By Flynt Leverett and Hillary Mann Leverett
December 28, 2011
Throughout our work on U.S. policy toward the Islamic Republic of Iran, one of the more fundamental themes is the corrosive impact that America’s post-Cold War quest for unadulterated hegemony in the Middle East has had on the strategic calculations of successive U.S. administrations (Democratic and Republican) and, by extension, on U.S. standing and influence in this vitally important region. Instead of dealing soberly and effectively with the Middle East’s complex political and security dynamics and defending its legitimate interests there, the United States has, for the past two decades, tried to coerce political outcomes across the region, with the goal of bringing it under a U.S.-led, highly militarized political and security “umbrella.” Of course, the United States was certainly not above trying to do this sort of thing before the end of the Cold War (witness the CIA’s 1953 coup in Iran). But the Cold War definitely imposed limits on American initiative in the Middle East that effectively disappeared 20 years ago.
From this perspective, the big problem with the Islamic Republic is not that it is irrevocably and aggressively anti-American (it is not). The problem is that the Islamic Republic refuses, as a matter of both principle and strategic interest, to accept and endorse American dominance in the region.
By our reckoning, the evidence of the damage that America’s determination to assert hegemonic dominance over the political and strategic orientation of key states in the region has done to its strategic position, in the Middle East and globally, is already overwhelming. And yet bipartisan attachment to the illusory and demonstrably counter-productive goal of Middle Eastern hegemony persists; currently, its most salient manifestation is the rising crescendo of voices advocating U.S. military action—we will call it what it would be, an illegitimate U.S. attack—against the Islamic Republic, ostensibly over its nuclear activities.
One of the more prominent current specimens of this sort of argument is an article in the forthcoming, January/February 2012 issue of Foreign Affairs; authored by the Council on Foreign Relations’ Matthew Kroenig, the article is entitled, “Time to Attack Iran: Why a Strike Is the Least Bad Option”, see here. Here is the thrust of Kroenig’s argument:
“[S]keptics of military action fail to appreciate the true danger that a nuclear-armed Iran would pose to U.S. interests in the Middle East and beyond. And their grim forecasts assume that the cure would be worse than the disease—that is, that the consequences of a U.S. assault on Iran would be as bad as or worse than those of Iran achieving its nuclear ambitions. But that is a faulty assumption. The truth is that a military strike intended to destroy Iran’s nuclear program, if managed carefully, could spare the region and the world a very real threat and dramatically improve the long-term national security of the United States.”
Needless to say, as thoroughgoing “skeptics of military action”, we are not persuaded by Kroenig’s piece. His article has already been critically dissected on strategic and military grounds by Steve Walt, see here, in a blog post delightfully entitled “The Worst Case for War With Iran”. As Steve points out, “There is a simple and time-honored formula for making the case for war, especially preventive war”, which Kroenig’s article exemplifies:
“First, you portray the supposed threat as dire and growing, and then try to convince people that if we don’t act now, horrible things will happen down the road. (Remember Condi Rice’s infamous warnings about Saddam’s ‘mushroom cloud’?) All this step requires is a bit of imagination and a willingness to assume the worst. Second, you have to persuade readers that the costs and risks of going to war aren’t that great. If you want to sound sophisticated and balanced, you acknowledge that there are counterarguments and risks involved. But then you do your best to shoot down the objections and emphasize all the ways that those risks can be minimized. In short, in Step 1 you adopt a relentlessly gloomy view of the consequences of inaction; in Step 2 you switch to bulletproof optimism about how the war will play out.”
Steve takes it from there, in bracing fashion. We largely agree with his more specific criticisms of Kroenig’s article, although we take issue with his drive-by assertion that some of the Iranians who would be victims of a U.S. attack on their country “despise the clerical regime (and with good reason)”. This uncritical repetition of a seemingly de rigeur acknowledgement that the Islamic Republic’s legitimacy is dubious actually contributes to the case for a U.S. attack on the Islamic Republic, which we do not believe Steve wants to do. Paul Pillar, see here, has also offered an arrestingly sharp critique of Kroenig’s article, describing it as “so far removed from anything resembling careful analysis that one would hardly know where to start in inventorying its flaws”. Paul then performs outstandingly in doing precisely that—inventorying the article’s myriad flaws.
With Steve and Paul’s pieces on the table, we will not devote much attention to reviewing Kroenig’s article ourselves, save to highlight one of its dimensions that is virtually omnipresent in current “bomb Iran” discourse, but does not get discussed nearly as much as it should. This element is noted in passing by Paul, in his critique, when he raises “a further disturbing thought, or rather a question: how did mainstream discourse within the American foreign policy establishment come to include proposals to launch a war of aggression?” Answering Paul’s question takes us back to our opening point about hegemony and the enormous damage that its pursuit has imposed on American foreign policy, especially in the Middle East.
Just consider what Kroenig himself writes regarding the real motive for a prospective U.S. attack on Iran: “a nuclear-armed Iran would immediately limit U.S. freedom of action in the Middle East.” Let’s translate that into more concrete terms: in the view of many advocates of U.S. aggression against the Islamic Republic, a nuclear Iran might raise anxiety levels in Washington the next time a U.S. administration plans to invade another Middle Eastern country in a quixotic effort to install a secular liberal (and pro-U.S.) political order that its people do not want and, ultimately, will not accept (see Lebanon, post-Saddam Iraq, and Egypt on this point, for starters). Kroenig and others like him argue that, in order to keep those anxiety levels at manageable levels in the future, the United States needs to attack Iran now.
Now that is a hegemonic program, if ever there were one. It’s not about American security or the defense of real interests. It’s about the preservation of imperial prerogatives in the Middle East—prerogatives whose reflexive and persistent exercise actually diminishes American security and makes it harder for the United States to assure its tangible, material interests in the region.
In this regard, we were powerfully struck by, and want to discuss here, a recent article authored by John Yoo. Yoo, currently a University of California law professor, is one of the more striking figures to emerge from the George W. Bush Administration’s assault, in the name of prosecuting its self-proclaimed “global war on terror”, on the U.S. Constitution and American adherence to international law. Perhaps most notoriously, it was Yoo who, as a member of the Justice Department’s Office of Legal Counsel, authored the so-called “torture memo” in August 2002; this document set the bar for what constitutes torture so high that U.S. government agencies could get away with a lot of stuff that most of the rest of the world (including some brave lawyers serving in the U.S. military) thought was torture.
Yoo has now turned his legal acumen and moral judgment to assessing the optimal American posture toward the Islamic Republic of Iran. On this subject, National Review’s year-end issue features a piece by him, arguing that—as its title proclaims—“Now is the time to make the case for military action against Iran”; see here. It opens as follows:
“Our political calendar and one of our nation’s greatest threats have synchronized. In the upcoming year, the American people will render their judgment on Barack Obama’s presidency. Meanwhile, if the International Atomic Energy Agency’s November report is accurate, Iran will soon join the ranks of the world’s nuclear powers. Because of the Obama administration’s reluctance to confront this looming threat, others—such as the Republican presidential candidates—must begin preparing the case for a military strike to destroy Iran’s nuclear program.”
In Yoo’s assessment, President Obama’s “reluctance” to confront the Iranian nuclear “threat” has “left the public uninformed about the nature and possible consequences of military action, which must be serious and sustained enough to destroy complex, protected, and dispersed facilities”, for “pinpoint bombing of a single facility will not end Iran’s nuclear program.” He “has also failed to explain the heavy costs of containment, which would involve a constant, significant conventional and nuclear military presence on Iran’s perimeter.” (That strikes us as, more or less, the status quo.) Moreover, “Obama has compounded this political negligence by failing to build the legal case for attacking Iran”, instead tethering “American national security to the dictates of the United Nations.”
On this latter point, Yoo—who lists international law as one of his academic and professional specialties—accurately lays out the current state of international law regarding the use of force and the UN Security Council’s role in international decision-making on this highly consequential matter:
“The UN Charter guarantees the ‘territorial integrity’ and ‘political independence’ of each member nation, and prohibits the use of force except in self-defense, which many scholars and international officials interpret to mean that force is prohibited except when an invader has attacked across a border or is about to do so. It does provide an exception for war to prevent threats to international peace and security, but only if approved by the Security Council…Not surprisingly, UN authorizations to use force are rare.”
Nothing objectionable in this summary, as far as we can see. And by this standard, a U.S. attack on Iran would be blatantly illegal—a point that Steve Walt makes well, in his assessment of Kroenig’s article:
“[L]et’s by crystal clear about what Kroenig is advocating here. He is openly calling for preventive war against Iran, even though the United States has no authorization from the U.N. Security Council, it is not clear that Iran is actively developing nuclear weapons, and Iran has not attacked us or any of our allies—ever. He is therefore openly calling for his country to violate international law. He is calmly advocating a course of action that will inevitably kill a significant number of people, including civilians…
Kroenig tries to allay this concern by saying that the main victims of a U.S. attack would be the ‘military personnel, engineers, scientists, and technicians’ working at Iran’s nuclear facilities. But even if we assume for the moment that this is true, would he consider Iran justified if it followed a similar course of action, to the limited extent that it could?” Suppose a bright young analyst working for Iran’s Revolutionary Guards read the latest issue of Foreign Affairs and concluded that there were well-connected people at American universities and in the Department of Defense who were actively planning and advocating war against Iran. Suppose he further concluded that if these plans are allowed to come to fruition, it would pose a grave danger to the Islamic Republic. Iran doesn’t have a sophisticated air force or drones capable of attacking the United States, so this bright young analyst recommends that the Revolutionary Guards organize a covert action team to attack the people who were planning and advocating this war, and to do whatever else they could to sabotage the forces that the United States might use to conduct such an attack. He advises his superiors that appropriate measures be taken to minimize the loss of innocent life and that the attack should focus only on the ‘military and civilian personnel’ who were working directly on planning or advocating war with Iran. From Iran’s perspective, this response would be a ‘preventive strike’ designed to forestall an attack from the United States. Does Kroenig think a purely preventive measure of this kind on Iran’s part would be acceptable behavior? And if he doesn’t then why does he think it’s perfectly OK for us to do far more? ”
Aptly put—and, from John Yoo’s description of the current state of international law regarding the use of force, one would think that Steve, though not a lawyer himself, is on impeccable legal footing. But Yoo then provides an answer to Steve’s question as to how one could manage to think that “it’s perfectly OK” for the United States to act illegally.
More specifically, Yoo argues that the United States is entitled to ignore the arrangement he succinctly described—the Security Council and all the rest—on the grounds that it “lacks political legitimacy” and “is contrary to both American national interests and global welfare because it subjects any intervention, no matter how justified or beneficial, to the approval of authoritarian nations.” In other words, America need not consider itself bound by international legal mechanisms that it played a central role in creating because it is a global hegemon:
“The United States has assumed the role, once held by Great Britain, of guaranteeing free trade and economic development, spreading liberal values, and maintaining international security. An attack on Iranian nuclear facilities, though it would impose costs in human lives and political turmoil, would serve these interests and forestall the spread of conflict and terror. The Republican presidential candidates should begin preparing the case now for this difficult but unavoidable challenge.”
And just in case the next (presumably Republican) president should harbor some residual attachment to the quaint idea that the United States might want to get its wars legitimated by the Security Council, Yoo argues that he should “make a case much like the one that the Bush administration made regarding Iraq. It can argue that destroying Iran’s nuclear weapons is a combination of self-defense and protecting international security” (sic).
Frankly, we are hard put to think of anyone other than on-duty British officials, a few other subservient Europeans, and Israel who would be willing, in public, to hold up the George W. Bush Administration’s legal justification for its illegal invasion of Iraq as a model for future U.S. decisions to initiate otherwise wholly illegitimate wars in the Middle East. But that is exactly what John Yoo has done. And he could end up with a position of considerable importance in the next Republican administration.
We note that John Yoo earned his law degree at Yale. During the 1950s and 1960s, Yale Law School was the locus for what came to be described as the “New Haven School” of international law. Closely associated with long-time Yale law professor Myres McDougal, the New Haven School disdained “positivist” conceptions of international law as a body of rules defined by the consent of sovereign states, which then has some standing apart from individual states’ whims as a guide for and constraint on states’ decision-making and actions. For McDougall and his associates, working in a Cold War context, such a conception of international law might prove unacceptably limiting on the United States.
So, they came up with an alternative: international law, in their version, aims to promote human dignity, by encouraging the development of free, democratic society. Therefore, what matters in determining the legality of any particular international action is not its compatibility with some body of rules that “evil” states as well as “good” states (like the United States) have some say in; what matters are the “values” motivating the action in the first place. (Yes, one could get an endowed chair at one of America’s most prestigious law schools writing this kind of stuff.) And who specifies these values? Those powerful states (like America) that have some capacity for independent international action.
This is, of course, a recipe for the United States doing whatever it wants to and can get away with, without being bothered by trifles like internationally-agreed (including by the United States) rules and norms. Though originally defined in a Cold War context, this perverted notion of international law has gotten a new lease on life in the post-Cold War era, in an America “liberated” from Cold War constraints to intensify its pursuit of hegemonic standing in places like the Middle East. John Yoo is too young to have studied with McDougall, but he has clearly imbibed the “New Haven School” mindset.
We find one additional aspect of note in both Kroenig and Yoo’s articles. If one takes their language literally, their arguments rest on an assumption that the Islamic Republic is going to build nuclear weapons; their analyses then purport to build a case for war against an Islamic Republic in possession of assembled nuclear devices. But what if Tehran never gives the Matthew Kroenigs and John Yoos of the world the satisfaction of actually building atomic weapons? Would they still argue for a U.S. attack against an Iran with what some would construe as, at most, a theoretical nuclear weapons “option”?
One hopes that Kroenig, Yoo, and other advocates of U.S. aggression against the Islamic Republic might be willing to make at least this distinction. But, then, the truth about Iraq’s WMD programs did not seem to matter much to the Administration that John Yoo served so assiduously in 2003.