THE NEOCONSERVATIVE BUSH DOCTRINE A QUESTION OF LEGITIMACY

Keith M. Smilie
Illinois State University

December, 2012

Abstract
[For decades United States foreign policy was guided by the realist school within the discipline of
International Relations Theory. Privileging the principle concepts of containment and deterrence, realist
doctrine formed the context of American conduct within the international community. The election of
George W. Bush and the terrorist attacks on the United States on September 11, 2001, represent
transformative directional change in U.S. foreign policy and security strategy. The National Security
Strategy directive issued by President George Bush in 2002 became one of the most controversial
documents of its era. What was to become known as the Bush Doctrine, challenged not only the precepts
of realist thought and practice, but served as the Bush administrations manifesto for philosophical and
political thought. Seeking to legitimize pre-emptive military intervention in Iraq, the pursuit of aggressive
strategies to combat the emerging threat of global terrorism, extending the notion of United States
democratic and moral imperatives and the pursuit of a unilateral international agenda, the Bush Doctrine
became a lightning rod for international debate and protest. In the aftermath of the invasion and occupation
of Iran and Afghanistan and the benefit of both time and an abundance of insightful scholarship, this paper
will provide an examination of the neo-conservative driven Bush Doctrine and an evaluation of its
legitimacy as an instrument of United States foreign policy in the context of the greater international
community.]

Introduction- Paradigm Shift in United States Foreign Policy

Reasoning that the emergent and compelling threat to national security in the post-cold war era
was the growth of global terrorism, the Bush Administration broached the subject of preemption in
suggesting that it was contemplating a military attack on Iraq to defend the United States from further
threats. President of the United States George W. Bush declared in a June 1, 2002 speech at West Point,
that given the nature and type of threat posed by Iraq, the United States had a legal right of selfdefense, as outlined in Article 51 of the United Nations Charter. President Bush further elaborated, we
must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge 1.
As the United States had not been attacked by Iraq, the rationale embedded in his speech at West
Point created a deafening debate and controversy regarding the legitimate use of force as a pre-emptive
measure as outlined in international law and the applicable articles of the United Nations Charter. While
certainly not the first President to reserve the right to attack a nation pre-emptively, the threat to national
security by a nation that had not attacked the United States was viewed as circumspect2.
Nonetheless, despite the growing concern regarding the legality and legitimacy of the measures
articulated by President Bush in the June, 2002 speech at West Point, in September of the same year, in
what would become known as the Bush Doctrine, The National Security Strategy for the United States
(NSS)3 was introduced. Serving as the primary rationale guiding the nations counterterrorism policy, it
authorized the Department of Defense to initiate planning for pre-emptive military intervention as a
security measure in the Global War on Terror (GWT).
The NSS represented a series of foreign policy initiatives which changed the trajectory of the
United States security strategy reflecting a rationale which rested on military pre-emption as an outcome
of unilateral actions designed to extend democracy, liberty and security to all regions4. The policy
represented a sharp departure from post Cold War strategy featuring policies aimed at deterrence and
containment.
Seeking to legitimize pre-emptive military interventions as an acceptable conduct of state security
and as a fully compliant action under the terms of the United Nations Charter, the NSS maintained that
the international landscape was drastically altered following the attacks on the United States on
September 11, 2001. As a result, the document elaborated that the United States faced new threats with
1

George W. Bush, Speech at West Point, New York, June 1, 2002 (Washington D.C.: The White House, June 2002)
Dating to the War of 1812 in which President Madison launched a pre-emptive strike in Spanish Florida extending to President
Clinton, Presidents have utilized pre-emption as an extension of foreign policy.
3
George W. Bush, The National Security Strategy of the United States of America, (Washington D.C.: The White House,
September 2002)
4
IBID
2

the proliferation of weapons of mass destruction and terrorist networks, armed with the agendas of
fanatics and the threats now posed are so dangerous that we should not hesitate to act alone, if necessary,
to exercise our right of self-defense by acting pre-emptively5.
Widely viewed as a violation of both the normative concepts governing the use of force as well as
the sanctity of state sovereignty, the international community criticized the NSS as a blatant and obvious
ploy to legitimize the invasion of Iraq. As a result, the Bush Doctrine and its rationales became a lightning
rod for intense debate.
It should be pointed out here that pre-emptive strikes are not new to international politics. A
number of nations resorted to this approach during both the 19th and 20th centuries6. The departure point
for the NSS, is that it reserves the right to initiate military strikes against another sovereign state despite
the absence of a verifiable imminent threat. Furthermore, the NSS seeks to legitimize the notion of firststrike as a core assumption of the doctrinal approach to security strategy. It likewise envisions a
transcendent right of the United States to engage preventively in a military intervention. This
represented a substantive shift from the post- Cold War normative principles guiding international
conduct.
Despite what appears to be a near consensus of scholarly and international opinion that the Bush
Doctrine over-reaches and stands in violation of acceptable international norms, I will ultimately argue
that the Bush Doctrine as outlines within the 2002 NSS Directive provides a rational response the
growing global terrorism threat. I will further argue that neither the United Nations Charter nor the
normative concepts of Just War traditions are violated under the measures of the NSS Directive.
I will further posit that the rationales of both the United Nations and Just War traditions are
wholly inadequate to deal with the challenges posed by the ever-increasing and deepening threat of
international terrorism, and therefore, through the notions of constructivist IR theory requires that these
institutions be re-constituted to reflect the realistic nature of the threat typology currently challenging
global security.
To more clearly frame the parameters of this paper, I will first address both the neoconservative
rationales as well as the specific logic driving the NSS Directive. Secondly, I will review the international
norms and legal structures as they interact with the challenges posed by the Bush Doctrine. Next, given
that neoconservative thinkers (through the voice of the Bush Doctrine) seek to replace the formerly

5
6

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

incumbent neorealist paradigms (which formed the basis of United States foreign policy for well over a
decade), I will discuss the points of contention between these two schools theoretical approaches within
the discipline of International Relations. Finally, I will discuss the rationales informing my support of the
NSS Directive, as well as my assertion that the emergence of global terrorism is a game changer and
therefore the emergent threats posed by terrorism requires changes to the normative principles guiding the
response mechanisms and the interpretation of imminent threat.
The Emergence of the Neo-conservative Blueprint
The terrorist attack on the United States on September 11, 2001 and its aftermath represented a
transformative moment not only for United States foreign policy but for the neo-conservative nature of
the Bush Administration as well. The terrorist strike served to simply confirm the base notions held by
neo-conservatives within the Administration. Seeing a stark contrast between the virtuous democratic
ideals as held by the United States and the axis of evil represented by global terrorism and autocratic
dictatorships, the events of 9/11 served to further support the neo-conservative notion of a vast and
growing danger which signaled an imperative urgency to intervene by force if necessary, in an effort to
crush enemy forces arrayed in a hostile movement targeting the United States for attack.
Becoming the intellectual blueprint of the Bush Administration following the 9/11 attacks, neoconservatism became the policy of the United States Government. Downplaying diplomacy as simply a
route to appeasement, the Bush Administration embarked on an aggressive foreign policy. Seeing the
supremacy of military strength as a powerful tool, the neo-conservatives began to shape US foreign policy
in a manner that envisioned an opening to convert evil regimes into democracies through the use of
military and political strength. This reasoning further extended into the fashioning of the post 9/11 United
States response. Maintaining that the militant Arabs and Muslims are capable of reasoning only through
an understanding of superior force, the Bush Administration neo-conservatives set out to introduce
fundamental and sweeping changes to United States foreign policy and security strategy.
Of little consequence were the realist theorists both within the Presidents own party and
administration. Seemingly drowned out by the post 9/11 urgency to construct a more aggressive policy to
deter the threat of terrorism, these voices nonetheless urged the neoconservatives to consider diplomacy
over military force and a multilateral approach to containment as opposed to the growing inertia within
the administration to pursue a unilateral path. Rejecting realist notions ascribing to balancing rationales
creating international order, neoconservatives resurrected the Vietnam era theory of bandwagoning and its
underpinning logic represented by the domino theory. Neoconservatives within the Bush administration
believed that a domino effect would follow with an invasion of Iraq and the removal of Saddam
4

Hussein. Backed by a neo-conservative faith in the might of the United States military, it was reasoned
that the removal of Saddam Hussein would send a signal to the middle- east that the military superiority
of the United States should encourage other states to fall in line.
The neo-conservatives further reasoned that the strategy of pre-emption would further their
Wilsonian cause to spread democracy as a tool to deter further terrorist activities and transform the
Islamic world and middle-east region into democracies that looked more like the United States, as
opposed to those states heavily influenced by Islam and the terrorist jihadist causes.
Fundamental to this neoconservative belief was the notion that in using and extending its global
power and reach, the United States would not only assist but instigate the necessary regime changes to aid
in the continuing development of the democratic model. The foundation of this thinking has its roots in
the democratic peace thesis originally advanced by Immanuel Kant in writing democratic nations have a
quality that makes them more inclined to pursue peace with other nations, rather than engage in warfare7.
Although later scholars including John Mearsheimer have presented empirical evidence that Kants model
does not necessarily apply to acts of aggression with other non-democratic states8, the original notion
holds when viewing interaction with other democratic regimes.
The principal notion of Kants theory proposes that continual submission to elections raises the
stakes for those leaders who would have a predisposition for aggressive agendas knowing that their
actions will be reviewed by an electorate. The democratic peace thesis has received considerable support
among more contemporary scholars. Notably, Robert Kagan suggests that the democratic essence of the
United States makes it difficult if not impossible for Americans to ignore the concerns of its fellow liberal
democracies9. Fukuyama further argues that democratization does help to create a more peaceful and
stable state of affairs and there has been great benefit to American security interests10
While realists criticize the theory through their suggestions that the United States should more
clearly focus on its own interests, Robert Nye argues that the furtherance of democratic goals not only
includes the creation of additional democracies as well as opens up new markets for prospective trade and

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

Mearsheimer, John, Structural Realism, Kurki and Smith, 2007, p72.
9
Kagan, Robert, America and the Use of Force: Sources of Legitimacy , Bridging the Foreign Policy Divide, Chollet,
Lindberg & Shorr, 2008 p. 10.
10
Fukuyama, Francis, Reflections on the End of History Five Years Later, History and Theology,Vol. 34, No. 2, May 1995.
8

economic benefit. Nye further suggests that ultimately the best strategy to ensure our security and to
build a durable peace is to support the advance of democracy elsewhere11.
Neoconservatives believed that through the Bush Doctrine and the NSS that a commitment to the
spread of democracy was not only for the benefit of security, but also as a function of fighting evil and
justice around the world. Anchored in this notion is the neoconservative belief that the United States is a
fundamentally Christian nation possessing a moralistic core and as such requires of its government to act
on this moral imperative. This thinking was operationalized by Charles Krauthammer when he wrote
unlike other nations in the world, the US behaves disinterestedly on the world stage, having the will to
act as a custodian of the international system, rather than having ambitions for imperialism. The United
States, however, has the opportunity in the post-Cold War era to act as a benevolent hegemon infusing
its foreign policy with a needed moral center and moral imperative while it assists in the plight of those
countries not blessed with a democratic system of government12.
In general, the neoconservative notions of foreign affairs stood in direct juxtaposition of the
realist paradigms it sought to replace through thinkers in the Bush Administration and the advancement of
the Bush Doctrine. For our purposes here, Francis Fukuyama nicely summarizes the neoconservative
foreign policy agenda by unpacking it into four notions. First, distrust of social engineering but a belief
that societal structures shape the actions of states and citizens. Second, the belief that the spread of
democracy will create international peace and be universally beneficial. Third, the opinion that the United
States is a moral nation that has the duty to act as a benevolent hegemon, and lastly, a distrust of
international institutions and skepticism of their effectiveness, leading to the belief that international
organizations can be disregarded, leaving the United States to act unilaterally13.
The 2002 National Security Strategy of the United States The Bush Doctrine
The foundation of the Bush Doctrine took root under the presidency of George H. W. Bush.
Following the Iraqi invasion of Kuwait, Department of Defense officials Paul Wolfowitz and Lewis
Libby were directed to research and write a proposal for a new military and security strategy. The final
draft of the memorandum concluded that the realist policies of containment and deterrence had become
ineffectual given the new threats of rogue nations and the ever-growing concern of global terrorism.
The three basic points that formed the central rationale for their strategy concluded that the United States
must remain unchallenged as the worlds only superpower, events may require a shift in policy to the use
11

Nye, Joseph, The Paradox of American Power: Why the Worlds Only Superpower Cant Go it Alone, Oxford University Press,
Oxford, 2002, p 138.
12
Krauthammer, Charles, The Unipolar Moment, Foreign Affairs, Winter, 1990-91
13
Fukuyama, Francis, After the Neocons: America at the Crossroads, Profile Books, London, 2006, p16.

of first strike military force as a method of self-defense, and, if necessary, the Department of Defense
should be prepared to act unilaterally to confront the threat to security.As the proposal ignited
controversy, President Bush directed that the language referring to pre-emption and unilateral action be
removed. As a result, the doctrine faded into the background and the general US policy of containment
and deterrence continued throughout the remaining Bush term and the Clinton presidency14.
Following the election of George W. Bush and Vice President Dick Cheney, both Wolfowitz and
Libby became influential advisors during the first term of the Bush presidency. Forming a core of neoconservative advisors surrounding the President, these neo-conservatives set out on a course to radically
alter the face of U.S. foreign and military policy. Their strategy included resurrecting the tenets of the
security memorandum originally written by Libby and Wolfowitz, with engaged support for this strategy
from Vice President Cheney himself. In addition to the resurrected policy of unilateral pre-emption, this
group of neo-conservative thinkers pushed the notion of first strike capability even further to conclude
that the United States should aggressively confront hostile and militant Islamic regimes and an expansion
of democracy and capitalism throughout the world15.
In the aftermath of the terrorist attacks on the United States in September of 2001, the
neoconservative group within the White House, pushed for an immediate and decisive attack on Iraq.
Secretary of State Colin Powell prevailed as he urged an attack on Afghanistan in response to the
Talibans harboring of Al Qaeda terrorists16.
In his January 2002 State of the Union Address, President Bush began to lay the foundation for
the changing national security strategy in referring to Iraq, Iran and North Korea as an axis of evil in
stating that The United States of America will not permit the worlds most dangerous regimes to threaten
us with the worlds most destructive weapons17.
In September of 2002, the Bush Administration released the National Security Strategy directive
of the United States. On September 12, 2002 the President addressed the United Nations and made clear
that the policy of the United States required that Iraq be disarmed of weapons of mass destruction through
the enforcement of the United Nations, or, if necessary, by the United States acting unilaterally in selfdefense.

14

Skidmore, David, Understanding the Unilateralist Turn in U.S. Foreign Policy, Foreign Policy Analysis, 2005,1 (2):207-228
IBID p. 210
16
IBID p. 212
17
Bush, George W., The 2002 State of the Union: We Will See Freedoms Victory. Address at a Joint Session of Congress,
January 29, 2002. Vital Speeches of the Day, 2002, February 15: 258-262
15

Clearly the Bush Administration was of the opinion that new threats in the newly constituted era
of terrorism, coupled with weapons of mass destruction in the hands of rogue nations demanded a new
security strategy. Reasoning that global terrorism and weapons of mass destruction threaten not only
national sovereignty but global stability as well, that defensive deterrence is not enough to prevent attacks
and that without preemptive capabilities terrorists will continue to take the initiative and attack at the time
and place of their choosing18.
Neoconservatives within the Bush administration viewed imminent threat as a demonstrated act
of terrorist violence and the continued or preceding rhetoric as an indicator of intent. The administration
vehemently argued that the United States could no longer ignore strong signals of impending or ongoing
aggressive intent. Paul Wolfowitz argued that ongoing threats like those posed by Osama bin Laden in the
months prior to September, 2011, would henceforth be considered aggressive and in many cases,
actionable evidence requiring preemptive, first-strike capabilities19.
In general, therefore, the objective of the NSS Directive and the United States Counterterrorism
policy and the deployment of preemption as both a tool of security strategy as well as military
methodology are quite clear. Preemptive strikes were designed and rationalized to prevent and stop
terrorist attacks before they can occur. The NSS directive posits an imminent, multifaceted, undeterable
and potentially calamitous threat to the United States a threat that, by virtue of the combination of its
destructiveness and vulnerability to deterrence, has no precedent in American history. By implication,
therefore, such a threat therefore, such a threat demands an unprecedented response. This unprecedented
response, which is actually a response based on precedence, is preemptive action.20
Although needing just thirty-five pages, The National Security Strategy of the United States,
September, 2002, as has been discussed represented a drastic departure from the decades old realist
policies of containment and deterrence. The directive specifically outlined three transformative strategies
pre-emption, unilateralism and the commitment to extend freedom on a global basis.
18

Bush, George W., The National Security Strategy of the United States of America, (Washington D.C.: The White House,
September 2002)
19
Wolfowitz used the text of Osama Bin Laden as an example of rhetoric demonstrating imminent threat:
To kill the Americans and their allies -- civilians and military -- is an individual duty
for every Muslim who can do it in any country in which it is possible to do it, in order
to liberate the al-Aqsa Mosque [Jerusalem] and the holy mosque [Mecca] from their
grip, and in order for their armies to move out of all the lands of Islam, defeated and
unable to threaten any Muslim.
Osama bin Laden
(In Fatwa entitled Jihad Against Jews and Crusaders World Islamic Front Statement,
February 28, 2000)
20

Record, Jeffrey, The Bush Doctrine and War with Iraq, Parameters 33 (Spring 2003)

As has been discussed at some length here, the capstone notion of pre-emption represents a
reversal of prior notions of deterrence and containment in favor of first strike capability to deter terrorist
organizations and rogue states in possession of weapons of mass destruction the opportunity to strike
first. Perhaps in anticipation of sharp criticism, the NSS Directive understood that the prevailing norms
and international legal concepts required that pre-emptive action be in response to the existence of an
imminent threatmost often a visible mobilization of armies, navies, and air forces preparing to attack.
The document however, argues that terrorists and rogue states will not use conventional armies and
navies, but rather terrorism and possibly weapons of mass destructionweapons that can be easily
concealed, delivered covertly, and used without warning not only constitute a new threat, but demand a
new conceptualization of imminent threat based upon the capabilities and objectives of todays
adversaries21.
The second rationale of unilateralism, is posited on the notion and the language which concludes
that all sovereign nations reserve the right to act on its own behalf in the face of an imminent threat to
security. Having defined imminent threat, the Directive further elaborates that while the Bush
administration fully supports multi-lateral peace initiatives and negotiated outcomes as a deterrent to
violence, it nonetheless will not hesitate to act alone. Inherent in this argument is a belief that both the
United Nations and International Court of Justice have been slow and reticent to act in an expeditious
manner in the face of global security threats. Moreover, the Bush administration reasons that the sluggish
nature of these organizations work to encourage rogue behavior given the lack of enforceability within a
wholly anarchic international hierarchy22.
And, lastly, the third element of the Bush Doctrine can be treated as an absolute reflection of the
neoconservative notion of spreading the global reach of democracy both as an ideal as well as security
strategy. The directive explicitly states that the United States should extend the benefits of freedom from
across the globe in order to build a balance of power that favors freedom. As was seen with Afghanistan
and Iraq, the notion of nation-building within the Bush Doctrine was met with little success23.
Normative Principles
Although I will not provide here an exhaustive rehearsal of scholarships treatment of
international norms and concepts which guide the conduct of pre-emptive interventionist rationales, it is,

21

George W. Bush, The National Security Strategy of the United States of America, (Washington D.C.: The White House,
September 2002)
22
IBID
23
IBID

however, important to discuss both the contextual and institutional influences which provide the
conceptual frameworks informing the legitimacy and perhaps morality of pre-emptive measures.
While International Relations scholars point to an anarchic international system, lacking both
hierarchical or punitive authority from which to control the actions of sovereign states or non-state actors,
there does exist at minimum a number of ordering concepts and perhaps norms, which together provide at
least a tacitly conceived moral and coercive authority informing states as to the rules of the game.
Although there is little agreement among scholars as to the nature of such ordering principles, most
states, nonetheless submit to at the very least, minimalist contextual principles and foundational
structures.
It should be noted here, that this paper will view the norms and institutions discussed in the
following sections through a decidedly constructivist 24lens. In as much as actors interact with other actors
and institutions to assist in providing definition to a socially constructed international order, the constructs
of norms and institutions are neither monolithic nor static. As such, the interaction of both actors and
states within the international system define both the nature and structure of social context and structural
parameters providing direction to higher order principles and norms. Because the autonomy of actors are
limited by the interactions with other autonomous actors, the behaviors of actors and states are
constrained within the context of this interaction25.
While it will not be argued here that the international system is not anarchic, the constructivist
viewpoint will hold that anarchy is what states make of it. Noted constructivist Martha Finnemore
suggests that while norms change based upon the historic interactions between actors and states, change
does not come quickly or easily. As norms and institutions constitute behavior and vice versa, they
become increasingly mutually reinforcing, and those norms consistent with the contemporary context
(shaped through the reality of interaction) of normative structures are more likely to take hold; those that
are not are lost to posterity. Finnemores conceptualization regarding the evolution of norms suggests that
when institutionalized, newly constituted norms and behaviors repeat the process of mutual

24

Onuf, N.,Constructivism: A Users Manual. In Kubalkova, V. International Relations in a Constructed World (pp. 58-78)
Amonk, New York, USA:M.E. Sharp, Inc
Nicholas Onuf (World of Our Making, 1989), is generally viewed as operationalizing the IR Theory of constructivism. Based on
the concept that humans are social beings and the world is socially constructed, it explains that interactions with other agents
and structures, provide meaning to each other and are therefore mutually constitutive.
25
IBID p.59

10

reinforcement, enabling related behaviors to emerge while compelling actors to conform to avoid conflict
or de-legitimization26.
This interpretation seemingly mitigates the effect of a purely Hobbesian state of nature in which
an anarchic international order is inherently aggressive. So to, the constructivist approach would posit that
explaining state behavior through the realist lens of anarchy, egoism and material power, stands wholly
insufficient to describe the evolution of operational norms, principles and institutions.
Given the background illustrated here, it is possible to locate at minimum, the conceptual
principles of importance from which to view the concepts of the Bush Doctrine more generally and
preemption more specifically. However, in doing so, this paper will later argue, that from a constructivist
viewpoint, the ordering norms discussed below are subject to the changing contextual landscape as a
reflection of the realistic challenges of contemporary security concerns.
Just War Tradition
International Relations Theory often defines the relations between states based upon a
presumption of international anarchy. Generally, this context refers to the state of nature as described by
Thomas Hobbes. Hobbes describes this state as inherently aggressive a war of all against all. The
resulting logic of this statement therefore assumes the conditions of law and morality are absent, and in its
place, fear and power are the primary and dominant reflection of the anarchic condition27.
Critics of Hobbes have pointed out that to assert that the state of nature is inherently immoral, is
to also maintain that by asserting this claim, the claimant is indeed assuming the international system
must, therefore possess a moral and legal fabric. By logical extension, an existence of a moral and legal
framework would assume at least the most elemental morality guiding states in the area of warfare and
acts of aggression. Although anarchic in the sense that the international system lacks an ordering
hierarchy, the most basic elements of morality weaved together must therefore form at the very least a
constitutive basis of guidance28.
These elemental notions of legality and morality can be found in two very important doctrines
which inform the use of force, and more specifically the basis of the general critique of the Bush
Doctrines interpretation of these normative concepts. Specifically, the criticism contends that the

26

Finnemore, Martha, International Norm Dynamics and Political Change, International Organization (The IO Foundation and
the Massachusetts Institute of Twechnology) 52, no. 4 (Autumn 1998): 887-917. P. 888
27
Gauthier, D., 1969, The Logic of 'Leviathan': the Moral and political Theory of Thomas Hobbes, Oxford: Clarendon Press.
28
Curran, E., 2006, Can Rights Curb the Hobbesian Sovereign? The Full Right to Self-preservation, Duties of Sovereignty and
the Limitations of Hohfeld, Law and Philosophy, 25: 243-265.

11

rationales guiding the notions of pre-emption both the rights granted sovereign states as established under
the 1648 Treaty of Westphalia as well as the tenets outlined in Just War tradition29.
Central to the principles of sovereignty and Just War traditions is the supremacy of
nonintervention and nonaggression. From this perspective, there exists an inherent equality between
states, a right to self-determination and a universal obligation of nonintervention. The notion of state
sovereignty as a near absolute was enshrined in The Treaty of Westphalia. Given the perspective and
tenets of the Treaty, and the consent of the parties to subject their states to both its general intent as well
as specific precepts, at minimum, states therefore agreed to operate within a procedural and moral
framework of international justice30.
This framework further constituted a mutual respect for equal sovereignty of each state or society
and injustice could therefore not only be generally conceived but more specifically defined as a crime of
aggression through the violation of the foundational frameworks underlying the system itself the
concept of nonintervention.
More specifically, the moral presumption against the use of force rests upon a cosmopolitan31
perspective viewing the state right of self-determination as a manifestation of individual rights. As a result
the principle of nonintervention must therefore rest on the individual right of security, aggression is
therefore not only an international crime because it violates national sovereignty, but more fundamentally,
it violates the rights of the individuals presumption of security32.
This paradigm presumes the use of force must be morally justified. Logic would also therefore
hold that there may be a circumstance that also justifies or even morally demands the use of force. As a
result, morality becomes the guiding principle for nonaggression as well as the use of force.

29

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

The concept of Just War Theory is generally associated with Augustines doctrine of just war. Additionally, it can be traced to
Aristotles Politics, posit that war was a means to defend the good life and to help others share in the good life. Similarly,
Thomas Aquinas suggested that the target entity of the intervention must have had some form of guilt, while Vitoria (1492-1546)
viewed the duty of civilised states to intervene in the backward states to end inhuman practices. Grotius (1583-1645) added to
these criteria. Early Jewish, Greek and Roman natural law traditions from the Christian Just War Doctrine emerged containing
idea relating to the justice of using force against another: p.40-41,62.
30
Nardin, T., 1996, The Ethics of War and Peace, Princeton, NJ: Princeton University Press.
31
Immanuel Kants 1795 essay Perpetual Peace, is generally viewed as the foundational work for cosmopolitan theory. Kant
proposes a communal understanding informing the guiding principles from which to protect people from war, and morally
grounds the cosmopolitan right by a universal hospitality. Kant claimed that the use of the right to the earths surface which
belongs to the human race in common would finally bring the human race ever closer to a cosmopolitan constitution. See Note
#7.
32
Kant, I. 'Toward Perpetual Peace' in Practical Philosophy-Cambridge Edition of the Works of Immanuel Kant. Gregor MJ
(trans.). Cambridge University Press, Cambridge. 1999. p329 (8:358).

12

The Just War traditions inform the moral criteria for determining whether the use of force is
therefore morally justified. These criteria comprise what is traditionally referred to as jus ad bellum
(applied to the legitimacy of the use of force) and jus in bello (pertaining to the just conduct of war).
More specifically, use of force came to be defined as legitimate when meeting the criteria of: just cause,
right intention, right authority, last resort, and reasonable prospects for success33.
The United Nations and the International Court of Justice
The recognition of state sovereignty, frameworks regulating acts of aggression and a respect for
non-intervention were formally institutionalized when the United Nations included it in its June 26, 1945
organizing charter, Articles affirming these concepts and further signaling its intent to consider nonintervention as both a legal norm and ordering doctrine. Providing further commitment to these ideals was
the 1949 decision of the International Court of Justice rejecting the possibility that a right of intervention
by force would be consistent with international law. In its ruling in the Corfu Channel matter, the Court
stated, whatever be the present defects in international organization, the right of intervention by force
cannot find a place in international law34.
In an effort to more precisely understand the intersection of the NSS Directive with the
controlling international norms and principles, a more precise review of both the United Nations Charter
and International Law will be discussed to shed light on the morality and legitimacy of the NSS Directive.
Additionally, a review of the Bush Administrations rationales and arguments should provide important
background as to the nature of the NSS Directive and their interpretation of United Nations and ICJ
opinion governing the use of force.
Turning first to the intent and language of the United Nations Charter, there is evidence that
multiple provisions speak directly to the notions of preemption and the use of force. The preamble in
particular states that the very formation of the United Nations was based on the over-arching principle of
saving succeeding generations from the scourge of war and stipulating in Article 2[3] that its members
were therefore obligated to settle their international disputes by peaceful means. Article 2 [4] instructs
members to refrain in there international relations from the threat of use of force against the territorial
integrity or political independence of any State, or in any manner inconsistent with the purposes of the
United Nations35.

33

Walzer, M., Just and Unjust Wars: A Moral Argument with Historical Illustrations, (4th ed. New York: Basic Books, 1977).
International Court of Justice (ICJ), Corfu Channel (United Kingdom of Great Britain and Northern Ireland-Albania),
Judgement, ICJ Reports 1949, para. 29.
35
Charter of the United Nations, Statutes and rules of court and other documents, International Court of Justice, The Hague.
34

13

Additionally, Article 39 creates a system of collective security in which the Security Council is
authorized to determine the existence of any threat to the peace, breach the peace, or act of aggression,
and to decide what measures shall be taken to maintain international peace and security. Article 51
further comments, that although the Charter generally seeks to deny the use of force by states against their
adversaries, it does recognize the right of nations to use force for the purpose of self-defense only after an
armed attack has occurred36.
While a strict interpretation of Article 51 would all but negate the legitimacy and use of preemptive measures involving the use of force, the Bush Administration as well as a number of scholars are
concerned with the scope of the right to self-defense as well as the literal construction of Article 51.
Central to the argument of literal construction is an argument advance by scholars that the narrow
interpretation has the consequences, albeit perhaps unintended, to protect an aggressors right to strike
first. The literal interpretation of the Article requires such an unreasonably high threshold as to what is
actionable evidence for self-defense so as to render the self-defense provision of Article 51 as
meaningless37.
Bush Administration National Security Advisor Condoleeza Rice, elaborated on the notion of
imminent in her defense of the Bush Doctrine notions of pre-emptive self -defense noting that
extremists who seem to view suicide as a sacrament are unlikely to ever be deterred. And new
technology requires new thinking about when a threat actually becomes imminent. So as a matter of
common sense, the United States must be prepared to take action, when necessary, before threats fully
materialize38
Similarly, advocates of a more general interpretation of Article 51additionally posit that a
continued support of the present construction and or strict interpretation of Article 51belies the fact that,
in practice, states have used force as a pre-emptive measure, while the international community has
evaluated these measures based not on the strict interpretation of Article 51, but on the basis of traditional
notions within international law as they pertain to the notions of constraint of necessity and
proportionality39.
This logic necessitates, therefore, a discussion regarding the treatment of anticipatory preemptive measures within the domain of international law. It is here that the Bush Administration has

36

IBID
Simma, Bruno, The Charter of the United Nations: A Commentary, Oxford, Oxford University Press, 1994 p. 677.
38
Rice, Condoleeza, Rice Discusses Presidents National Security Strategy, Foreign Affairs, March, 2002.
39
IBID
37

14

argued that the conditions qualifying the legitimacy of a pre-emptive strike must consider the gravity of
the threat being posed by the potential aggressor.
Generally, the most widely cited case law which speaks to anticipatory practices and the
conditionality of constraint and proportionality is the Caroline doctrine of 1842. The Caroline case
represents the agreement of British and American officials at the time that the use of defensive force is
permitted when the necessity of that self-defense is instant, overwhelming, and leaving no choice of
means, and no moment of deliberation. Using the Caroline logic, that terrorists are planning a series of
attacks, a state may respond to prevent future attacks about which it has evidence. The enemys intention
to continue terrorist activities, following a confirmed aggression, provides evidence necessary to meet the
Caroline criteria as a lawful response40.
International legal scholars have noted that this interpretation of the Caroline case is an overly
generous extension of the Caroline logic. In this regard, these same scholars do not accept the argument
that either the Caroline case or customary law provides a compelling argument for pre-emptive strikes.
Similarly, the lack of standing in the International Court of Justice in the form of a direct ruling on the
matter of pre-emption provides evidence that there is little support for this notion in the international
community41.
Finally, proponents of a broader right of anticipatory self-defense generally construct their
argument surrounding the word inherent in Article 51. These legal scholars argue that Article 51
explicitly observes by its language not to impair the inherent right of self-defense. As a result the
language left intact the law of customary self-defense, predating the adoption of the UN Charter. By
extension the tenets of customary law, therefore left open the opportunity for anticipatory self-defense.
This inherent right logic argues that the parameters of the right of self-defense are and should be
unchangeable by the UN Charter. Reasoning that the supremacy of customary law42 trumps UN Charter
articles as advisory, no authority has ever been identified as rendering anticipatory self-defense as
anything other than a positive defense43.
The Realist Lens

40

Martyn, Angus, The Right of Self-Defense Under International Law, The Response to the Terrorist Attacks of 11 September,
Current Issues Brief No. 8 Canberra. Department of Parliamentary Library.
41
Gordon, Phillip, The End of the Bush Revolution, Foreign Affairs, 2006, 85(4), 75-86
42
The supremacy notion is expressed within International Law as the notion of the jus cogens principle. Literally translated from
its Latin meaning of compelling law, these principles in customary law serve as preemptory norms which form the fundamental
basis of international law.
43
Cook, Martin, Ethical and Legal Dimensions of the Bush Pre-emptive Strategy, Harvard Journal of Law and Public Policy,
September, 2003.

15

Among the most visible opponents to the NSS Directive as well as the subsequent invasion of
Iraq, realists viewed the neo-conservative policies of the Bush administration as being overly bellicose.
Warning that the Bush policies would be conceived as operating outside the norms of international law
and principles, realists suggested that these policies would engender deep and vocal anti-Americanism in
the global community. Among realist political figures, foreign policy experts Zbigniew Brzezinski and
Brent Scowcroft also argued that replacing Americas traditional balance-of-power approach in the
Persian Gulf with the Bush Doctrines neo-conservative approach, would lead to a strategic blunder,
making it more difficult for the United States to protect US vital interests in the region.
Leading realist Stephen Walt argues that the decades old US containment policies utilized by
previous administrations served Americas security interest very effectively. Walt contends that what
brought order to a post-World War II international landscape, and was a large contributor to the downfall
of the Soviet Union, was a foreign policy erected on containment and deterrence while reserving
resources for more important uses.
For realists, who argued against a pre-emptive invasion, Iraq was viewed as a periphery concern.
Reasoning that the terrorist network and the capture of Osama bin Laden should be the central task of
foreign policy and that Iraq could not only be contained but deterred. Therefore, the reasoning held, that
pre-emption was an unnecessary use of force. Here realists dispel the notion of nationalistic foreign policy
crusades to spread the democratic ideal. Leading realists Hans Morgenthau and John Mearsheimer viewed
the Wilsonian project of spreading democracy as an egregious foreign policy error. Both Morgenthau
and Mearsheimer agree in their critique of the neoconservative democratization agenda in advising that
the internal structure of states should be of little concern to foreign policy makers. In their view, states
should conform to the consensus of sovereignty and autonomy of other nations, regardless of the brand of
politics practiced by the nation. As an extension of this rationale, this equality of standing engenders a
system which allows for the same basic incentives for all great powers44.
Consistent with the rejection of an international democratization agenda, realists reject the neoconservative, Viet Nam era domino approach of bandwagoning. Stephen Walt argues that the bandwagon
argument put forth by neoconservatives incorrectly argues that displays of power and resolve by the
United States will discourage further resistance and lead more and more states to conclude that it is time
to get on our side45. Realists reject the notion that states are inclined to bandwagon because the
participating state would be conceding power to a rival state, which violates the self-help rationales of

44
45

Mearsheimer, John, Hans Morgenthau and the Iraq War: Realism vs. Neo-Conservatism, Open Democracy,2005, p.4
Walt, Stephen M., Keeping the World Off-Balance, America Unrivaled, p. 133

16

anarchical international systems. Moreover, the concept of bandwagoning runs counter to the centerpiece
rationale of balancing46 as subscribed to by most realists.
Equally strident in his criticism of the desire to universalize American ideals, was his criticism of
viewing this image as one in which the United States was inherently endowed with a superior moral
center. Namely, to conceptualize the national interest in universalistic moral terms47 was in itself
dangerous to the national interest of the United States. In 1947, he wrote a foreign policy based upon a
moral principle, which by definition relegates the national interest to the background, is of necessity a
policy of national suicide, actual or potential. The choice for Morgenthau then is the choice not between
moral principles and the national interest, devoid of moral dignity, but between one set of moral
principles derived political reality48
Similarly, Richard Ned Lebow, criticizes the neo-conservative desires for universal morality and
democratic principles. Lebow posits that these concerns should always come second to calculations
based on the balance of power between states and on threats of opportunities to improve their own
security49 . Lebow laments that since Thucydides, realists have been aware of the human tragedy, a cycle
whereby power in the international system becomes a double edged sword. The temptation as a unipolar
hegemon to extend moral superiority often leads to unwinnable conflicts, ultimately undermining the
hegemons power while weakening its position in the world order50.
It should be noted that realists and neoconservatives, in fact do share similar viewpoints in their
general dis-regard, if not mistrust for the United Nations and similar international structures. Realists have
a strong and deep history of opposition to the adherence of rules of international organizations, and agree
the United States should chart its own destiny when in it is in their best interest. Morgenthau believed that
the international arena is a state of anarchy in which violent and power hungry states constantly vie for
power and where international institutions do little other than prescribe norms and codes of honor that are
easily broken51.
However, while the neoconservatives and realists may share agreement regarding the efficacy of
the United Nations and other international organizations, realists are not so quick to support the notion of
unilateralism as supported in the Bush Doctrine. Joseph Nye insists that unilateral actions actually
46

See discussion of balancing in Hans Morgenthau, Politics Among Nations, Fourth Edition, Alfred A. Knopf, New York, 1967.
Morgenthau, Hans J, The Primacy of the National Interest, The American Scholar (Vol. 18,No. 2, Spring, 1949)p.210
48
IBID, p. 33
49
Lebow, Richard N, Classical Realism, in Dunne, Kurki & Smith, International Relations Theories: Discipline and Diversity,
Oxford University Press, Oxford, 2007, pp. 53-58
50
IBID
51
Morgenthau, Hans, Politics Among Nations, Fourth Edition, Alfred A. Knopf, New York, 1967.p.27 .
47

17

undermine the moral authority of the United States in its role as an international hegemon. He further
points out that a number of issues faced by the United States require global solutions which are inherently
multilateral concerns. While Nye does have some reservations regarding the ability of smaller nations to
use multilateral conditionality as a ploy to gain strength, he concedes that the best practice in the long run
is to work cooperatively with other nations in a multilateral environment. Here Nye suggests the ability of
the United States to work cooperatively with other nations increases its power to achieve outcome by
utilizing its soft power52 the ability to entice and attract and to inspire the dreams of others by
leading by example and encouraging others to seek out the same mutually beneficial goals.53
Finally, the realist paradigm questioned the argument of preemptive intervention. True to the
tradition of prior administrations, realist adamantly believed that Saddam Hussein and the threat of
terrorism could be contained. According to Mearsheimer, an examination of Iraqi recent foreign policy
demonstrates little evidence that Saddam Husseins regime was inclined to use weapons of mass
destruction or unilaterally attack the United States. In fact, Mearsheimer contends that if there is one
thing to be learned about Sadam Hussein, it is that he wanted to survive and remain in power54. For
realists like Mearsheimer, there was clear and decisive evidence to oppose the neoconservative notions of
pre-emptive engagement with Iraq and other terrorist organizations.
Conclusion
The study of international relations is supposed to tell us how the world works. Its a tall order,
and even the best of theories fall short.55 In 1998, Stephen Walts One World, Many Theories, suggested
that three approaches dominated the field of International Relations, realism, liberalism and an updated
form of idealism in new clothes - constructivism56. It is interesting that, although published in 1998,
there was little mention of the neo-conservative school. Yet despite the robust contributions of the three
fundamental schools of thought, neo-conservative thinkers dominated an important period of United
States history.
Emerging from the now much discussed common global threat of terrorism, these thinkers
proposed that the world as the traditional schools viewed it, was very different in reality and practice.
Rejecting the realist paradigms anchoring preceding administrations, the Bush White House envisioned a
52

For a more comprehensive discussion of Joseph Nyes conceptualization of Soft Power see Joseph S. Nye Jr. in Soft Power:
The Means to Success in World Politics.
53
Nye, Joseph, The paradox of American Power: Why the Worlds Only Superpower Cant Go it Alone, Oxford University Press,
Oxford, 2002 p. 138
54
Mearsheimer and Walt, An Unnecessary War, p. 54
55
Snyder, Jack, International Relations: One World, Rival Theories, Foreign Policy, Nov-Dec 2004.
56
Walt, Stephen M., International Relations: One World, Many Theories, Foreign Policy, Spring 1998.

18

need for an approach which walked a thin line between legitimate foreign policy conduct under the
currently constituted international norms and principles, and the illegitimate, and some would contend,
illegal practice of foreign policy and military response. Imploring the global community to adjust the lens
through which response to aggression is measured, the Bush Doctrine called for what many would call,
radical and substantive change.
The international community has largely viewed the post Iraqi and Afghanistan invasions and
occupation as a dismal and costly failure of the neo-conservative Bush Doctrine. Granted, the realist
critique makes a strong case condemning the rationales of the neo-conservative Bush White House.
Certainly, the outcomes of the Bush agenda would seem to support many of the realist claims. While the
neo-conservative agenda may have been proven to be lacking in the efficacy of its theoretical and
operational constructs, a critique of the more narrowly defined NSS Directive Bush Doctrine and its
rationales for both pre-emption and intervention are an altogether separate issue. To discount these
rationales on the basis of the failure of the larger scope of the neo-conservative program would be
capricious.
The NSS Directive posits a formulation from which to approach matters of threat and security. It
is also intended to provide and inform as to the overall response to a general category of threat,
specifically terrorism and weapons of mass destruction. Certainly constructed as a response to the events
of September 11, 2001 and the antecedent and ongoing threat of the Iraqi regime, its value can also be
seen in its ability to speak to the larger element of the ongoing threat of global terrorism as well as
provide a framework from which to judge the response to subsequent but similar threats (e.g. Iran, North
Korea etc.).
Here I will argue that the NSS Directive known as the Bush Doctrine, while perhaps flawed in its
application, correctly perceived the nature of the emergent terrorist threat and constructed an effective
apparatus and theoretical framework from which to respond to ongoing security threats. As was discussed
in some detail, and again I will argue here, that the nature of the current threat left the traditional norms
and practices (The UN Charter, International Law and Just War traditions) wholly incapable of
responding adequately and no less expeditiously in the face of global terrorism and its core values.
Much of the case built by the Bush administration centered on the notions of pre-emption in the
face of an imminent threat and the reserved right of a sovereign actor to act in a unilateral fashion
should the international community fail to proactively come to terms with a contextually changed threat
construction. The call made by the Bush administration to re-evaluate the normative criteria challenged
the international community to sever the roots of traditional norms and principles in favor of a new
19

framework erected as a reflection of new threats. It is patently obvious that this pathway was not
supported by most thinkers57.
While familiar norms
and principles continue to dominate international relations, so to do familiar theories about how the world
works still dominates academic debate. In the place of new context replacing old realities, political
scientists and IR theorists simply adjust old theories to meet the needs. I will contend here that the old
theories coupled with old norms and principles are wholly incapable of effectively responding to the
deep and troubling global security threats, much less tell us how the world works.
The case against realism acting as the guiding light in explaining a contemporary world, is one
that strikes at the very core of their belief system that international affairs is a struggle for power among
self-interested states. Contemporary realities challenge and undercut the realist concept regarding balance
of power. The belief that weaker states will ally to protect themselves from stronger ones and thereby
form and reform balance of power has certainly not been evidenced in the post-cold war era. No
combination of states or other powers have aligned to challenge the United States militarily, and there is
no evidence of a balancing coalition emerging in the near future. Even more damaging is that the United
States, if not the Bush administration, declared war on a non-state actor terrorism and specifically, al
Qaeda. This provides realists with a difficult explanatory challenge. The contemporary realities of the
international landscape seemingly conspire to damage the core notions of the realist doctrine.
While some may contend that neo-conservatism has passed from the scene as a serious discourse
in International Relations theory as but a momentary aberration, there remains a crucial challenge to
realism. Specifically, can the theoretical analytic positions claimed by realists be defended in the context
of both normative as well as strategic grounds, and more precisely, can the realist notions while cogent
enough as theory and applicable enough for the time periods preceding the end of the Cold War, become
sufficiently operational as a realistic tool from which to address todays international order and growing
threat of global terrorism.
To be sure, it is questionable whether leading realists have the capacity or will to fully
acknowledge that the global threat of terrorism requires a fundamental shift in theory and more
importantly practice. John Mearsheimers comments seem to reflect the inability of realists to grasp the
57

While it is an altogether theoretical argument, which will not and is not explored here, it is my opinion that the international
community allowed the perceived, if not evident rationale for the invasion of Iraq for the purpose of regime change to influence
the more explicitly defined parameters and justifications for pre-emption rather than a commentary on the quality and ultimate
outcomes of the pre-emptive intervention itself.

20

changing face of international security requirements. Mearsheimer posited, realism is really about
relations among states; especially among the great powers, Al-Qaeda is not a state, its a non-state actor,
which is sometimes called a transnational actor and as such does not by its very nature constitute a reordering of balance of power theory58. Unfortunately, the rejection of an objective fact that the terrorist
threat is real and plays an ever increasing international role, continues to call into question the ability of
the realist paradigm to address the issues of contemporary and practical relevance.
Despite all of its failures and missteps, the neoconservative agenda and movement inspired
sufficient political and social mobilization in its ability to become not only the preferred policy of those in
power, but encouraged an energized and faithful public electorate. Although realistic thinkers may feel
vindicated, crucial challenges remain. Although clearly beyond the dimension of this paper, it is
interesting to consider what will emerge as an operational approach to International Relations Theory.
While the Bush Doctrine failed to contemplate fully the impact of its rationality in its entirety, the
National Security Strategy represented a pragmatic approach to security strategy in the face of a threat
which is emerging and refuses to play by the rules of the game. The nature of the enemy has changed.
The nature of the threat has changed. As a result these changes necessitate a foreign policy and security
strategy which adjusts a response to the enemy as a reflection of a changed threat. When considering the
stated purpose of international terrorist groups, the United States cannot rely on purely reactive measures.
Catastrophic attack must not be the barometer by which pre-emptive measures may be deployed. Prudent
states reserve the right to act in the interest of their sovereign society. As a result, the 2002 National
Security Strategy of the United States and its call for pre-emptive military intervention in reaction to an
identifiable threat was, and may very well still be, a necessary response and a necessary method to deter
the threat of terrorism and the deployment of weapons of mass destruction.

58

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

21

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