Preemption: late 16th century: the act or right of claiming or purchasing before in preference to others: L prae + emere t

What’s in a Word?

Getting Clear on What We Mean by “Preemption”

by Lieutenant Colonel John Mark Mattox, United States European Command

Introduction

One of the great traditions of American journalism is to latch on to a concept that has not found its way into public discourse for some time—often a single word or phrase—and then to talk about it as if it were so familiar a concept as to require no explanation. Some members of the press love to banter around these words as if they knew exactly what they meant. Faithful listeners to or readers of these pundits, fearful that they may be the only ones dull enough not to see the emperor’s magical clothes, nod in ready assent at the footloose and fancy free use of these words. One such word now making the rounds is, of course, “preemption.”

The prime task of philosophy is not to solve problems; it seldom does. But it is a very useful vehicle for identifying problems and for clarifying the meaning of concepts. I propose that we step back for a moment and be sure we are clear about what we mean and do not mean by “preemption.” Ensuring that we enjoy this kind of clarity will, I suggest, go a long way toward identifying concrete cases in which preemptive military action it is permissible and those in which it is not.

What preemption is not

First, let us consider what preemption is not. Many discussions of the meaning of “preemption” focus on the distinction between a “preemptive act” and a “preventive war.” This is, of course, an important distinction, and one that we should not fail to make. These terms are not used consistently in popular literature, and so let us make the following distinction: A preventive war is one that is initiated before any immediate threat of hostilities with an eye toward overpowering a potential opponent so that the opponent cannot strike. A pre-emptive action, on the other hand, is one that is initiated in response to an adversary’s having set in motion the chain of events that is reasonably judged to lead inevitably to a yet unconsummated attack.[1] Thus, unless one acts in a way that “actually reduces or eliminates the effect” [2] of an imminent attack by a potential opponent, the attack cannot be called “preemptive.”

We also should note that “preemption” can be used in the context of either jus ad bellum or jus in bello. However, these uses involve another distinction, which we should take care to observe: What we might call a jus ad bellum preemptive attack should not be confused with what we might call a jus in bello preemptive attack. The former involves an attack undertaken not in response to armed hostilities already begun. The latter, while common in certain military operational contexts, is not the usage contemplated by most current public discourse. A jus in bello preemptive attack involves “beating the enemy to the draw,” as it were, in a way that prevents him from exploiting advantages gained in an already consummated aggressive action. Thus, actions taken within the context of an ongoing, shooting war may in fact be, preemptive, but as long as they are not actions undertaken treacherously (such as establishing a 24-hour truce with the undisclosed intention of mounting a surprise attack 12 hours into the truce), they are no more morally problematic than any other military operation that capitalizes on the element of surprise. Thus, to say, for example, that the Allied nations of World War II acted preemptively in jus in bello terms when they invaded Normandy seems to involve a stretch of the concept beyond useful semantic limits. Seizing the initiative in a contest already underway is not a preemptive act in the sense usually intended. Thus, unless some special context is specified, most moral-philosophical discussions of preemption assume the concept to be much more closely tied to jus ad bellum than to jus in bello.

Etymology: What Preemption is

Let us now turn our attention to what preemption is by examining the etymology of the word itself. “Why should we look at etymology?” one might ask. “After all, the meanings of words change over time, and the way a word was used decades or centuries ago may entail concepts that differ radically from what is meant when it is used today.” Of course, this is a point of which we should not lose sight. Nevertheless, it is no accident that the historical meanings of words generally have important conceptual links with their current uses. The fact that we speak of “preemptive” war rather than, for example, “presumptive” war or “predestinated” war is precisely because of the historical meaning of the word “preemption.” And so, as any hairdresser would say, if you want to know what you can infer from the color of the visible strands of hair, examine the roots.

As it turns out, preemption is not one of those words that take us back into the deep, dark recesses of English language history; it is a fairly recent addition to the English lexicon, going only back to about the late 16th or early 17th century. As applied to warfare, “preemption” is a very late comer; the first attestation of the word in this sense does not occur until the middle of the 20th century. Historically, preemption had nothing to do with war per se. Its longest running meaning has to do with the acquisition of property. The word itself comes from the middle Latin praeemptus, the past participle of prae (meaning “before”) and emere (meaning “to buy or purchase”). Thus, praeemere, or preempt, originally referred to “buying beforehand,”[3] or to the act or right of claiming or purchasing something before it was offered for purchase to others.[4] Thus, we find in the early 17th century (1610) an attestation of the word stating that “Her late Majestie intended to have retayned the prerogative of pre-emption,”[5] meaning “the right of buying provisions at an appraised valuation”[6] for the royal household before other people were given the option to purchase those provisions. By the mid 19th century (1857), we find the American press reporting that “The laws of the United States give the right to any citizen who does not own three hundred and twenty acres of land in any State of the Union . . . to preempt one hundred and sixty acres, by fulfilling the detailed requirements of the [law].”[7] We also are warned (1885) that “an unscrupulous ‘colonist’ can often preempt several places at the same time.”[8] The general thrust of the meaning was to “score” in economic terms before someone else did—to gain an advantage, or to get ahead. This literal usage became a metaphor by the early 20th century so that one might go to a park with the intent of having a picnic and find (1913) that “Many [tables and benches] . . . were already pre-empted by family parties.”[9] Also in the early 20th century, the term begins to be applied (1914) to bids made in the game of bridge, suggesting actions taken to gain personal advantage by thwarting a card play one expected an opponent to make.[10]

As we consider what some semanticists would call the “general” or “invariant” meaning of the word “preemption”—the meaning which seems to apply in all usages, irrespective of context, the visual image that begins to emerge is something like the following: Imagine a throng of eager and determined shoppers, massed at the doors of Macy’s Department Store on the day after Thanksgiving. They have read the sale papers, know exactly what they want, have a fair idea of the quantities likely to be available, may even have plotted mentally the most strategically advantageous route through the store to the relevant counter, and are willing to push, shove, elbow, or trample fellow shoppers to obtain the prize—not because they desire harm to come to fellow shoppers per se (although that may happen in the course of pursuing their aim), but because they are intent upon “buying before” anyone else does. In other words, they are willing to act preemptively as required to obtain the objective.

It is not until the mid 20th century that the word actually comes to designate in American English usage the military concept with which we are familiar: “a measure taken against something possible, anticipated or feared; preventive; deterrent; such as a preemptive strike against the enemy.”[11] Thus, it could be said (1959) that “The American Strategic Air Command . . . might be prevented by a Russian preemptive strike from ever getting the Sword [sic] out of its scabbard.”[12] By the mid sixties (1966), military reference manuals begin to include definitions for preemptive strikes: an “armed attack motivated by the conviction that an enemy attack is under way or is irreversibly imminent.”[13] As we recall the image of our determined, post-Thanksgiving Day shoppers at Macy’s, we realize that they, too, are under irreversibly imminent risk of having their treasure snatched right out from under them by some other equally determined, but in their estimations, less worthy, shopper. Hence, they feel they are left with no choice but to act preemptively—to “buy beforehand.” The thought that they must act now or risk being thwarted is no distant possibility in their minds. Indeed, their attack launched on specific display counters at Macy’s is (1971) “launched in the belief that an enemy attack has already entered the executive phase” [witness the other “enemy” shoppers massed around the doors] and that the enemy’s decision to strike “has already been made.”[14] By 1976, one military author could state, expecting to be clearly understood, that “There was no doubt at all about the most effective [Cold War] deterrent—it was the ‘Polaris’ submarine; which, because it was virtually undetectable, was a genuine second-strike weapon which robbed the pre-emptive attack of all its former attraction.”[15]

Essential Elements of Preemption

Against this background, we might attempt to identify the necessary and sufficient elements of a preemptive military act.

First, preemptive acts are always intentional and never accidental. If one happens unwittingly to achieve advantage over an opponent by acting before the opponent acts, the advantage, no matter how significant, cannot be said to be the result of a preemptive act. Thus, while preemption may involve an element of immediate surprise to an opponent, that surprise must be understood within a larger context that suggests that, whether a preemptive action is undertaken or not, action by the opponent was possible, if not likely.

Second, in order for an act to be preemptive, it must be calculated, at the very minimum, to negate whatever advantage might accrue to an opponent. Circumstantially, it might additionally involve obtaining positive advantage over one’s opponent, but not always. For example, our Macy’s shoppers’ motivation for preemptive action might merely be to negate the efforts of the other shoppers—to obtain the satisfaction of being the first to purchase the item at issue. However, the shopper might additionally be motivated by what he or she regards as a positive advantage, namely, the thought of being “the only kid on the block” to have the item, thereby becoming the Jones with whom all others must now keep up. Likewise, in political-military terms, in order for an act to be preemptive, it must be undertaken with the intent at least to thwart a competitor, if not gain outright advantage over him.

Third, preemptive acts always occur in response to conditions that one can rightfully regard as threatening. For example, if I:

· happen to be the only shopper standing at the door of Macy’s on the day after Thanksgiving,

· run into the store the moment the door opens to buy a specific item that I saw advertised in the Thanksgiving Day newspaper,

· find on the display counter a thousand copies of the item I want, and

· see that no one else is buying the item,

I may feel very happy about my purchase. However, although I may have intended to act preemptively, I have not, in reality, preempted anything. The fact that other shoppers might eventually buy the remaining 999 copies is irrelevant. In order for my action to be preemptive, I must actually have beaten someone else to the purchase.

Fourth, the idea of preemption as we have conceived it can be applied to all instruments of national power: diplomatic, economic, informational, or military. Of course, one could stipulate that preemption, as it pertains to international relations, can only refer to military acts. However, to do so seems a bit arbitrary and without logical warrant. Why, for example, could it not be that a nation might undertake an act of diplomatic preemption (negotiations, etc.) in order to forestall a crucial economic decision by a competitor, or a preemptive informational campaign in order to discredit another nation’s diplomatic efforts, or a preemptive economic move to render unlikely or impossible another’s military expansion?

An Invitation to Equivocate

It is on this latter point that our quest toward clarity becomes particularly dicey, because it raises the question, “What characteristic of an ongoing chain of events renders one event in that chain uniquely identifiable as preemptive?” Consider the case in which one argues that a military act not preceded by armed conflict is not preemptive, but merely a response to a previous act of, say, economic aggression. A specific example of just such a case might be World War II from the perspective of Imperial Japan. Although, from the U.S. perspective, the Japanese attack on Pearl Harbor was the quintessential case of preemption,[16] the Japanese argued, in effect, that the attack was merely a military response to precursor acts of economic and diplomatic preemption by the United States that had necessitated Japan’s formation of the Greater East-Asia Co-Prosperity Sphere.[17] Now, I can imagine that a suggestion like this would be enough to make the hair bristle on the neck of a U.S. veteran from World War II. I confess that I also am uncomfortable with the Imperial Japanese argument; but let’s continue.

In a similar vein, one might argue, from the U.S. perspective, that the war in Afghanistan was not preemptive, but rather, a response to the events of 11 September 2001. Likewise, one might adopt the U.S. perspective—not shared by many nations—and argue that Operation IRAQI FREEDOM was not preemptive, but rather, a follow-on military action stemming from the 1991 Gulf War from which:

· the United States’ sudden, unilateral decision to stop fighting left a range of unsettled issues,

· was followed by twelve years of broken promises by Saddam Hussein,

· witnessed regular Iraqi incursions into two no-fly zones, and

· culminated with Hussein’s stubborn unwillingness to reveal, to international satisfaction, the actual status of his weapons of mass destruction program.

On this score, Operation IRAQI FREEDOM might be called the end of a 12-year cease fire, or the beginning of a retributive war, or any number of other things that constitute natural follow-on actions to precursor provocations—but not necessarily a preemptive war. Whether this stance can withstand scrutiny from the perspective of history is difficult to say. In any case, the example illustrates how difficult it can be to identify exactly where preemption begins.

A Moral Evaluation of Preemption

Since one side or the other always may be expected to argue, on one or another ground, that “the other side started it,” how does one identify which cases truly involve preemption and which do not? It seems to me that the morally problematic aspects of preemption come into sharpest focus when assessed on the basis of intentionality—when the allegedly preemptive act involves the intention to negate the actions of other human agents, if not the intention to gain outright advantage over them. This point is sometimes obscured by the fact that most discussions of preemption involve states (or persons acting on behalf of states) rather than persons acting in their individual capacities as autonomous moral agents. To take a current example, the United States has argued that the emergence of the “new kind of war”[18] the nation currently finds itself fighting might mean that, at times, preemptive military action could be the nation’s only viable security alternative. The U.S. National Security Strategy even goes so far as to argue that the option to act preemptively is really nothing new: “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.”[19]

It is easy to regard with moral disapprobation the shopper at Macy’s who shoves and then tramples fellow shoppers in order to reach the sales table first. However, for some reason, it seems harder to identify the key moral issues when international conflicts are involved, with their attendant displays of bravado and high emotion. Nevertheless, let us here observe that, prima facie at least, the kind of motivations required to act preemptively on any level run counter to the kind of motivations embraced by most ethical systems. Morality does not champion the cause of individuals or nations intent on “buying before” when the buying involves thwarting others merely for personal gain. Quite the contrary: Morality is about cooperation, patience, longsuffering, and seeking to promote the flourishing of others.

In all fairness, we should note that preemptive action is not an inherently evil notion, but like so many other things, it is a notion which, circumstantially, can be used for evil purposes. Preemption—“buying before,” can be something which many of us would agree to be a good thing (like Thomas Jefferson’s making the Louisiana Purchase before some other European power did) or it can be something that many of us would agree to be bad (like Martha Stewart’s insider trading). But what makes one preemptive act ostensibly good and the other ostensibly bad? If the moral status of preemption does, in fact, hinge upon intentionality, then I submit that the difference between morally permissible and impermissible instances of preemption lies in what Kant calls a “good will”—that thing without which “nothing can possibly be conceived in the world, or even out of it, which can be called good, without qualification.”[20] If this is correct, then we can conduct a moral evaluation by (1) appealing to the just war tradition to list those things that can be called proper—or at least justifiable—motivations for applying the bluntest instrument of national power and then (2) considering whether the justifications brought to bear in specific instances truly are motivated by a good will.

A utilitarian—or any consequentialist—would shrug his or her shoulders and say that as long as things turn out alright, the question of whether a preemptive action was part of the process in which a happy end result is achieved is moot. However, it may be that no simple consequentialist test for moral sufficiency can sufficiently constrain the moral decision-making process that should govern the decision to act or not act preemptively. Granted, some are reluctant to appeal to intentionality as a metric because its empirical verification often is problematic. Nevertheless, let us not forget that, every day, courts of law render weighty decisions based on the inference of intentionality. The fact that rendering a decision is a hard task does not mean, in and of itself, that we should shrink from the task.

Conclusion

In sum, we need to be very clear as to what we mean when we speak of preemption. All too often, semantic carelessness invites moral equivocation; when one does not say what one means, one may not mean what one says. As a result, some things labeled as preemption are not; some of them may be natural consequences, punitive actions, defensive or retaliatory actions—all of which must be evaluated on their individual merits or demerits without confusing them with preemption. On the other hand, some seek to justify preemptive acts by shrouding them in wrong-headed justifications. When meanings get muddled, justifications for action tend to become muddled too. On the level of abstraction, I believe that we, as students of moral philosophy, should be concerned about the way the word “preemption” gets tossed around. On the level of practicalities, I believe we should be concerned about the apparent willingness some to ignore the weighty moral baggage that accompanies any political decision to act preemptively. When does preemption become wrong? It becomes wrong in principle when it is wrongly motivated. It becomes wrong in practice when it is used to initiate wrongly motivated action. This would suggest that we must reject the arithmetic formula that identification of a clear and present danger equals justification to act preemptively. For, no matter how clear and present some might suppose a danger to be, the only morally satisfactory justification to “buy beforehand” can be found only in a good will—and such justifications, though not non-existent, are few.

The suggestion that morally justifiable preemptive acts are rooted in an intentionality born of a good will is no trivial point. Especially in the face of the global war on terrorism, Americans need to be exporters of a good will. As we undertake in so many places the task of nation building, the greatest gift this nation can bestow may well be—not the water tower, or the school room or repairs to the sewage system, as important as these things are in the workaday world—but rather, a good will. Why? Because as individuals, our will is all that we really have that is uniquely and permanently ours. When we speak of the “national will” of a democratic republic, hopefully we mean collective expression of individual wills. The desire to be people of good will and a nation of good will necessarily will lead us, among other things, to be very deliberate in our use of the word “preemption” and in the way in which we justify ourselves to invoke the concept. That is important, because in our present political-military environment, there may be no concept concerning which it is more important to avoid self-deception born of equivocation.

NOTES