03/08/2007 04:38 pm ET Updated May 25, 2011

How to Stop Worrying and Learn to Love Preemptive Strikes

The UCLA nuclear threats conference concluded Wednesday with plenty of talk about the threat of Iran, North Korea, and nuclear terrorism. But there was very little support for a preemptive military response. Effective diplomacy was the coin of the realm. Former Defense Secretary William Perry chastised the Bush Administration for not talking enough to the bad guys. "Distracted by Iraq and hobbled by a theory of no direct talks, the Bush Administration has failed badly with both North Korea and Iran." Nobel Laureate Thomas Schelling said that any talk of preemptive strikes against Iran only exacerbates Iran's need for nuclear build up to deter the United States. Others warned that the surest way to maintain Ahmadinejad's hold on power is to bomb Iran's nuclear facilities. The diplomatic success stories of Libya, Ukraine, Kazakhstan and Belarus were cited again and again as the model to emulate in dealing with future threats of nuclear proliferation.

But then there were a few who did suggest the appropriateness of preemptive strikes. Berkeley political scientist Bob Powell said that defense and deterrence were synonymous and that the real question was the threshold of confidence needed to justify preemptive action. "When an attack is imminent then there is almost no doubt and it is not hard to imagine a preventive strike. ... But if you consider the cost of waiting, then the threshold needed to justify an attack is going to go down." But he concluded that the costs of preventing the spread of nuclear weapons are very high and we should learn to live with nuclear states. We may not like it, but we can live with it.

Those comments resulted in a smack down by Tel Aviv international law professor Yoram Dinstein. He began by saying his remarks "would be the only words of legal sanity you are going to hear at this conference." He summarized the U.N. Charter rules on self-defense and argued that "unilaterally no state has a right to respond to a mere threat." Dinstein then offered a way out of the international law box by using what he called "creative accounting." Rather than rely on preemptive strikes, he said one should utilize the tools of incidents, interceptions, and ongoing engagements.

An incident supposes that at some point Iran will misstep and there will be a minor skirmish precipitated by Iran. That incident is all the legal justification you need to respond in self-defense. An incident was used as sufficient provocation in the recent Israel-Lebanese war, and it could have been used in Kosovo because of cross-border skirmishes.

An interception presupposes that the other side has launched something first, which then justifies military action. Dinstein said the Japanese attack on Pearl Harbor could have been met with an American interception long before they ever reached Hawaii. Self-defense does not require the consummation of the first strike. It's not clear when a first strike begins, but it begins before the moment it ends.

And his third tool was ongoing engagements. The Iraq war was legal as part of the ongoing engagement which began with the Persian Gulf War. The Israeli strike on nuclear facilities in Iraq in the early 1980s was part of ongoing hostilities between the two countries spanning fifty years.

What are the ramifications of this creative legal accounting? It's not clear. But presumably a strike on North Korea could technically be justified as part of ongoing hostilities in the Korean peninsula spanning decades. Presumably terrorist bus bombings in Israel are a sufficient incident to justify self-defense against the state sponsors. Iranian support of Iraqi insurgents could justify retaliation by Iraq and its allies. And perhaps Ahmadinejad's incitement to genocidal attack on Israel is enough to justify an interception. Does a call to destruction constitute the first constituent act in the delivery of that destruction? Using creative accounting, one can stop worrying and learn to love a preemptive strike. After all, it's not really preemption. It's an incident, interception, or ongoing engagement.