Law professor and former Justice Department official, John Yoo (right), with former Vice President Cheney's legal advisor, David Addington
Our colleague Eric Brill has produced a detailed analysis of John Yoo’s recent article, “An Unavoidable Challenge—Now is the Time to Make the Case for Military Action Against Iran,” which we are pleased to publish below. Last month, we noted and discussed Yoo’s piece, which purported to develop a legal case for a U.S.-initiated war against Iran, but which struck us as largely an argument that the United States should and could disregard international law. In the course of Eric’s deconstruction of Yoo’s reasoning, Eric notes that
“Whatever his views on Iran may be…any president or candidate may safely overlook John Yoo. He advocates nothing profound or complicated—merely that the US ignore its most important commitments under the UN Charter whenever they are inconvenient, while continuing to claim all benefits of UN membership. If this inconsistency does not bother the leader in question, he will feel no need for any thinker to provide a legal justification. If he does feel such a need, John Yoo will be of no use to him.”
On this point, we were struck recently by a Rick Santorum campaign event broadcast on C-Span. After Santorum had finished speaking, he milled informally with the crowd. Before C-Span cut away for its next program, viewers could see and hear a man come up to Santorum and ask, in an utterly non-hostile, non-challenging way, that since Congress had not declared war on Iran and the United Nations has not authorized the use of force, “are we [the United States] allowed” to go ahead and attack Iran anyway. Santorum confidently assured the man, “Yes, we are.” The camera cut away then, so we could not hear Santorum’s further explanation. But we strongly suspect that Santorum, like all of the Republican candidates save Ron Paul, has already found his inner John Yoo.
–Flynt Leverett and Hillary Mann Leverett
A Review of
“An Unavoidable Challenge –
Now is the Time to Make the Case
for Military Action Against Iran”
by John Yoo, National Review, December 31, 2011
Reviewed by Eric A. Brill
John Yoo, a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute, is best known for his brief stint at the Justice Department during the George W. Bush administration (2001-2003), where he authored a controversial memorandum approving the use of torture in prisoner interrogations at Guantanamo Bay. In the reviewed article, Yoo argues that the US should attack Iran to prevent it from obtaining nuclear weapons because this “would cause a radical reversal of the balance of power” in that part of the world, a prospect that “justifies action in itself.” The US need not and should not seek authorization from the UN Security Council, Yoo argues, because the UN “has no armed forces of its own, has a crippled decision-making system, and lacks political legitimacy.”
John Yoo’s article becomes most interesting when one reaches this passage:
Obama has [failed] to build the legal case for attacking Iran. Instead, the administration has tethered American national security to the dictates of the United Nations.
The reader naturally anticipates that Yoo will “build the legal case” that Obama has neglected, but he does not. He simply asserts that the US has a right to ignore its commitments under the UN Charter (while remaining a UN member) whenever it perceives a “grave threat to American interests.” Yoo believes Iran fits that description and so he recommends that the US attack Iran without asking the Security Council whether it approves, just as the US did when it invaded Iraq nine years ago.
Yoo sets the bar high for himself:
… the U.N. Charter guarantees the “territorial integrity” and “political independence” of each member nation, and prohibits the use of force except in self defense [or] war to prevent threats to international peace and security, but only if approved by the Security Council. … Just as national governments claim a monopoly on the use of force within their borders and in exchange offer police protection, the U.N. asks nations to give up their right to go to war and in exchange offers to police the world.
But Yoo insists that the UN is incapable of upholding its “policing” side of the bargain: “[The] U.N. has no armed forces of its own, has a crippled decision-making system, and lacks political legitimacy.” The conclusion Yoo draws from these three UN shortcomings is not explicitly stated but nonetheless clear: they invalidate the Security Council’s exclusive peace-keeping authority under the UN Charter.
Does Yoo’s first observation – that “the U.N. has no armed forces of its own” – entitle the US to engage in world-policing on its own initiative? There are several reasons why the UN has never had armed forces, but they do not matter here. What does matter is that all UN members, including the US, have always understood that the Security Council would carry out approved military interventions by calling upon member countries for ad hoc contributions of armed forces, and that is what has happened. The US has never recommended that a standing UN military force be created, and probably never will.
Yoo complains also about the UN’s “crippled decision-making system.” He has in mind the veto rights of the Security Council’s five permanent members – the US, Great Britain, France, China and Russia – which enable especially the last two to block military interventions proposed by the US. It is unlikely, however, that Yoo would describe the Security Council’s decision-making system as “crippled” when the US vetoes a proposed Security Council action, as it has done many times. That system is no more “crippled” when China or Russia blocks a US-proposed military intervention. The Security Council’s decision-making system works well enough – just not always to Yoo’s liking.
Yoo’s third assertion – that the UN “lacks political legitimacy” – is the most puzzling of all. The UN achieved political legitimacy when its members (nearly every country in the world) adopted the UN Charter and agreed to be bound by it. No country has ever been forced to join the UN, and every UN member is free to withdraw at any time. The UN’s political legitimacy is not diminished merely because a member nation disagrees with a particular Security Council action. Yet the following sentence warns the reader that Yoo will soon be arguing just that:
[The Security Council's exclusive authority to approve military interventions] 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.
“Authoritarian nations” – not a flattering description – refers to the 15 members of the Security Council, exercising their clear authority under the UN Charter. “Authorized” would be correct.
Yoo points out that a Security Council decision may conflict with the US’ national interest, an obvious possibility that the US undoubtedly considered before joining the UN. As a veto-wielding permanent member, the US can prevent the Security Council from taking any action, and it has done so many times. It is Security Council inaction that bothers Yoo, however, since the US has no power to prevent that. Inaction highlights the veto power of China and Russia, who “generally oppose intervention in what they consider ‘internal’ affairs…[and] can usually be counted on to protect other oppressive regimes by blocking U.N. approval for war….”
Yoo adds that the Security Council may not always decide correctly what is best for “global welfare.” In his view, there are military interventions that are “justified or beneficial” even if the Security Council does not think so. That may be, but the key question remains: Other than the Security Council, who should be authorized to approve a military intervention to protect international security? By agreeing to abide by the UN Charter, every UN member has given the same answer: no one. If asked again, very few would add the US to the list.
In short, the proper response to each of Yoo’s two points is the same: The US clearly understood these risks and accepted them by approving a UN Charter that grants the Security Council exclusive authority to approve military action other than in self-defense. If Yoo believes the US should withdraw from the UN, he should say so, which he does not. Unless and until the US withdraws, it should honor its commitments, just as it often demands of other UN members.
Given these feeble challenges to the Security Council’s authority over military interventions, it is not surprising that Yoo turns to the single recognized exception: the sovereign right of each UN member to defend itself. He introduces this “self-defense” exception in a hypothetical argument that the US might present to the Security Council if it does seek approval to attack Iran:
But if the president seeks U.N. authorization for a military action against Iran, his administration will have to 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.
As Yoo recalls well, however, the “international security” prong of this argument failed to impress the Security Council in the lead-up to the Iraq war. Several members, including usually reliable US allies, openly disagreed that attacking Iraq was necessary to protect international security. This left the US with only its “self-defense” argument, which fared much better because the US felt obliged to persuade only itself and other members of its small “coalition of the willing.” That proved not to be difficult, and the US soon attacked Iraq without even asking for Security Council approval. Though the US nevertheless claimed broad support, the Security Council’s skepticism appears to have reflected world opinion: only three other countries contributed troops to the invasion force – the United Kingdom, Poland and Australia, homes to about 2% of the world’s population.
Hindsight has enabled most observers to conclude that the US’ self-defense argument was flimsy regarding Iraq; foresight was sufficient for many who actually evaluated the US’ proffered evidence. Yoo nevertheless believes a similar self-defense argument justifies an attack on Iran. Although he offers an unpersuasive analogy to the 1962 Cuban missile crisis – in which the US blocked Soviet ships from delivering ready-to-fire nuclear missiles to Cuba, where they were to have been placed on already-built launching pads and aimed at Florida targets 90 miles away – Yoo makes clear that “self-defense” has the same broad scope and vague limits it had before the Iraq war. It does not require that Iran have nuclear weapons or be likely to obtain them in the near future, nor that Iran actually could attack the United States if it ever does. It is sufficient for Yoo that, in his opinion, the balance of power in that part of the world would change:
A president need not wait until an attack is imminent before taking action. Iranian nuclear capabilities would cause a radical reversal of the balance of power, and that fact justifies action in itself.
Yoo does not explain why this “justifies action in itself.” As with most elements of his “legal case,” he merely declares it and moves on, as if his point were self-evident. What “justifies action” under the UN Charter, however, is either (1) self-defense; or (2) Security Council approval. There is no third choice – unless a country withdraws from the UN, which Yoo does not recommend.
Yoo makes a fair point that “self-defense” should not require a country to wait until enemy troops are massed at its border, much less streaming across. One can easily understand why he nonetheless prefers not to dwell on whether an unprovoked US attack on Iran, for the purpose of maintaining the strategic “balance of power” in a region halfway around the world, can fairly be characterized as US “self-defense.” Unless that label fits, however, the best that can be said about such an attack is that its aim would be to protect international security – in which case it would require Security Council approval. If a UN member’s right of self-defense were deemed to have no limit short of what the country itself might declare, the Security Council’s exclusive authority to determine threats to international security would be meaningless. Any UN member could attack whomever and whenever it sees fit, simply claiming “self-defense” to insulate itself from any claim that Security Council approval is required or that its war-making threatens international security.
Yoo probably would acknowledge that the Security Council may set limits on a UN member’s right of self-defense. For example, it is unlikely that he questioned the Security Council’s authority to reject Saddam Hussein’s “self-defense” objection when it ordered the return of nuclear inspectors to Iraq in 2002, or to reject Moammar Qaddafi’s insistence that his army was defending Libya against lawless rebels in 2011. If Iran should ever reverse course and insist it needs nuclear weapons to defend itself, the Security Council undoubtedly would reject that claim as well, and Yoo would not challenge its authority to do so.
Nonetheless, Yoo’s broad self-defense justification – based here on nothing more than his predicted shift in the “balance of power” in Iran’s part of the world – would leave the US free of any practical restraint. Instead of requiring Security Council approval for military intervention, it would permit the US to attack any country whenever it likes – unless and until the Security Council affirmatively rejects the US’ claimed justification. That, of course, will never happen. Unlike Saddam Hussein or Moammar Qaddafi, the US can veto any action by the Security Council. In effect, Yoo’s practically limitless definition of “self-defense” would transform the veto power of the Security Council’s permanent members from an annoying obstacle, as the US considers it when Russia or China (or France) opposes a military intervention proposed by the US, into a useful tool with which the US can prevent the Security Council from ever challenging its characterization of aggressive military action as self-defense.
Though Yoo’s prose sounds tough at times, his arguments lack the boldness necessary to give them any claim to validity. Most important, he does not recommend that the US withdraw from the UN, which would terminate its commitment to abide by the UN Charter. Yoo apparently prefers that the US remain a UN member but pick and choose among the burdens and benefits of membership. For example, he does not question the Security Council’s authority to adopt resolutions of which the US approves. Nor does he object when the US insists that other countries comply fully with those resolutions, or demands that even harsher resolutions be adopted. He does not complain that the UN Charter permits the US to veto any Security Council proposal it does not like – only that Russia and China are permitted to do the same thing. Yoo’s complaints about the UN are reserved for situations where the US desires military intervention but the Security Council declines to authorize it. Only then does he insist that the Security Council lacks “political legitimacy,” that its decision-making system is “crippled,” and that the US is being short-changed in its UN bargain because “the U.N. has no armed forces of its own.” That is when an unapproved US attack on another country, based on Yoo’s broad “balance of power” view of self-defense, strikes him as justified by the Security Council’s failure to recognize what is plain to Yoo: “global welfare” requires such an attack.
Yoo believes the US wasted precious time before the 2003 Iraq war. Initially it tried to fit its attack decision within a UN Charter framework, insisting that the Security Council’s 2002 resolution ordering the return of nuclear inspectors to Iraq (1441) was sufficient authorization for an attack, or that resolutions left over from the 1991 Gulf War (678 and 687) could be dusted off and used again. It even considered requesting explicit attack authority until its closest ally (Great Britain) advised that this would be futile. In the end, however, the US despaired of these efforts and fell back on its “self-defense” argument, appointed itself as the sole judge of that argument, and, not surprisingly, concluded that the argument was compelling.
Yoo worries that Barrack Obama might dawdle with Iran as his predecessor dawdled with Iraq, and he sees danger signs in Obama’s handling of the 2011 Libya uprising:
In Libya, Obama delayed launching the air war until the Security Council approved the intervention, allowing a popular revolution to metastasize into a prolonged, destructive civil war. The same craving for international approval may lead the administration to put off military action against Iran until it is too late.
If Obama will not act without seeking UN approval, Yoo thinks he should be replaced by someone who has laid the groundwork for Yoo’s plan to be carried out:
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. … The Republican presidential candidates should begin preparing the case now for this difficult but unavoidable challenge.
Whatever his views on Iran may be, however, any president or candidate may safely overlook John Yoo. He advocates nothing profound or complicated – merely that the US ignore its most important commitments under the UN Charter whenever they are inconvenient, while continuing to claim all benefits of UN membership. If this inconsistency does not bother the leader in question, he will feel no need for any thinker to provide a legal justification. If he does feel such a need, John Yoo will be of no use to him.