The Special (Moral) Circumstances of Preventive War

Stephen E. Lammers, Ph.D

Lafayette College

Easton, Pa

Preemptive and preventive wars recently have come under a good deal of  scrutiny.  One of the central questions concerns when, if ever, it is justifiable to wage them.  Few scholars have paid any attention to the question of whether either type of war might have special moral responsibilities associated with them assuming that it is justifiable to wage such wars at all.  That is the question that concerns me in this paper.  After trying to get clear on the difference(s) between preventive and preemptive war, I will spend the remainder of the paper discussing what I take to be the special moral responsibilities associated with preventive war.  I want to stress that the paper is a thought experiment within the just war tradition, a thought experiment which might best be understood as responding to the following question:  Assuming that it is possible to distinguish between preemptive and preventive war and assuming that it is justifiable to wage preventive war, what might be the special moral requirements associated with this type of war, requirements that may or may not be associated with the usual requirements of waging a justifiable war?  I hasten to add that it is preventive war and not preventive attack that is the subject of the thought experiment and it is war between states that is the focus of my attention.   I further hasten to add that when I speak of preventive war, I will assume that if it is justifiable, not only the United States but any state can wage it and is subject to the constraints that I identify below.  Preventive war cannot be the sole prerogative of the United States and this type of war’s limits and responsibilities cannot apply solely to that country.  At the same time, as will become clear, the recent discussion of the issue of preventive war has been driven by statements and actions of the United States government.

I.          Any discussion of “preventive” as opposed to preemptive war runs a not inconsiderable risk.  The discourse in the larger society uses the term “preemptive war” to talk about a variety of forms of warfare, often without any clear definitions or descriptions of what is at stake.[1] The consequence of this is that if one argues that preventive and preemptive wars are different in important ways, one must articulate that difference.  It may be the case that there are situations when one type of warfare begins to shade over into another type; the world is a lot messier and a lot more interesting than our categories.  Yet if we begin with some clarity about what it is that we think we are doing, we will be better prepared for those moments when the world presents us with those occasions when reality is more complex than our analysis of it.  The question remains however, where to begin in order to understand. 

I am responsible for a course in the New Testament so it is not surprising that I want to begin with two texts, both of which are well known.  The first text is from the section entitled “Anticipations” in Michael Walzer’s Just and Unjust Wars and the second is entitled, “The National Security Strategy of the United States of America.”  Let me begin with Walzer’s discussion of “Anticipations” and use him to help us be clear about the distinction between preemptive and preventive war.

Walzer distinguishes between cases of preemption, which he thinks is sometimes justifiable, and prevention, which he does not.  He uses the oft-quoted statement of Daniel Webster in the Caroline case to assist him.  Webster wrote that in order to justify preemptive attack, one must show “…a necessity of self-defense…instant, overwhelming, leaving no choice of means and no moment for deliberation.”[2]    In the rest of discussion of these two types of wars, Walzer contrasts the Six Day War with the war of the Spanish Succession.  He thinks that the first fits under Webster’s description of preemptive war and the second, which was waged in order to maintain the balance of power in Europe, does not.  Walzer argues that the second war, which he calls a preventive war, was waged on behalf of an idea about how Europe should be governed and not because there was an immediate threat to a particular European nation.  Walzer insists that one of the difficulties with any scheme that would justify preventive war is that it confuses threats with fear.  War, he insists, ought to be waged because of real threats, not because of fears that we have about actions that may or may not take place in the future.[3] 

Presuming for the moment that Walzer is correct in his moral assessment of the two types of war, we still need to learn if either type of war is under consideration today.  Thus the need to turn to the second text on National Security.  Before I turn to the text, I would like to note the context of the statement as it is outlined in the letter from the President accompanying it.  In that letter, the President indicates that it is part of the responsibility welcomed by the United States to “…to further freedom’s triumph…”  The question that arises is,  “Is ‘freedom’s triumph’ something like the ‘balance of power’ from an earlier era that Walzer mentions?”[4]  If it is, then the reservations that Walzer had about the “balance of power” might well apply to “freedom’s triumph.”

The text of the “The National Security Strategy…” never formally speaks of “preventive warfare” but uses the term “preemptive” any number of times, among them in a section entitled (not without some irony for my purposes) “Prevent Our Enemies From Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction.”  The text provides us with a puzzle in the way in which it talks about preemptive warfare.  On the one hand, it reiterates that it is long standing American doctrine that preemptive war is permissible and that America retains the option of preemptive war.  In that vein, it is quite easy to understand the statement  that, “…we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country;…” [5] Here the statement appears to echo the statement of Daniel Webster noted above.  Thus factually, it would appear that the statement is correct about past American practice.  But things do not remain so simple.

The central claims about a new type of war come in Section V of the document, which takes up threats from enemies with weapons of mass destruction.  Our current situation is contrasted with that of the Cold War, where, it is argued, deterrence and the doctrine of mutual assured destruction served to protect the United States.  What is new, according to the National Security Statement, is the existence of what are called “rogue states” who seek weapons of mass destruction and who sponsor terrorism.  They will not be, claims the National Security Statement, deterred.  We do not have time to investigate that factual claim here but it should be noted that it is at a minimum debatable.[6] 

The Statement goes on to make its major claim.  It notes that preemption is legitimate under international law but that the concept of “imminent threat”, the type of threat whose existence justified the preemptive response, that concept needs to adapted to our new circumstances.  Here the ambiguity that underlies the text is displayed. Let me quote again from the Statement itself.  ”Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, names, and air forces preparing to attack.  We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.”[7] Note that beyond the usual considerations, we have to consider the capabilities and, this is important, our estimate of their intentions with respect to those capabilities.[8]  A little later on the same page we read:

            “The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security.  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.  To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.”[9]

            The usual understanding of preemptive war against an imminent attack is not denied but, the National Security Statement argues, it is not sufficient for our new circumstances.  It does not appear that the threat(s) to the United States must be immediately dangerous.  All that is important, it would appear, is that these new threats involve at least one or more of the following: weapons of mass destruction, rogue states, and connections to terrorists.  These new threats demand not only the willingness to respond but also the willingness to respond in a way different from the response of deterrence and different from the response of preemption as it was understood in the past following Daniel Webster.  Of course, one of the obvious questions is how we are to name this new kind of response.  The second question is “Against whom will this response be taken?”  Although rogue states and terrorist organizations are mentioned, it is not clear whether one or both of these entities will be the targets of this new type of warfare.[10]  It is also not clear that it is a necessary condition that weapons of mass destruction be present.  We are told that what is important is the capability of a political opponent and our estimate of that opponent’s intentions.  What is unclear is whether their actual intentions count for little or much. 

            This second text interests me for any number of reasons.  As a theologian I am intrigued by the context within which these quotes are set and by the hubris displayed throughout the document.  Quite candidly, the claims make the British Empire at its height seem like a humble operation.  But that would be the topic of another paper.  Secondly, as a student of texts, I am always interested in what a text does not name.  In this case, there is something new which is not named as such but which the authors of the document develop under the older rubric of preemptive war.  Of course, if they were to name it what it is, preventive war, the authors of the text would be open to any number of criticisms that would be well known to this audience.  Better to extend the doctrine of preemption than to advise that a doctrine of preventive war is being put forward.

Third, I am intrigued that this new doctrine is announced, without debate and without consultation with the United States’ allies.  In case we have forgotten, deterrence was a proposal accepted by our allies and eventually developed in conversation with them.  This is not to say that the relationship with these allies was without difficulties; the French for example, did not believe that the United States would risk an attack upon its own territory in order to protect France.  But there was general  agreement about deterrence.

To the point under discussion, all one can ascertain is that the United States is now committed to something beyond preemptive war although it is not called by another name.  It is not accidental, I think, that the term, “prevent” appears in the document in contexts like the ones I am discussing.  The United States will endeavor to prevent something from occurring.  It is my judgment that without formally naming it as such, the document develops a conception of preventive war that will, the document tells us, be the policy of the United States.

II.         It is the concept of preventive war that intrigues me.  Wars of prevention, undertaken to prevent a threat not realized from ever becoming a realized threat, open up the possibility of many more wars.  Commentators within the just war tradition generally are worried when countries announce doctrines that would increase the possibility of more war.  More worrisome still is the fact that preventive war, as understood in the document, is not recognized under international law, except, it would appear, to be forsworn. 

Even if one could overcome these kinds of worries, we need to know if there might be, and if so, what might be the special moral responsibilities that one would have if one were to wage a preventive war?  Or does preventive war proceed under the same moral limitations as preemptive war and not entail any more moral responsibilities?  It appears that this is the case for the authors of this document since they focus on when war might be undertaken.  There is no reflection on whether something else might be required of the United States before the war, during the war, or after the war if the United States proceeds under what the document identifies as the new circumstances of our age.  All that the authors of the document do is shift the meaning of the term, “preemption”, and proceed to announce that there will be new occasions of war.  There appears to have been no reflection on whether there might be new moral responsibilities associated with this new type of war and, if so, what these responsibilities might be.  To use the classical language of the just war tradition, there is no discussion of what might constitute the jus ad bellum, the jus in bello, and the jus post bellum for this new understanding of  preemptive (read preventive) war.   

            This entire discussion assumes of course, that it is possible, at least theoretically, to make an argument for the justifiability of preventive war as it is described in this document.  For the remainder of this paper, I am going to assume the opposite of Walzer’s conclusion given above.  Namely, I shall now assume that preventive war is justifiable and I will make the assumption within the context of the just war tradition.  What follows then is a thought experiment.   What I am going to attempt to do in the remainder of this paper is to argue that preventive war involves special responsibilities that, up until now, have not been discussed under just war criteria as these criteria are usually put forward.  The practical implication of this is direct.  Those who argue that what is in effect preventive war is now permitted and/or required given the kind of threat(s) to the United States must take it upon themselves to show how they will meet these additional responsibilities.  I will argue that a failure both to show how these responsibilities will be met and a failure to put in place personnel and resources to meet them is, in my view, a moral failure.  It is a moral failure of a particular type.  Just as it would be a sign of professional incompetence to send men and women into combat totally unprepared when you could have prepared them, or without the proper equipment when such was available, in my judgment it is a sign of political and perhaps military incompetence to go forward into preventive war without meeting these responsibilities.  What might these responsibilities be?[11]  But I am getting ahead of myself.  First, I need to ask why I think there are special responsibilities and then need to state what these responsibilities are.

III        In order to answer the first question, I want to focus on a feature of preventive war that is assumed but not generally taken into account in a systematic way.  That feature is time. 

When one wages a preventive war, the necessity for going to war is of a different kind than when one usually speaks of war.  Especially within the tradition of justifiable war discourse, war, if it is to be morally permissible, must have a characteristic of necessity about it, there must be, realistically, no other choice.  There must be no other way to solve the problem.  The injustice which is being confronted is so serious and life-denying that one cannot wait or the threat to the nation is so imminent that to wait is to give a perhaps fatal advantage to the enemy.  One can identify the threat, it is real and it is imminent or it already has manifested itself in attack or occupation. [12]

            Not so in preventive war.  Not only is a particular threat not present; one has the luxury of time. As opposed to the usual descriptions of defensive war, preventive war gives one time to plan.  Further, the maker of war has aims with this type of war that are not usually part of the discussion of war against acts or threats of aggression.  Consider again Walzer’s discussion of the balance of power and preventive war.  The statesmen of Europe had the aim of maintaining that balance in a future not yet known when the balance might be threatened  in ways they could only dimly foresee.  That meant that not only did they have to keep the potential enemy from overreaching; they themselves had to learn not to overreach so that the balance would be upset from another direction.  Obviously, the aims of preventive war are different today but the important point here is to recognize that the kinds of goals preventive war is waged for are goals that often cannot be considered, at least initially, when one is in the process of defending oneself against attack.[13]  We must put these aims into the context of the time that is available before the war.  I realize that the matter of time is controversial here.  The point I am trying to make is that preventive war opens up the possibility of more time for planning and that this additional time is important in determining one’s moral responsibilities and therefore, ought to be considered as one enters the war.  Thus my second question.  What responsibilities do I have in mind?

            To begin: I do not think that any of the usual criteria for a justifiable war being mitigated or lessened.  Taking the list of criteria from Walzer, the requirements of jus ad bellum and jus in bello remain in force.  I will suggest a modification to jus ad bellum requirements and add a robust set of jus post bellum requirements.  I will begin by focusing on one of the criteria of jus ad bellum and then turn to the entire range of issues under what is now being called jus post bellum.  I am concerned with what one has in mind for the peace that follows the war as well as the other conditions that will occur following the war.  Before I turn to these, I must clarify one potential confusion here, a confusion that pervades, in my judgment, much of the discourse about war today.

            I want to use the term “war” to apply to a contest of arms between nation states.  To put this colloquially, there may be threats of conflict from actors not associated with particular nation states but one uses the term “war” one confronts persons who have an address and all the other paraphernalia of the modern nation state.  If we are speaking about confronting persons who kill civilians and terrorize them with their attacks, but who are not responsible to a usual command structure nor to a sovereign authority, we are speaking about criminals, serious criminals to be sure.  But attacking them does not constitute war and attacking them before they carry out the crimes they are planning does not require the constraints that would be applied should one be making a war against another nation state.  Thus what I am speaking about is the activity of war between or among nation states.  It certainly may be the case that this is considered because the nation state is not doing what it might in order to constrain the evildoers that are on its territory or is complicit with them.  That activity is one different from attacking the criminals directly in order to prevent them from carrying out their crimes.

            What I am trying to get at is that even if the criminals are simply being shielded by a nation state unwilling to follow international norms and turn the criminals over to the proper authorities, there is a difference between rounding up the criminals and attacking the state that is shielding them.  I realize that in the real world, one might well have to attack a particular nation state in order to “get at” the criminals that it is shielding.   The central point is this.   When one does this, one has to take responsibility for what happens during and after the war and this responsibility is greater than when one is immediately threatened with war and one responds to that threat.  Keep in mind that time is the important variable here.  What should be considered in that time under jus ad bellum?

            The first thing that must be considered, developing the criterion of last resort, is what else might be done to solve this matter short of war.  I want to avoid the trap of thinking that there is always one more thing to do.  Yet even in avoiding that trap we have to face the fact that we have options, given the reality of more time, which would not be available in the usual situation of preemption.  There can be more attention to the other forms of power that are wielded by nation-states.  This is especially true when one is dealing with states as powerful as the United States of America.  In short, the standard of last resort is higher, not the same as or lower than in the usual situation of preemptive war or war of defense against attack.  As always, it would be a matter of judgment that one has reached that moment.[14]   

            Second, and this is a jus ad bellum consideration, one has to ask what one holds out as a proposed resolution to the current circumstances, a resolution that would justify going to war in the first place.  That proposed resolution will of course have to be tested and there will be disagreements about whether the resolution is either possible or desirable.  Yet that proposed resolution should be part of the pre-war discussion insofar as time permits. 

            Third, prior to the conflict, there has to be a great deal of attention to the immediate postwar situation as opposed to the long term political resolution.  One who is attacked and is defending oneself can be forgiven if little time or energy is spent in keeping order in the enemy’s state while the war continues.  So too in the case when one is coming to the aid of parties being unjustly attacked by others.  Such cannot be the case for preventive war.  The reality of time increases one’s responsibility for what occurs immediately after the war since the war is not due to some kind of necessity growing out of defense but grows out of a choice to act now so as to forestall having to act defensively later. 

            A good place to begin is with the responsibilities of occupying powers under the Geneva Convention.[15]  Again, the fundamental point is what is possible, given the constraints that one is operating under when one goes to war and one is in war.  The important point here is in a war of prevention, one cannot excuse one’s failure to meet one’s responsibilities as an occupying power because one did not have time to plan for what was going to happen after the war.  Wars of prevention are different precisely because they permit one to plan more extensively than wars undertaken to immediately defend against attacks.  Lack of time to prepare for the postwar situation is not an excuse in circumstances such as this.

            Note here that the matter of excuses also becomes important in another way.  In the usual scenario of going to war, one might be excused if one does not have the forces necessary for both fighting the war and keeping the peace while the war fighting continues.  One might well imagine that after the war, those forces that fought the war would turn to the task of rebuilding the order that has been destroyed or interrupted.  My claim here is that these excuses have less force in a war in which one has a choice about when and where one goes to war.  Why?

            Let us assume for the moment that in order to remove the future threat, one must overturn the present order in a country.  In the process of doing this, one must recognize that one of the burdens of war is the chaos that results in war and the chaos that often follows upon war.  This chaos falls particularly hard upon civilians who are caught up in the confusion of war. Recent news reports have made this clear to all of us once again, if we needed to be reminded.  War too often means that one order is in the process of being overturned and another order is not yet in place.  Again, it may be excusable that the new order to be established cannot yet be established when one is fighting a war of defense.  Such an excuse is not plausible when one had a choice about going to war in order to prevent a threat from taking form.  One has, and by now you should recognize this as a theme of this paper, one has time.  That time should be spent both planning for what should happen and making sure that the resources are in place so that the plans can be realized. 

            At a minimum, this planning and resource allocation should take two forms.  First, one has to restore order so that civilians are safe.  The usual functions of government, including some minimal protections of the law, must be taken up by the forces who began the preventive war. 

Second, there must be a planning for the restoration of economic and social life as soon as possible.  What I mean by this is that the usual structural circumstances of civilian life for this country should be returned to normal as rapidly as possible.  In particular, it is important to restore the necessities of life in a particular place.  Those features of chaos that lead to disease such as failing water and sewage systems and food distribution systems must be restored as soon as possible.  Note that the responsibility for this does not devolve upon civilians in the conquered country, but with the occupying power.  They are the ones who have destroyed whatever order that there was prior to the war and it is their responsibility to do what they can to return that order to those who are most harmed by its interruption.  To repeat the point above:  There are two ways one can fail in this task, first in not planning for it and secondly, in not providing the resources for it.  None of this excuses, incidentally, those among the enemy who would sabotage the structures of civilian life, either before, during, or after the war.  They are making war against their own people and their perfidy should be recognized for what it is.  Their moral wrongs should not, however, act as an excuse for failures on the part of those who initiated the preventive war, failures either in planning or in resource allocation.  Indeed, it would not be unreasonable to plan for acts of perfidy after war. 

Here a methodological skepticism is in order, the same type of skepticism that gives rise to preventive war in the first place.  Those who propose preventive war argue that the future will bring worse circumstances, and that these circumstances will threaten the being or well-being of the state.  That same skepticism needs to be applied to thinking about the post-war situation.  One cannot assume that things will go well after the war of prevention.  They may, but one cannot plan on it.

            But claiming that there are additional ad bellum constraints on the waging of preventive war does not capture the full moral responsibility of those who would undertake such wars.  Michael Schuck has argued that any just war needs to attend to three principles of jus post bellum.  In addition, Brian Orend has written about jus post bellum constraints from the Kantian perspective.  Michael Walzer recently has written about this as well.   I will use these thinkers to explore what would be required in a preventive war.[16] 

When Schuck wrote his paper, he was referring to any war that claimed to be justifiable and was not thinking of preventive war in particular.  I want to use the three principles given by Schuck as a starting point and will amend them for preventive war.[17]  The first two apply to any war according to Schuck.  It is the third requirement that is especially important for preventive war. 

            Schuck calls first for a principle of repentance.  What he means by this is that victors conduct themselves humbly.  What Schuck wishes to constrain are celebrations of victory that do not acknowledge the losses on both sides of a conflict.[18] What he finds abhorrent are celebrations at the “end” of conflict that trivialize war itself.  He uses the example of General Schwarzkopf parading in Disneyworld after the first Gulf War.  There are more recent examples that have occurred subsequent to the second Gulf War.[19] This principle is particularly important for preventive war because the war was waged because of a fear that something might come about and one acted in order to forestall it.  Given the uncertainty that pervades human affairs, especially relations between nations, humility is especially important.

            Schuck’s second principle calls for an honorable surrender.  Here he wishes to guard against forms of surrender that refuse to recognize the fundamental human rights of the vanquished.  Schuck had in mind the Versailles treaty following World War I.  We have since developed forms of surrender for persons identified as “terrorists” that assume that the laws of war do not apply and thus honorable surrender and what accompanies it in terms of treatment of the enemy cannot be assumed.[20]     

Schuck’s third principle is one to which I have already alluded.  He calls it the principle of restoration.  He has in mind not simply repairing the social infrastructure but eliminating the continuing scars of war from the place of war.  Of particular interest to Schuck are the presence of landmines throughout the world, which he reports kill 800 people a month and the presence of which inhibits the restoration of the use of the land upon which and sometimes over which the war has been fought.  In my own view, what would count as restoration would be dependent upon what was destroyed in the making of war and what was left behind as a result of war.  This is a place where one cannot necessarily plan everything in advance because one cannot know what will be required.  What can be planned is that one will have to plan and one has to have the resources in place for the planning and some realistic recognition of what might be required.  Two things are not permitted by this constraint.  First, it would not be permitted to proceed without any planning and resources to assist reconstruction.  Second, what would be impossible would be a situation in which resources were made available and for one reason or another, not used for the purposes of restoration.  Again, civilians would be bearing the burden of war here, a burden that it was not necessary to impose upon them for purposes of immediately defending one’s own nation.

            A simple example might help in understanding what I have in mind here.  If the attack on the enemy in a preventive war involves the destruction of electricity substations, so called dual use targets, then the attacking power must be prepared to repair them.  If this is not done, civilians will bear the brunt of war when there were no threats active from their nation.  The burden of reconstruction should fall upon the power that makes the war when the war is one of prevention.

                For Schuck, as for myself, discussions of jus post bellum are good ways into the discussion of motivations of those who go to war.  Displaying inappropriate sentiments after a war is a sign that one’s motivation for entering into war is itself suspect.  Acting appropriately after a war is a good test of whether other conditions for a justifiable war, conditions that should have been met prior to the entry into war, have in fact been met.

            Brian Orend makes the same general point about jus post bellum requirements.  Orend is concerned to insure that violators of international law be fairly tried by international tribunals, including violators from the state that attacks.  Further, he brings over some ad bellum and some in bello constraints to construct a significant list.  I would assume that the whole list of requirements would apply to any preventive war and that the most significant constraint would be right intention.[21]  Orend explicitly excludes revenge and requires symmetry in the treatment of war crimes by forces on either side.  Generally, Orend includes here fairness in the application of the relevant laws. 

            Walzer focuses on occupations after war and he argues that these can be judged somewhat independently of the justice of the war itself.  His basic argument is that all processes should be transparent and he is clear in arguing for democratic goals.  His general perspective is that one should not allow a return of those circumstances that gave rise to the reasons for war in the first place.[22]

            The careful reader of Schuck and Orend  will note that I have, if anything, made their requirements stricter in the circumstances of preventive war.  Such is fitting in wars that are not necessary in self-defense or in assisting those who are under attack.

IV.  What I have tried to show?

            My conclusions are rather modest.  If one judges that in some cases preventive wars are permissible, there are special moral requirements that grow out of the nature of war being preventive.  These include a higher standard of the criterion of last resort under the jus ad bellum as well as the issues surrounding jus post bellum.  The two most important moral considerations for any discussion of the criteria are time, which allows one to engage in far more planning than one might have in the “ordinary” circumstances of defensive war.  The second important matter is the moral consideration surrounding who is bearing the burden of the preventive war after the war is over.  My judgment is that it is the civilians of the attacked nation.  My judgment is that it is up to the attackers to plan to mitigate the effects of war and to bring full civilian life back as soon as possible. 

Finally, there is what I call a “methodological skepticism” which pervades this discussion of the responsibilities of preventive war.  Given that waging preventive war means taking a very bleak view of what might happen in the future that will lead to war, the same bleak view should be taken with the planning for the post-war situation.  In brief, one cannot assume that all will be well for civil and political life given the waging of this war.  Here, I simply ask those who would wage preventive war to be consistent. If they have a bleak view of the world with the enemy state fully functional, they should take a bleak view of the immediate circumstances after the fall of the enemy state and plan and act accordingly.  

Of course, I might be wrong.  That is to say, it may be the case that preventive war is itself never justifiable and thus what I have suggested is and remains only a thought experiment.


Postscript:  A Scenario

            Imagine a country, let us call it Transylvania, which has invested in nuclear energy and has a medium range missile program.  There is evidence that the new rulers of Transylvania are quite friendly with terrorist groups that seek to do the United States ill.  Further, there is evidence that this country is converting some of the nuclear energy capacity to the production of enriched uranium consistent with the requirements of weapons of mass destruction.  Further, there is an interest on the part of the military of Transylvania, an interest well-documented, in suitcase size nuclear weapons.

            Let us further assume that it is decided that this threat to the United States cannot continue to be allowed to develop and that it is useful to prepare for war.  What needs to be done?

            If I am right, two things in general.  First, we need to marshal whatever resources we have to convince Transylvania that it should change the course of its development.  We can of course be doing this while we are planning for war. 

            Secondly, and just as important, we need to be planning for what is going to happen after the war in Transylvania.  That is a political as well as a humanitarian relief matter.  We need to put forward a political scenario and we need to put in place those things that will make it possible for human life to flourish in Translyvania.  If we plan an attack on its electrical distribution system; we need to plan to restore that system as soon as possible after the war.  Water purification, sewage systems, and medical care systems depend upon functioning electrical grids.  The civilians in Transylvania, some of whom are from a persecuted minority, should not be asked to continue to bear important burdens once the war is completed. 

            There should be one methodological proposal that is in place.  Just as we are worried and must take a worst case scenario approach to the developing situation in Transylvania before the war, we must take the same approach to the post war situation.  That is, we cannot assume that things will go well and have to plan for things going badly.  The same attitude that pervades our assumptions about the pre war-situation has to be carried forward to the post war situation.  Note that if we do not do this, we are potentially increasing the burdens civilians will suffer as a result of war.  The more we see the civilians of Transylvania oppressed by the political regime of Transylvania, the more we need to take account of the situation to bring about repair as quickly as possible. 

            Now if I am correct in the scenario I have proposed, it should be clear that the costs of waging preventive war are quite high.  They may not be as high in terms of risk; that after all, is what preventive war is about.  They may well be higher in terms of post war reconstruction costs.  But then we should not be surprised by this.  War is an expensive undertaking and it is likely to remain so.  We should not, however, be shifting the burden of war, especially preventive war, to the civilians of the state that we attack. 



[1]   Those who are advantaged by this, I would argue, are those who would, either accidentally or purposefully, keep us unclear about the kind(s) of warfare the United States is willing to wage. 

[2]   Michael Walzer, Just and Unjust Wars, (3rd edition), (New York: Basic Books), 2000, p. 74, quoting  D. W. Bowett, Self-Defense in International Law, p. 50.

[3]  Michael Walzer, op. cit., pp. 74-85.

[4]    The statement is an echo of the sense of mission which has marked American exceptionalism in the past and the question must be asked at the beginning of the inquiry, “Who gave the United States this mission”? This is a matter that needs more attention than I can give it here.

[5]   The National Security Strategy of the United States of America, (September, 2002) p. 6., (viewed 12/12/04)

[6]   Indeed, the claim implicitly has been contested by George Kennan.  Cf., Jane Meyer, “A Doctrine Passes,” The New Yorker, Oct. 14 and 21, 2003.  Available at  (Viewed 12/13/04)

[7]   National Security Strategy, op. cit., p. 15.


[8]   Not unimportantly, all the “knowledge” we might have of their capabilities could be no more than an estimate on our part.

[9]    National Security Strategy, Op. cit.


[10]   This entire discussion begs a very important point, which is, what exactly is a terrorist?  It appears from this document that only non-state actors can be terrorists and that, in addition, groups that target civilians are terrorists.  Are both conditions necessary conditions or is only one sufficient?  We are not told.  The document leaves aside the important possibility of state sponsored and directed terrorism which might have a variety of aims.  For more on this issue, cf. Wes Avram’s essay, “Getting Past the Preamble: One Reading of The Strategy,” in Anxious About Empire, (Grand Rapids, MI: Brazos Press) 2004, pp 27-42 .  For a more nuanced discussion of terrorism, cf. Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror, (Princeton, NJ: Princeton University Press) 2004, esp. pp. 82ff.  Ignatieff describes six different types of terrorism and suggests different responses to each. 

[11]   The comments above do not consider the other difficulty with the current discourse about preemptive or preventive war when it is put in the context of a “war on terror.”  The idea of a war on terror is puzzling.  It reminds one of a war on evil.  Potentially it is never ending since presumably, terrorists will always be with us.  The open ended nature of the commitment to the “war on terror” needs more attention than it can be given here.  Suffice it to say that “war” is a limited and constrained human activity, that,  in principle has an end.  The “war on terror” does not appear to be so constrained.  To put this another way, how will we know we have won the war on terror?

[12]   The medieval understanding of justifiable war was not as constrained in my judgment.  One could make war in order to right wrongs that were completed, that were not in the process of being done.  Jus ad bellum in the modern context is more constrained.

[13]   It is in this context, I suggest, that we should take up the discussion of the matter of spreading freedom and democracy as these goals are outlined in the document on National Security Strategy.  It is not just that the threats are to be eliminated; a new order is to be introduced. 

[14]   This does leave open a number of questions I leave to others to resolve.  I will point to two here.  First, it would appear that the greater the alternative forms of power at your disposal, the greater is your responsibility to use them before undertaking war.  Thus a stronger country would have to do more before waging a preventive war than a country without as many kinds of power at its disposal.  Second pointing to the fact that a judgment is required only ups the discussion of who has the authority to make such a judgment and what criteria they might use.  I will suggest a negative constraint here.  Any allocation of authority cannot be simply a doctrine of executive discretion.  Just war thinkers need to reflect on the limits of the authority to make war and on the framework of responsibility that should accompany this part of jus ad bellum today.

[15]    For some of the relevant texts, cf., W. Michael Reisman and Chris T. Antoniou, The Laws of War: A comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict, (New York: Vintage Books) 1994.

[16]   Michael Schuck, “When the Shooting Stops: Missing Elements in Just War Theory,” The Christian Century, 111:982-983, Oct. 26, 1994; Brian Orend, War and International Justice: A Kantian Perspective, (Waterloo, Ontario, Canada: Wilfrid Laurier University Press) 2000.  Orend also takes this up in his article on “War” in the Stanford Encyclopedia of Philosophy.  This is available online at (Viewed 12/14/04)  Michael Walzer takes this topic  up in a number of places in his Arguing About War, (New Haven: Yale) 2004. 

[17]   One thing that is helpful about using Schuck and Orend is that both of them use the first Gulf War as their significant example.

[18]   I would make two points in addition here.  First, there is a difference between acting humbly and repenting for wrongdoing.  I would concede that they are often intertwined but not always.  In an unpublished paper I take up the issue of repentance after war.  The second point is that it is impossible to acknowledge loss if one does not “count the cost” of war or one counts the cost surreptitiously.  In any event, the current “practice” of the U.S. military not to count “enemy” losses or the deaths of civilians who are not U.S. citizens would be problematic under Schuck’s (and my) understanding of repentance.  Further, it may be asked how one can refuse to count the dead and claim that one has made any attempt to “count the cost” of a particular war.

[19]   Contrast, for example, the setting of “Mission Accomplished” with the ancient Roman victory march.  The Roman general was accompanied by a slave whose task it was to state, “Remember man, thou are mortal.” (Respice post tem, hominem te esse memento)  Pliny the Elder, Natural History 28:39.  I owe this reference to my colleague Howard Marblestone.

[20]     This is not an argument for the moral equality of terrorists and soldiers captured during a war.  It is an attempt to point to the humanity of the captives and the development of procedures that recognize that humanity.   Torture is not such a procedure.  Nor is shipping captives to states where torture is practiced nor is the practice of not registering persons with the Red Cross who have been captured. 

[21]     Orend,  War and International Justice, op. cit., pp. 217-239.

[22]   Walzer, Arguing About War, op. cit. pp. 162-68.