Let's look this thing in the eye once and for all.
   --Arundhati Roy

Gen. Richard Myers, chairman of the Joint Chiefs of Staff, warned before the war that, despite the military's best efforts to prevent civilian casualties, "people are going to die." Given this knowledge aforethought, the Administration cannot continue to pretend that the civilian deaths in Iraq were accidental. The mother killed in a Baghdad bomb blast holding her baby so tightly they could not be pried apart, and the thousands of other innocent Iraqis killed in the war, were the victims of intentional homicide, however accidental or acceptable their deaths may have appeared on Fox News or CNN.

There is one exception to the prohibition against taking innocent human life, recognized by both our own principles of criminal jurisprudence and international rules of warfare. Deadly force may be used in self-defense even when innocent people will be killed in the combat required to defeat the aggressor. Although international rules of warfare prohibit the purposeful targeting of civilians, even in a defensive war, the law makes an exception for the incidental or "collateral" killing of the innocent because civilian casualties are frequently unavoidable in mounting an effective military operation against the enemy.

However, when a nation acts in self-defense before it is actually attacked, international law requires an imminent threat. As statements by CIA director George Tenet have made clear, the White House did not even have probable cause to believe its own prewar claims, both express and implied, that the danger was imminent. Intelligence analysts "never said there was an 'imminent' threat," Tenet insisted in a February 5 speech at Georgetown University defending his agency. But according to the President, the United States had the right to go to war on a lesser standard than imminence. The Administration's position, first announced in its 2002 National Security Strategy, is that military force can be used pre-emptively whenever a threat, however remote or improbable, involves the use of chemical, biological or nuclear weapons. As President Bush argued in a February 8 interview with NBC's Tim Russert, "It is essential that when we see a threat, we deal with those threats before they become imminent. It's too late if they become imminent."

The elimination of the longstanding requirement of imminence by the Bush doctrine of pre-emption has been roundly condemned by UN Secretary General Kofi Annan, who called it a "fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years." But for many Americans living in the shadow of September 11, common sense and simple prudence seemed to dictate a policy that says, in effect, we should kill them before they can kill us. What critics of the Bush doctrine failed to make clear is that the concept of imminence is essential because it actualizes the most basic moral principle upon which not only the United Nations Charter but our own constitutional system of government, is based: the sanctity of innocent human life.

The self-defense exception to the general principle protecting innocent life is not based on any cost-benefit calculation. Rather, the killing of innocent people is excused as a concession to human weakness. Self-defense in the face of an imminent threat of being killed is what Justice Oliver Wendell Holmes called one of those "can't helps" of life. No community of human beings facing an immediate threat of attack can reasonably be expected to allow themselves to be killed in order to avoid killing innocent people in the aggressor nation. Such extraordinary self-sacrifice is not demanded of ordinary mortals.

But when a threat is not imminent in the sense that there is sufficient time to protect ourselves without killing innocent people--by using more rigorous weapons inspections, for example--we lack that "can't help" that Justice Holmes suggested was a condition for sacrificing human life in a civilized society. To say, as the President continues to insist, that he had "no choice" is to make the absurd and horrific claim that he had no choice but to kill thousands of innocent people. We reply that the moral principles contained in our criminal and constitutional jurisprudence forbid the use of war to check tyrants and terrorists who threaten us with death unless there is such a clear and present danger to the nation that taking the lives of innocent men, women and children is the only way we can save our own lives.

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