Foreign affairs

Cross posted at Political Arguments.

Everyone's been linking to the Security Scholars for a Sensible Foreign Policy, and I won't be denied. Among the hundreds of foreign policy specialists who've signed "an open letter opposing the Bush administration's foreign policy and calling urgently for a change of course" are many from my current home, the University of Chicago.

On the errors of the Bush administration's foreign policy, I defer to the security specialists. But I must admit that the letter leaves me unsatisfied. It's true that it's not these scholars' job to judge the Iraq war on moral terms. But the conversation on the inappropriateness of the intervention seems incomplete. Oddly enough, liberals have clustered around the Realist camp, arguing against the war because it was costly, pointless, and harmed American interests. This has leftthe neocons in the Bush administration to make the moral case for intervention, replete with paeans to duty, sacrifice, and democratic peace. The two sides are talking past each other.

Read more!I'll allow, arguendo, that the war in Iraq was conceivably justifiable. But it was not justified. There is a world of difference between the two. Touting the fact—which no reasonable and decent person can deny—that Saddam Hussein was a bad man who should have been deposed, captured, and tried as an international criminal only carries the argument so far. It is also important that the war be actually justified in morally compelling terms, or at least that point to a morally compelling goal.

As such, this war was a missed opportunity. It was sold to the world and to the American people as a realist's war: preemptive or at least preventive, WMD's and all. That case proved to be false, and was questioned from the start. Only as an afterthought were Hussein's crimes against humanity mentioned, and only recently have they been highlighted in the government's case for a continued presence in the region.

But even if the removal of Hussein had been the war's objective, where would that have left us? If waging such a war defines a maxim, what are we at the same time proclaiming as a universal law? Neocon defenders of the war vociferously refuse the appeal to legality. "September 10 talk in a September 12 world." The war—all wars—are political, not legal, and the "War on Terror" was not a law-enforcement operation.

Indeed it was not. A law-enforcement operation requires that there be laws in place to be enforced. The Bush administration's recourse to the WMD justification was natural because only in the discourse of preemptive combat was there enough legal clarity to make a solid case for military action. There are other such discourses, but they were not so readily available. The discourse of genocide, for instance, is now being tested in Darfur. But mere dictatorship did not rise to a justiciable offense.

Yet, before Nurenberg, neither did genocide. Of course, World War Two was another realist's war; it was fought to contain an imperialist Germany, not to stop the Holocaust. And it's been persuasively argued that the legal precedent for the Nurenberg trials was tenuous at best. (The exchange on this matter between Lon Fuller and H.L.A. Hart is exemplary both for its rigor and candor.) Yet an act of illegality, or rather a-legality, was instrumental in crafting a legal order that, for once, recognized that there were moral limits to war and sovereignty and that human decency was the most basic and undeniable ground of political legitimacy. At Nurenberg not only were Nazi war criminals sent to jail or the gallows, but a whole institutional and legal structure put in place to address future war crimes and crimes against humanity.

An intervention in Iraq could have taken this route. Even an illegal operation, by international standards, could have redeemed itself by giving way to legal institutions to address future atrocities. The insistence of the political nature of the war in Iraq or of the "War on Terror" is not a principled position, but an excuse to keep American power unchecked. It leaves the United States with a much diminished moral arsenal. It is an invitation to ad hoc morality.