack, International Relations: One World, Rival Theories,Foreign Policy, Nov-Dec 2004.

56Walt, Stephen M., International Relations: One World, Many Theories,Foreign Policy, Spring 1998.


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need for an approach which walked a thin line between legitimate foreign policy conduct under the

currently constituted international norms and principles, and the illegitimate, and some would contend,

illegal practice of foreign policy and military response. Imploring the global community to adjust the lens

through which response to aggression is measured, the Bush Doctrine called for what many would call,

radical and substantive change.

The international community has largely viewed the post Iraqi and Afghanistan invasions and

occupation as a dismal and costly failure of the neo-conservative Bush Doctrine. Granted, the realist

critique makes a strong case condemning the rationales of the neo-conservative Bush White House.

Certainly, the outcomes of the Bush agenda would seem to support many of the realist claims. While the

neo-conservative agenda may have been proven to be lacking in the efficacy of its theoretical and

operational constructs, a critique of the more narrowly defined NSS Directive Bush Doctrineand its

rationales for both pre-emption and intervention are an altogether separate issue. To discount these

rationales on the basis of the failure of the larger scope of the neo-conservative program would be

capricious.

The NSS Directive posits a formulation from which to approach matters of threat and security. It

is also intended to provide and inform as to the overall response to a general category of threat,

specifically terrorism and weapons of mass destruction. Certainly constructed as a response to the events

of September 11, 2001 and the antecedent and ongoing threat of the Iraqi regime, its value can also be

seen in its ability to speak to the larger element of the ongoing threat of global terrorism as well as

provide a framework from which to judge the response to subsequent but similar threats (e.g. Iran, North

Korea etc.).

Here I will argue that the NSS Directive known as the Bush Doctrine, while perhaps flawed in its

application, correctly perceived the nature of the emergent terrorist threat and constructed an effective

apparatus and theoretical framework from which to respond to ongoing security threats. As was discussed

in some detail, and again I will argue here, that the nature of the current threat left the traditional norms

and practices (The UN Charter, International Law and Just War traditions) wholly incapable of

responding adequately and no less expeditiously in the face of global terrorism and its core values.

Much of the case built by the Bush administration centered on the notions of pre-emption in the

face of an imminent threat and the reserved right of a sovereign actor to act in a unilateral fashion

should the international community fail to proactively come to terms with a contextually changed threat

construction. The call made by the Bush administration to re-evaluate the normative criteria challenged

the international community to sever the roots of traditional norms and principles in favor of a new


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framework erected as a reflection of new threats. It is patently obvious that this pathway was not

supported by most thinkers57.

While familiar norms

and principles continue to dominate international relations, so to do familiar theories about how the world

works still dominates academic debate. In the place of new context replacing old realities, political

scientists and IR theorists simply adjust old theories to meet the needs. I will contend here that the old

theories coupled with old norms and principles are wholly incapable of effectively responding to the

deep and troubling global security threats, much less tell us how the world works.

The case against realism acting as the guiding light in explaining a contemporary world, is one

that strikes at the very core of their belief systemthat international affairs is a struggle for power among

self-interested states. Contemporary realities challenge and undercut the realist concept regarding balance

of power. The belief that weaker states will ally to protect themselves from stronger ones and thereby

form and reform balance of power has certainly not been evidenced in the post-cold war era. No

combination of states or other powers have aligned to challenge the United States militarily, and there is

no evidence of a balancing coalition emerging in the near future. Even more damaging is that the United

States, if not the Bush administration, declared war on a non-state actorterrorism and specifically, al

Qaeda. This provides realists with a difficult explanatory challenge. The contemporary realities of the

international landscape seemingly conspire to damage the core notions of the realist doctrine.

While some may contend that neo-conservatism has passed from the scene as a serious discourse

in International Relations theory as but a momentary aberration, there remains a crucial challenge to

realism. Specifically, can the theoretical analytic positions claimed by realists be defended in the context

of both normative as well as strategic grounds, and more precisely, can the realist notions while cogent

enough as theory and applicable enough for the time periods preceding the end of the Cold War, become

sufficiently operational as a realistic tool from which to address todays international order and growing

threat of global terrorism.

To be sure, it is questionable whether leading realists have the capacity or will to fully

acknowledge that the global threat of terrorism requires a fundamental shift in theory and more

importantly practice. John Mearsheimers comments seem to reflect the inability of realists to grasp the

57While it is an altogether theoretical argument, which will not and is not explored here, it is my opinion that the international

community allowed the perceived, if not evident rationale for the invasion of Iraq for the purpose of regime change to influence

the more explicitly defined parameters and justifications for pre-emption rather than a commentary on the quality and ultimate

outcomes of the pre-emptive intervention itself.


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changing face of international security requirements. Mearsheimer posited, realism is really about

relations among states; especially among the great powers, Al-Qaeda is not a state, its a non-state actor,

which is sometimes called a transnational actor and as such does not by its very nature constitute a re-

ordering of balance of power theory58. Unfortunately, the rejection of an objective fact that the terrorist

threat is real and plays an ever increasing international role, continues to call into question the ability of

the realist paradigm to address the issues of contemporary and practical relevance.

Despite all of its failures and missteps, the neoconservative agenda and movement inspired

sufficient political and social mobilization in its ability to become not only the preferred policy of those in

power, but encouraged an energized and faithful public electorate. Although realistic thinkers may feel

vindicated, crucial challenges remain. Although clearly beyond the dimension of this paper, it is

interesting to consider what will emerge as an operational approach to International Relations Theory.

While the Bush Doctrine failed to contemplate fully the impact of its rationality in its entirety, the

National Security Strategy represented a pragmatic approach to security strategy in the face of a threat

which is emerging and refuses to play by the rules of the game. The nature of the enemy has changed.

The nature of the threat has changed. As a result these changes necessitate a foreign policy and security

strategy which adjusts a response to the enemy as a reflection of a changed threat. When considering the

stated purpose of international terrorist groups, the United States cannot rely on purely reactive measures.

Catastrophic attack must not be the barometer by which pre-emptive measures may be deployed. Prudent

states reserve the right to act in the interest of their sovereign society. As a result, the 2002 National

Security Strategy of the United States and its call for pre-emptive military intervention in reaction to an

identifiable threat was, and may very well still be, a necessary response and a necessary method to deter

the threat of terrorism and the deployment of weapons of mass destruction.

58Shimko, K.L.,International Relations: Perspective and Controversies, Boston, MA., 2009, Wadsworth Publishing


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The Neoconservative Bush Doctrine - A Question of Legitimacy

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