HOOVER INSTITUTION
ON WAR, REVOLUTION AND PEACE

GEORGE P. SHULTZ
DISTINGUISHED FELLOW

JAN 20 2006

January 18, 2006

Dear Henry,

I'm glad to hear that you're on the road to recovery. What a freak accident. I find that as I get older my balance is not what it used to be, so I always use the handrails and walk carefully. I have had several close calls with falls, so I know it can happen all too easily.

I am also glad to hear that you might be willing to talk at our forthcoming conference on preventive force. As I mentioned on the telephone, this project started at Hoover with the notion that the subject needed to be talked about and digested. Our first conference was successful and so we move on to the Woodrow Wilson School at Princeton. If this works well, we might hold future meetings in Europe and Asia with basically educational objectives in mind.

We would certainly hope that you could come to the entire conference. We would particularly invite you to be the speaker on the night of Wednesday, March 15. I will be there for the whole conference and Charlotte will also be in your audience. She's one of your great admirers.

Enclosed is a booklet we prepared as background for the first conference. This will soon be revised and printed up for the Princeton meeting. I've also enclosed a copy of the tentative program.

Your campmates at Mandalay will carry spears next Thursday at the Club as we give a production of Gilbert and Sullivan's "Trial by Jury." Dave O'Reilly will sire and some of your campmates and I will be "spectators." At various intervals during the performance, we will get up and tell jokes. They are not repeatable.

Charlotte joins me in sending along our warm best wishes.

The Honorable Henry Kissinger
Kissinger Associates, Inc.
350 Park Avenue, 26th Floor
New York, NY 10022-6022

STANFORD UNIVERSITY ♦ STANFORD, CA 94305-6010 ♦ TEL: 650-725-3492 ♦ FAX: 650-723-5441

PREVENTIVE FORCE CONFERENCE

WOODROW WILSON SCHOOL OF PUBLIC AND INTERNATIONAL AFFAIRS
PRINCETON UNIVERSITY

MARCH 15-16, 2006

AGENDA

The Princeton Project on National Security, in cooperation with the Hoover Institution and the Stanford Institute for International Studies, will convene a small group of scholars and practitioners to discuss the preventive use of force in cases short of war. Building on the findings of the initial Preventive Force Conference hosted by the Hoover Institution in May 2005, this meeting will explore the circumstances under which limited uses of force should be considered, specifically: the goals of U.S. policy; the legal and procedural rules governing such uses of force; the intelligence required to justify action; and the menu of meaningful options for implementing preventive actions.

WEDNESDAY,

MARCH 15

2:00 p.m. – 2:15 p.m.

introduction

Location TBD

Anne-Marie Slaughter, Dean of the Woodrow Wilson School of Public and International Affairs, Princeton University

Abraham D. Sofaer, Senior Fellow, Hoover Institution

2:15 p.m. – 3:45 p.m.

Discussion Session 1

Location TBD

"Scenarios That Might Require Limited Use of Preventive Force"

* In what policy situations would one consider preventive use of force short of war? Ethnic conflict? Humanitarian crisis? Forcible capture of indicted war criminals?

* What is the viable menu of options?

* Is there a sliding scale of proportionality?

Chair:

**James B. Steinberg***, Dean of the LBJ School of Public Affairs,
University of Texas at Austin

Participants:

**Aaron L Friedberg***, Professor of Politics and International Affairs,
Woodrow Wilson School and former advisor to the Vice President

**Ambassador Edmund J. Hull**, Diplomat in Residence, Woodrow Wilson School and former U.S. Ambassador to Yemen

**M. Elaine Bunn***, Distinguished Research Fellow, NDU

* Invited

1

WEDNESDAY,

MARCH 15

4:30 p.m. – 6:00 p.m.

Public Affairs Lecture

Dodds Auditorium, Robertson Hall

The Honorable George P. Shultz, Distinguished Fellow, Hoover
Institution

6:30 p.m. – 9:00 p.m.

Reception and Dinner

George P. Shultz '42 Dining Room, Robertson Hall

Remarks by TBD

THURSDAY,

MARCH 16

9:00 a.m. – 10:30 a.m.

Discussion Session 2

Room 300, Wallace Hall

“Military Capabilities and Other Options”

* What kinds of forces are needed for the possible missions discussed in the opening session?

* What is technically or militarily feasible?

* What sorts of things are being done, and how well?

Chair:

General John Keane, U.S. Army Retired*, former Vice Chief of Staff, U.S. Army

Participants:

Brigadier General Mark Hertling, U.S. Army*, Deputy Chief of Staff, G-3, U.S. Army Europe and Seventh Army, Germany

Admiral Gregory Johnson, U.S. Navy Retired*, former Commander, U.S. Naval Forces Europe and Africa

General David Petraeus, U.S. Army*, Commanding General, U.S. Army Combined Arms Center and Fort Leavenworth

10:45 a.m. – 12:15 p.m.

Discussion Session 3

Room 300, Wallace Hall

“Intelligence Required for Preventive Use of Force”

* How strong must intelligence be to justify action?

* Are we capable of developing adequate evidence to support preventive action?

* What lessons can be learned from our experience in Iraq?

Chair:

Participants:

Sidney Drell*, Professor Emeritus, Stanford University

Ambassador Robert Hutchings*, Diplomat in Residence, Woodrow Wilson School and former Chair of the National Intelligence Council

* Invited

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THURSDAY,

MARCH 16

12:15 p.m. - 1:15 p.m.

Lunch

Room 300, Wallace Hall

Remarks by TBD

1:30 p.m. - 3:00 p.m.

Discussion Session 4

Room 300, Wallace Hall

"Legitimacy, Legality and Institutional Support for Limited Use of
Preventive Force"

* With regard to the specific uses of force examined in the earlier panels, what are the unilateral or bilateral options? UN? Regional Organizations? Authorizing specific countries?

* What is the legal process to get to lesser uses of force?

* What is politically possible?

Chair:

Participants:

Robert C. Orr*, Assistant Secretary General for Policy Coordination and Strategic Planning, United Nations

TBD (Military Lawyer on legality of limited uses of force)

Ruth Wedgewood*, Edward B. Burling Professor of International Law and Diplomacy, Johns Hopkins University School of Advanced Int'l Studies

Marc Weller*, Deputy Director of Studies, Centre for Public International Law at the University of Cambridge

3:00 p.m. - 3:15 p.m.

Break

3:30 p.m. - 5:00 p.m.

Discussion Session 5

Room 300, Wallace Hall

"Conclusions"

* Offer conclusions based on the Hoover Institution Issues Paper and the meeting discussions

Chair:

The Honorable George P. Shultz*, Distinguished Fellow, Hoover Institution

Participants:

The Hon. Howard H. Baker, Jr.*, former U.S. Senator from Tennessee

Coit S. Blacker*, Director, Stanford Institute for International Studies

Anne-Marie Slaughter, Dean, Woodrow Wilson School

6:30 p.m. - 9:00 p.m.

Reception and Dinner

Remarks by TBD

* Invited

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MAR. 10. 2006 11:13AM

GEORGE SHULTZ

NO. 941 P. 2

IN SEARCH OF SUSTAINABILITY

Woodrow Wilson School
Princeton University

March 15, 2006

George P. Shultz*

We live at a time of unprecedented promise. Freer and more open economic and political systems of governance are gaining ground and the evidence is clear that these developments lead to more prosperous and more hopeful lives.

But terrorist attacks on civilian targets in other countries remind us of our own 9/11, that a war is going on and that we in the United States are very much involved. Attention is focused on Iraq for understandable reasons, but the threat reaches far beyond that. Insecurity is the enemy of the promise and the hope. So we must focus on the threat and deal with it effectively.

In my own thinking about this war, I find it useful to keep three ideas in mind. The first is symbolized in the Great Seal of our republic, where the eagle holds in one talon an olive branch, showing that the United States will always seek peace, and in the other talon, the eagle holds arrows, showing that the United States understands that if you are to be successful in seeking peace, you must have strength. The fact that the arrows number thirteen shows how ancient this message is. Strength and diplomacy are complements rather than alternatives. They go together.

* Thomas W. and Susan B. Ford Distinguished Fellow, Hoover Institution, Stanford University

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My second idea is to emphasize the reinforcing nature of political openness and increases in income per capita – prosperity – that come from use of the market, recognition of private property, and the rule of law. Democracy more likely takes hold when earned incomes are rising, and markets flourish best in open political environments.

My third idea is to recognize that this war has already gone through two quite different phases. Today a third phase is under way that also has different characteristics. This phase will continue to be with us and is the long war identified by the president and others even shortly after 9/11.

During the first phase of this war, going back certainly to the 1970s, we were essentially passive. We were hit by increasing numbers of terrorist acts, but, though there was a gradual buildup of concern, we did nothing significant in response to these attacks. Then September 11 woke America up. We reacted powerfully, putting in place a different philosophy and taking a great variety of actions to implement that philosophy. We are now four and one-half years away from that calamitous event. The war continues but the juices of reaction to 9/11 have subsided. We must now realize that the job in a third phase of the war – necessary if we are to be successful – is to put our efforts on a sustainable basis, gaining broad support at home and abroad. As in the cold war, public understanding and support will be as crucial as persistent pressure and the will to win.

## The Passive Phase

The war we are in started a long time ago although we did not recognize its nature until recently. We witnessed the assassination of Israeli athletes at the Olympic games in Munich in

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1972, the assault on our embassy in Tehran with Americans taken hostage in 1979, the assassination of President Sadat in 1981, the car bomb that killed 243 U.S. Marines in Lebanon in 1983, the attack on the World Trade Center in 1993, the bombing of our embassies in Africa, and the attack on the USS *Cole* in the late 1990s. We made no serious response to any of these bloody assaults. In the Reagan, Bush 41, and Clinton years, we hit back once or twice using air strikes or cruise missiles. The enemy was not impressed.

By the mid-1990s, we knew about Osama bin Laden and al Qaeda. Just as Hitler laid out his plans in *Mein Kampf*, Osama bin Laden made no secret of his program. As in the case of Hitler, his announced objectives were not taken seriously enough.

There was, however, a building concern about escalating terrorism. As a hawk on the subject in the Reagan era, my comments in a 1984 speech were nervously received. I said then that:

* We must reach a consensus in this country that our responses should go beyond passive defense to consider means of active prevention, preemption, and retaliation.

* The questions posed by terrorism involve our intelligence capability, the doctrine under which we would employ force, and, most important of all, our public's attitude toward this challenge. Our nation cannot summon the will to act without firm public understanding and support.

* We cannot allow ourselves to become the Hamlet of nations, worrying endlessly over whether and how to respond.

The monstrous acts of al Qaeda also drew a response from the UN Security Council. The principle of state accountability was embedded in the law of nations. After the bombings of our

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embassies in 1998, the Security Council stressed "that every Member State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts...." [Res.1189]

On December 29, 2000, the Council strongly condemned "the continuing use of the areas of Afghanistan under the control of the Afghan faction known as Taliban...for the sheltering and training of terrorists and planning of terrorist acts....[Res. 1333]. By the end of the 1990s, we had begun to glimpse the reality. And we were just beginning to understand that the threat was to far more than the Middle East. Looking back at all those terrorist attacks of the 1970s, 1980s, and 1990s, we could see that our enemy targeted every aspect of the international system: tourism, commerce, air travel, world finance, the United Nations, embassies, the commitment to the principle of diplomatic immunity, and the sovereign and territorial integrity of states. This was Islamism – a radical, aberrational deviation from Islam – with an ideology that set itself violently against every element of the international state system, the centuries-old basis for a cooperative world order.

Nevertheless, in the first phase of this war, the terrorists had a completely free rein with no real effort made to carry the fight to them, let alone defend ourselves aggressively.

What can we learn from this experience? First, passivity does not lead to a cessation of attacks. On the contrary, passivity only encourages our adversaries to believe that they can do as they choose without consequences to themselves. The terrorists were getting a free ride from us, even as their attacks grew greater in frequency and devastating power. Second, the concept of law enforcement, while important to maintain, is not nearly sufficient in an age of attacks, usually planned in and orchestrated from other

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countries, that have devastating consequences for us. Third, the attacks came with little or no warning, highlighting the importance of vastly improved intelligence capabilities. We learned that we must respond, and our responses must be effective.

## The Reactive Phase

The second phase began on September 11, 2001. Americans woke up. I was reminded of Admiral Yamamoto, who led the Japanese attack on Pearl Harbor and knew something about the United States. After the attack, he said, "We have awakened a sleeping giant and instilled in it a terrible resolve." Osama bin Laden also awakened a sleeping giant.

We began, as a people and a government, to recognize the extent of the danger, to pull together our facts and assessments, and to describe the nature of the challenge as best we could. Still we were hesitant. The president rightfully visited a mosque to show that we did not regard this as a religious war with the Muslim world. We did not know what to call it, even though we knew that as long ago as 1997 Osama bin Laden had issued a declaration of war on America and pronounced it every Muslim's religious duty to kill any and every American citizen. The president called it a war on terror. He would later say we were at war with "Taliban-like" radicals. Late last year the president decided to tell it like it is: a war waged by terror-using Islamists. And in his State of the Union message on January 31, 2006, President Bush said,

> ...One of the main sources of reaction and opposition [to the spread of freedom] is radical Islam – the perversion by a few of a noble faith into an ideology of terror and death....Terrorists like bin Laden are serious about mass murder – and all of us must take their declared intentions seriously....

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We changed our mindset quickly after 9/11, switching to a war mentality. We understood that we would have to use force, and we summoned the will to do so. In war, you have an offense and a defense. You harden targets at home and you use intelligence aggressively to find out about plots so that you can prevent them from taking place. You have an offense designed to take the action to the enemy and put the fight in their territory.

The initial action in Afghanistan was widely supported and we had the good sense early on to put a credible Afghan face on everything taking place. Afghanistan, a failed state seized in the 1990s by the Taliban and then commandeered by al Qaeda, has been returned to legitimacy as a sovereign state in the international system. Let us not kid ourselves. We and the Afghans have a big job to do on the economic as well as the political front. But the Taliban and al Qaeda, though they continue to cause trouble, are remnants of what they were. Our NATO allies have committed themselves to take over most of the security functions from American forces and increasingly are on the ground and engaged.

Iraq is a very different case - complex, difficult, and, at once, discouraging and promising. Sectarian issues are fanned by violence fomented by Iraq's enemies and designed to create the constant danger of escalation. At the same time, there are many signs of progress which themselves put the objectives of the terrorists at risk. Progress is necessary for success and is therefore a prime target. The stakes could not be higher for them and for us. I will say more on Iraq and the Middle East in a moment.

In addition to actions in Afghanistan and Iraq, the idea of using force to prevent attacks, particularly in the light of the destructive power of weapons of mass destruction, became a formal part of national security policy in the September 2002 National Security Strategy of the United States.

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Our reaction to 9/11, then, produced many changes but two big ones are identified here. Our adversary has been clearly identified: a radical brand of Islam ready to use the murderous weapon of terrorism. And, our mindset has changed from passive reliance on law enforcement as our means of response to the emergence of a war mentality with an offense and a defense and a willingness to use force to prevent attacks on us and our allies.

## Phase Three: Creating a Sustained Effort

A lot has happened since 9/11 and a lot of progress has been made. Even as we reacted to 9/11, we could see that this war would go on for a long time. We are gradually moving toward emphasis on the sustainability necessary for victory.

So let us now review some of the things that have happened already and that need to be extended and sustained.

## Intelligence

We see the profound importance of an intense and sustained effort to improve our intelligence capability. The failure to find stockpiles of weapons of mass destruction in Iraq has highlighted this necessity.¹ So, too, has retrospective analysis of the gaps in intelligence collection and the misreadings in our intelligence analysis in the period just before 9/11. Can't anyone recognize the dots, let alone connect them? The task is not easy.

¹ We have also recognized that Saddam Hussein had WMD, had used WMD, and was successfully convincing the Iraqi people, other regimes in the region, and intelligence services of the world that he still possessed them - even as he had turned to a "virtual" WMD program that quickly could have been reconstituted as soon as he gained international support for lifting sanctions against him.

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Major surprises dot the landscape of the twentieth century.²
Remember Pearl Harbor. But even more importantly, we are
coming to realize that ever since the Vietnam-Watergate era we
ourselves had, piece by piece, denigrated, dismantled, or impeded
our intelligence capabilities to a dangerous extent.

We must do a better job. The need is clearly recognized and
remedial action is apparently under way. Multiple sources and
competitive analyses are among the watchwords. I am most
impressed with the recognized need for capable and creative
people and a realization of the importance of open information. Be
in no doubt: the future of preventive action requires confidence
that we have intelligence on which we can rely.

I believe an additional step is needed to help us take
advantage as much as we can of everything that is openly available
and to do it in a way that improves our ability to understand what
that information means. We should increase, as Secretary Rice is
trying to do, our foreign service resources and establish new small
consulates in key places around the world. We must recognize
security concerns, as the recent loss of a foreign service officer in
Karachi demonstrates. We need savvy people who speak the
language and who come to know what is openly available. Call
them diplomatic boots on the ground. Certainly people at the
center must put the pieces together but we need more people out
around the world who understand what the individual pieces mean.

Finances

An aggressive effort continues, with leadership from the
United States and the Treasury Department, to track down the
sources of finance for the terrorists and to dry up their access to
money. This financial effort has a direct impact and it also has the

² Size the informative discussions in Ephraim Kam, *Surprise Attack, the Victim's Perspective* (Cambridge, MA: Harvard University Press, 1988).

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indirect effect of putting potential financiers on notice that they are
being watched. Tracking the money also helps us understand our
adversary by learning who is talking to whom and which groups
are involved with each other, and even to identify individuals or
groups of terrorists. All this is taking place as an international
effort and must be sustained that way for the effort to succeed.

We must curtail the finances of the terrorists. This is very
tough at a time when oil prices are high and staggering revenues
are flowing into countries that are clear enemies. For these and
many, many other reasons, we should learn how to use less oil. A
major national effort is called for. As the president put it in his
State of the Union message:

> America is addicted to oil, which is often imported from
> unstable parts of the world....So tonight, I announce the
> Advanced Energy Initiative...to push for breakthroughs in
> two vital areas. To change how we power our homes and
> offices...and to change how we power our automobiles.

So sustained work on finance is essential to success in this area and
learning how to use less oil will help enormously. The effort to
find ways to use less oil needs to recognize that, as these efforts
succeed, the price of oil may decline. Sustainability means
alternatives must meet a tougher market test than posed by a price
of oil that is high.

Stop the Proliferation of Devastating Weapons

The Pakistan-based worldwide black market in nuclear
weapons components and know-how run by A. Q. Khan has been
uncovered and eliminated, an intelligence and diplomatic triumph
and a demonstration of willpower to confront Pakistan authorities
even as we depend on their help. Our willingness to use force after

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9/11 also influenced President Musharraf to come quickly to the side of the United States against the terrorists. Without our action, Pakistan might have fallen under Islamist terrorist rule, with Pakistan's nuclear weapons arsenal under their control. Continued vigilance is essential.

Libya, in the context of all this, made the momentous decision to give up all its weapons of mass destruction: a triumph of intelligence and diplomacy backed by strength, including the preventive seizure of a vessel from North Korea. The amounts of material turned over to us far exceeded what we or the rest of the world believed Libya to possess, another spur to our need to improve our intelligence capabilities. With its decision, Libya now has a chance to rejoin the responsible international community. The decision would not have been made if U. S. strength and diplomacy had not impressed upon Libya the reality that any outlaw regime that attempts to gain WMD is on a losing path.

Iran, as North Korea, now poses a great threat as it seeks to gain nuclear weapons capability. With U.S. help, the European Union and the International Atomic Energy Agency are actively engaged in the effort to turn Iran back from this course. All five UN Security Council permanent members voted in the IAEA to refer the Iran problem to the Security Council. What further action will be taken is uncertain. Just as France declares without qualification that Iran seeks a nuclear weapon, and the IAEA reports on multiple Iranian deceptions, China is negotiating a further deal for Iranian oil.

Iran seems convinced that its actions, as in restarting its enrichment facilities, will have no adverse consequences. They see no strength behind the diplomacy. We must be ready to summon the will – and persuade others to join us – to use economic and political strength – and ultimately force – to deal with this situation if multilateral diplomacy and collective security are to be credible.

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Beyond the problems presented by Iran and North Korea, an energetic and creative effort is needed in the area of nuclear weaponry. In addition to nonproliferation efforts currently under way, we should consider promoting the establishment of identified places that can enrich uranium. They could be operated by the countries involved with an international presence and a statement that any country wishing to have peaceful nuclear power can get enriched uranium at a reasonable price. The objective is to get control of the enrichment process on a world scale. Efforts in this direction are under way and they deserve support.

## Movement in the Middle East

The study of demographics tells us a lot about where around the world frustrations almost inevitably come from. Countries in the Middle East have fertility rates that put their populations out of control, with huge numbers of young people who have nothing to do and whose lives are detached from the kind of reality that the act of working imparts. One of the reasons for this is the culture of denying women responsible and productive roles in the way society is operated. These regimes need to change and the effort to bring more economic and political openness is a critical ingredient in this third stage of the war.

Indeed, all across the Middle East there are signs that the U.S. conviction that the region - beset by dysfunction and the pathology of terrorism - has to be transformed is having an effect. The Syrian regime has been unmasked as the oppressor of Lebanon; its troops have been pulled out of Lebanese territory. And its ruler, Bashar Assad, is feeling increasing international pressure over his regime's role in Mafia-style murders and intimidation in Lebanon.

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Lebanon has been set on the road – no doubt a road made more difficult by the armed presence of Hezbollah – to regaining its sovereign statehood. This has been a goal of the United States ever since Syrian troops occupied Lebanon in the late 1970s.

Now, with the United States and France cooperating on a remarkable UN Security Council Resolution (1559) in September 2004, Lebanon has hope again. Lebanese leaders have said openly that this chance to restore Lebanon's sovereignty could not have happened if the United States had not gone into Iraq to depose Saddam Hussein and lay the foundation for Iraq itself to regain legitimacy in the international state system.

There have been small but significant steps toward opening the political system in Egypt, Saudi Arabia, and the Gulf states. For example, women can now vote and hold office in Kuwait. The Israel-Palestine conflict has passed a turning point with Israel's unilateral ending of its occupation of Gaza and the withdrawal of its troops. The Palestinians now face a defining moment: can they put in place a government able to maintain security, stop corruption, and credibly continue peace talks with Israel? To date, the answer is “no.” Gaza is in chaos and an Islamist terrorist faction dedicated to Israel's obliteration has won an election. What will come next? Will the moment come when the Palestinian people face up to the reality that their use of terror leads to misery and hopelessness? Will they create conditions that make it possible to achieve a two-state solution for the conflict, a solution that would extend the international state system's presence in the region? Meanwhile, Israel is looking to its own security with its policy of disengagement.

The key to further positive developments in the Middle East, and more broadly, is Iraq. Can Iraq become a stable country with a representative government and an improving and healthy economy? A severe test is before us. As the *Financial Times* editorialized (2/24) after the provocative bombing of the al-Askari

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shrine, "Iraq's future hit by a perfectly aimed blow." This was the ultimate provocator of civil war. There was an eruptive reaction but now a counter-reaction seems to be taking hold as leaders and their followers see that only the terrorists gain from the abyss of civil war. Sunni leaders must realize by now that they cannot win by violence, and Shia leaders that they cannot govern without an inclusive pattern of governance. An odd balance of blocking power may lead to the desperately needed government of national unity. With due recognition of all the clear problems, Iraqi political leaders have that chance to form a government regarded as legitimate, derived from the elections. Such a government can release the major potential of the economy by suppressing the sabotage of terrorists. We took far too long to put an Iraqi face on what we were doing in that beleaguered country, but Iraqis now have clear responsibilities. Our presence is there to support constructive efforts in a collaborative effort for success.

Meanwhile, we now know that a huge number of documents produced by Saddam Hussein's regime were captured. While these documents, for reasons hard to understand, have not been aggressively translated and exploited, enough has been done to show that in Iraq there were in existence three training centers for terrorists with apparently some 8,000 or so trainees. We must aggressively exploit these documents so that we can identify who the trainees are, learn the methods they have been trained to use and their connections to other countries, and, to the extent that these terrorists are operating in Iraq today, do everything possible to get them out of circulation before they go elsewhere.

The Middle East always captures the world's attention, never more so than now. The problems have never been more clear. The stakes have never been higher. And with all due recognition of the difficulties, the possibilities for positive developments have never been greater. To succeed, we need efforts that are sustained,

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combining diplomacy with strength of all kinds, and building on
the interplay of open political and economic systems.

The Need to Communicate with the Islamic World

The extensive Muslim riots of early 2006, claimed to be in
response to cartoons in a Danish newspaper published four months
earlier, dramatize the importance of supporting mainstream Islam
and preventing radicals from intimidating the mainstream. In
addition, they show the dangerous tendencies of dictatorial regimes
(Syria and Iran) to fan protests as a way to divert attention from
their own deep deficiencies.

But they also underline another reality: our need to do a
much better job of communicating with the world of Islam. At
Stanford University's Hoover Institution, we are privileged to have
all the archival material from Radio Liberty and Radio Free Europe.
We have drawn clear lessons from that experience and identified
areas of relevance to today's very different problem of
communication with the people of Islam. Among the lessons are
these:

* Construct a realistic sense of mission. While radical Islam is in a sense the problem, the mission needs to focus on helping what may be called mainstream Muslims to address the issues and take on the radicals. In the end, it is the Islamic community itself that needs to engage in this battle and we need to encourage that effort. We also know that radical Islamists cannot function without a surrounding population that acquiesces in, or can be frightened into, supporting or not opposing them. So our effort has to be to dry up the sea of support in which terrorists swim. That is the mission.

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* Study the target audiences carefully. We will need to differentiate among them. Words like "Arabs" or "Muslims" are deceptive because they conceal immense variety. Above all, pay attention to women. Because in some countries they are kept out of everyday life, they have huge amounts of time to watch TV at home where the morals police can't get at them. Women's content programming is essential. Something similar, but with very different content, should be designed for another vast audience, unemployed males who sit around at the corner coffee houses all day.

* While the broadcasters will need to undertake studies themselves, they will need a lot of help. Unfortunately, proficiency in languages and efforts at area studies have declined in the United States. What now passes for "Mid East Studies" is not at all satisfactory. This means a major effort is necessary to encourage universities to undertake scholarship in this field and to preserve and enhance all the ways in which the relevant languages are acquired by at least a reasonable number of Americans.

* Beyond the broad sweep of programs such as those now sponsored by Radio Free Europe/Radio Liberty, special efforts should be made to target audiences in Saudi Arabia, Egypt, Iran, the Muslim communities in Western Europe, and possibly Pakistan. The history of radical movements shows that a high proportion of them originate in one form or another in these areas.

* Monitor what people say and be ready to interact. Much of what passes for commentary is altogether delusional. The Middle East, always remember, is the

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world center for conspiracy theories. So some sort of
counter-conspiracy desk is needed. If we are candid,
open, and factually correct, we have a platform for
countering some of this delusional talk. Much of the
world of Islam has lost contact with reality, with the
relationship of cause to effect. Reality needs to be a
centerpiece in what we talk about.

o As part of the effort to connect people with reality, emphasis can be placed on the importance and the virtues of work and concomitantly on the necessity of economic policies that lead to expanding economies. Among the problems in the European Muslim community is the fact that, as estimated for some urban areas, well over half the men of Moroccan origin over the age of 40 were living on welfare of one kind or another and had little expectation of working. Work connects people with reality.

o Put emphasis on the importance of education in the basic sense of the word. Too much of what passes for education in the world of Islam is simply propaganda and doesn't prepare people adequately for tasks of work and tasks of critical evaluation of what they are hearing. Special incentives might be developed to encourage people to learn the English language.

o No matter how impressive our effort, it will never succeed so long as Arab regimes continue to pump out tons of daily propaganda that over recent decades has driven ordinary Arabs into a perpetual condition of hyper-inflamed rage at outsiders, thus diverting the Arab populations away from the regimes themselves. A concerted effort is needed on this problem. We need to maintain the pressure on the rulers of Qatar over the

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content and programming of Al Jazeera. They own it and finance it, and by recent credible reports the Emir of Qatar and his principal aides have been made to understand by the Administration that they can't befriend us while sponsoring this brand of journalism.

* Consider including in our media strategy material that deftly shows that the Arab-Islamic world needs to communicate with us in a far better way than they have done. Such material could show how awful they look to the world when they appear to be saturated in hate, self-pity, intolerance, and slaughter.

* Our news content must be candid, tuned to local audiences, and remorselessly accurate. Credibility will emerge and credibility is the name of the game. Always, major events come along (the elections in Iraq, the Cedar Revolution, the tsunami tragedies, the earthquake around Kashmir), and credibility leads people to take our reports on such events as accurate.

In the process, we discipline all the other outlets.

Some version of ideas like this need to be assembled and talked around within executive and congressional circles so that broad support can assure the necessary sustainability over many years.

## The Way Ahead

The Islamist terrorist cause has been damaged extensively. The areas of the Middle East that served as safe havens and training grounds, Afghanistan, Yemen, and – we now know – Saddam's Iraq, have been taken away from them. They must not

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be allowed to gain control of Iraq. Their financial sources have been tracked down and that effort continues. No longer can they raise support from around the world and move money across borders and continents as they wished. An all-out effort must be sustained to use less oil! And al Qaeda as the central, coordinating base for a globe-spanning terrorist network is no more. The cells now are more like independent players in a loose array of Islamist activists. This dispersion raises a new set of challenges in the war, but the change is an undeniable advance on the movement as it was developing before 9/11.

But our defenses must continue to be hardened. Our borders and ports remain, because of their vast extent, possible avenues for terrorists to damage our economy and to gain entrance to our country. The silver lining in the Dubai controversy may be needed improvements in security at our ports. And we need to further enlarge and deepen our intelligence cooperation and exchanges with other services in countries around the world. Our collection techniques gain sustainability from well understood and secretly conducted forms of oversight.

Above all, we must not let up on the reality that we are at war, and will continue to be so for a long time to come. Some commentators have noted that the length of time from 9/11 to today is longer than World War II. This is the wrong analogy; what we face is more akin to the decades-long struggle of the cold war.

And being at war, we must retain the option and the will to use force – even as we pair that option with intensive diplomacy. Given the ongoing military task we face in Iraq, and the political pressure against President Bush, it is being assumed by many around the world, friends and enemies alike, that the United States cannot undertake another major military operation, let alone see the effort in Iraq through to success. This is a dangerous

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perception, one that will only heighten the likelihood of further
warfare unless it is dispelled.

At the end of the first term of President Bush it could be said,
correctly, that now the United States could begin to make the
transition from the first-term emphasis on strength to a second-
term focus on diplomacy. In very large part we are doing that. But
the option for military action, on even a large scale, such as a
sustained air campaign to cripple Iran's nuclear weapons program,
must remain alive as a last resort. The more alive it is in the minds
of our adversaries, the more likely it is that we never will have to
use that military option.

The American eagle on the Great Seal must continue to look
toward the olive branch, but just as importantly, must keep a
powerful cluster of arrows in its grasp.

One final point, perhaps the most important: The world has
never been in a situation of greater promise than now for
improvements in the level of income and quality of life in
countries that have been mired in poverty. Look at China. Look at
India. The information age combined with a realization of the
magic of the marketplace are creating new opportunities for
growth and for rising standards of life. We can rally people all
over the world to this banner: the benefits of economic and
political openness and freedom. The terrorists must not be allowed
to abort this opportunity. We will win the war against them
basically by positive action that helps people see improvements in
the way they live.

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TABLE OF CONTENTS

I. Introduction ................................................... Page 3

II. Changing world circumstances and the use of force ................................................... Page 7

III. Preventive force contrasted with preemption ................................................... Page 13

IV. Dangers and limitations of preventive policy ................................................... Page 23

V. Legality and propriety of preventive force................................................... Page 28

VI. Enhancing the legitimacy and utility of preventive force ........................................ Page 39

VII. Conclusion ................................................... Page 47

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# I. Introduction

The 2002 National Security Strategy states that, while the United States is in a position of unrivaled power relative to other States, it nonetheless faces grave and unprecedented threats. It concludes that a greater reliance than has previously thought to be required must be placed on the use of force intended to prevent damaging attacks from occurring.

The Stanford Group on Preventive Force (hereinafter "Stanford Group") has, for the last several months, met periodically with experts in various fields to consider the need for, and implications of, a greater reliance on preventive force in the defense of the U.S. and its allies. The meetings have been held under the Chairmanship of former Secretary of State George P. Shultz, Distinguished Senior Fellow at the Hoover Institution, and Dr. Coit D. Blacker, Director of Stanford's Institute for International Studies, and with the sponsorship of the Hewlett Foundation.¹

The National Security Strategy recognizes that security must be based on the full range of activities necessary to protect the United States, its people, and its interests. It properly relies on diplomacy, non-proliferation efforts, sanctions, international institutions, alliances, foreign assistance, and other non-

¹ This paper has been compiled by Abraham D. Sofer, acting as reporter, based on discussions of the Stanford Group, and with the assistance of Kori Schakel. The paper is not intended in any way to reflect any particular position on any of the issues discussed, and should not be understood to represent the views of the members of the Group, who currently include in addition to Chairman Shultz and Blacker: Marc Abramowitz; Michael H. Armanoff; Gerhard Casper, Jack Covey; Sidney Drett; David J. Holloway; Henry S. Rowen; Scott Sagan; Kori Schakel; and Abraham D. Sofer. The Group has been assisted by Matt Weingart, Catharine Kristian, Scott Taft, James Farrell and Scott Smith who have acted seriatim as Secretary.

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controversial methods for enhancing security. It also breaks no new ground in calling for the use of force when necessary to defend the United States from attacks, and for using preemptive force when an attack is imminent. The National Security Strategy does beyond these established principles, however, and calls for resort to force when necessary to prevent attacks, even if they are not imminent. It also reserves to the United States the power to determine – without Security Council approval – when the circumstances justify uses of force, including preventive actions.²

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The decision to focus this paper, and the discussions that are planned to follow its publication, on issues related to the preventive use of force, is by no means intended to imply that other methods for preventing threats to security are less useful or important. An effective program for preventing threats must be based on the full range of measures available to states that are intended to achieve security without resort to force. These measures are widely accepted as necessary elements of a security design, and have been discussed and evaluated in the National Security Strategy and in many other studies, including the Report of the High-level Panel on Threats, Challenges and Change,³ and individual studies such as Ashton B. Carter and William J. Perry's *Preventive Defense* (Brookings 1999). The propositions advanced by the National Security Strategy related to preventive force, however, are novel and have not received adequate scrutiny. The Stanford Group was therefore formed to study the issues raised by those propositions and to prepare an analysis to facilitate examination of the relevant issues in larger

²⁰⁰² National Security Strategy, p. 15, available at <http://www.whitehouse.gov/nsc/nss.pdf>

³ This Report was requested by Secretary General Kofi Annan to provide a broad framework for collective security for the new century,⁴ and was issued by the United Nations in December 2004. It is available at <www.un.org/secureworld/>.

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discussions and meetings.

The following issues have been identified as those upon which a proper consideration of preventive force should be based:

1. Has the world changed in ways that warrant greater reliance on the use of preventive force? If so, in what ways?

2. What is the meaning of "preventive force"? How does it differ from "preemption"?

3. What are the dangers and limitations in using preventive force to deal with threats that might justify such actions?

4. What are the standards for determining the propriety for using preventive force? Are the standards traditionally advanced to govern uses of force a viable basis for ensuring security? If not, what alternative standards are available to guide states?

5. What measures – both standards and procedures – could enhance the legitimacy and reliability of uses of preventive force? Should states always seek to base uses of preventive force on resolutions of the Security Council? When, if ever, should states be considered justified in using preventive force without Security Council approval? How good should intelligence be for responsible leaders to resort to preventive force?

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An initial version of this summary description of the relevant issues was considered at a discussion held from May 25 to 27, 2005 at Stanford University.⁴ The current version, revised to reflect comments made during the May 2005 meeting, will be considered at a meeting to be held at the Woodrow Wilson School of Public and International Affairs, Princeton University, under the Chairmanship of Dean Anne-Marie Slaughter on March 15-16, 2006. It will be further revised and discussed in an international forum yet to be determined, and thereafter made public.

⁴Participants in that discussion were, in addition to the members of the Stanford Group: Arvid Borchman, Peter Borlowitz, Paul Bree, William Blume-Whit, Sheena Chestnut, Chris Chyba, Zirk Cooper, Chester Crocker, Ivo Daalder, Larry Diamond, Mary Draper, Stephen Hanagan, William Fie, Matthew Gunn, Victor Hanson, Hal Harvey, John Hennessy, Thomas Henriksen, G. John Hraberry, Paul Kern, W/B Levi, Ted Lindberg, Tucker Menzager, Shari Maitis, Tom Muhnerney, John Mues�heimer, Stefan Miller, Norman Hainor, Michael Rado, John Roach, Armand Reed, Condoleezza Rice, Peter Robinson, Matthew Rojansky, Rod Schake, Smita Singh, Anne-Marie Slaughter, Stephen Stedman, James Steinberg, Thomas F. Stephens, David Vicks, Allen Weinraub, Matt Weingart, Marc Weiler, and Daniel Zajac.

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## II. Has the world changed in ways that warrant greater reliance on the use of force? If so, in what ways?

**A. Failed States and Rogue Regimes.** In failed states authority and capacity have eroded to the point where they are incapable of satisfying accepted and evolving standards of international conduct. Rogue regimes may have sufficient capacity but they reject accepted standards.

1. International security is based on assumptions related to the powers and responsibilities of states. Each state in the UN Charter system is assumed to be equal with all other states, sovereign, and having the power and responsibility to control all matters within its borders and its foreign relations. In addition to established duties, such as the obligation to refrain from aggression and to police their territories, in recent years states have been found to have important new duties, such as the obligations to prevent terrorist sanctuaries and attacks, and to protect individuals from serious violations of their human rights.

2. Despite these assumptions and responsibilities, states are often unwilling or unable to act responsibly. Breakdowns in state authority have left significant areas of the world essentially ungoverned ("failed states") or governed in a manner inconsistent with established international norms ("rogue regimes"). Current concepts of sovereignty therefore tend in these situations to provide protections and de facto as well as de jure legitimacy for incompetent and illegitimate rulers.

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3. Due to the breakdown of state responsibility, and to other factors including enhanced expectations of states in areas of human rights, evolving norms and precedents have undercut the notion that states have absolute control over what occurs within their borders.

**B. Unprecedented Destructive Capacities.** Weapons capable of producing mass casualties are becoming increasingly available to states and non-state actors.

1. Potential membership in the WMD "club" is no longer limited to major players in the state system. Current estimates of the states that possess nuclear, chemical, or biological weapons, and the means of delivery indicate a dangerous trend toward proliferation. [See Annex.]

2. Although all classes of WMD may be capable of creating mass effects, they differ in their nature, availability, and susceptibility to control:

(a) **Nuclear Weapons:** (i) require access to nuclear fuel (highly enriched uranium or plutonium) by production (by states, running large programs, at great expense), theft or purchase; (ii) require considerable technology with suspect end purpose, access to which can be made more difficult through classification and export controls, and inspection regimes; (iii) are costly and difficult to develop or to replicate in secret, since a considerable infrastructure is required indicative of purpose; (iv) are more difficult to conceal or to deliver than other forms of WMD; (v) cannot readily be employed without revealing the originator's identity. On the other hand, the gulf from acquiring nuclear material to producing a nuclear bomb is increasingly manageable as a technical matter; less than half

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of the enriched plutonium and uranium stores in the former Soviet Union (sufficient to produce 50,000 to 60,000 nuclear weapons) is under adequate safeguard or accountability; and no international agreement exists to control plutonium produced in nuclear reactors.

(b) **Biological Weapons:** (i) are or will soon be widely available to non-state actors, are relatively inexpensive, and can be produced with little or no external footprint; (ii) can be produced largely if not entirely on the basis of knowledge and equipment that is dual-use, and widely available; (iii) once developed, are readily replicated; (iv) can be delivered globally without great difficulty; (v) can be used with relatively high confidence that the originator will not be identifiable; (vi) are relatively easy to develop and transfer in secret; (vii) would likely be released by military attacks on biological labs or weapons sites, narrowing the scope for using preventive force; and (viii) are uniquely suited for use against civilian population and are not effective on the battlefield.

(c) **Chemical Weapons:** Many of the characteristics, attributable to biological weapons apply to chemical weapons as well. They may, however, be easier to produce than biological weapons, though more difficult to use against populations.

3. The concept of "deterrence", as developed for dealing with nuclear weapons, may have little utility for chemical and biological weapons (due to the difficulty of identifying the originator of an attack, and the impracticality of responding in kind).

4. Prevention of proliferation through international regimes and inter-state agreements is of limited utility with regard to biological and chemical weapons, due to the ability

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of state and non-state actors to develop them in secret.

5. Mitigation of all forms of WMD attacks poses great problems. Mitigation of the consequences of a biological attack (like any other outbreak of infectious disease) requires a high degree of international effort and strong public health systems.

### C. Increased Capacities of Non-State Actors.
Some non-state actors (including groups using terrorist methods) have acquired significant, unprecedented, transnational capacities.

1. Interconnectedness and openness of modern societies afford transnational actors global mobility and influence.

2. Modern communications technologies provide the means for quickly mobilizing and coordinating international efforts of non-state actors.

3. Modern weaponry and explosives are more easily than ever transported and transferred to and by non-state actors.

4. Economic globalization has enhanced the ability of non-state actors to collect and transfer the limited amounts of funding necessary for operations.

### D. Vulnerability of Western Democracies.
The Western democracies are target-rich countries, with vulnerable infrastructure, that are constrained by legal principles and practices in dealing with threats. While they possess relatively advanced technological means in many areas, existing capacities cannot provide complete security in virtually any significant area of vulnerability.

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### E. Islamic Radicalism.
The most pervasive threat today is from radicals purporting to act on the basis of religious doctrine or justification based on Islam. Groups with global reach and ambition are the most threatening.

1. Several Islamic radical groups exist that are well organized and funded by states and individuals who share their fundamentalist objectives.

2. Not all these groups share all the same objectives. Several openly advocate aims that affected states (including Islamic regimes) are unprepared to accept, such as: the reestablishment of an Islamic order in all areas ever controlled by Islam; destruction of the State of Israel; and restoration of some version of the Caliphate.

3. These groups have also declared and demonstrated their willingness to resort to force, including mass violence aimed at civilians and using attackers indistinguishable from non-combatants, to achieve their objectives. They seek the most devastating weapons possible, and are willing to use them in a manner designed to maximize damage to population centers and valuable economic targets. These tactics call into question the sufficiency of retaliatory action.

4. Finally, these groups are difficult to deter, since they are prepared deliberately to engage in suicidal actions. Some have openly espoused or threatened the use of WMD based on the assumption that they can cause far more damage to their enemies' morale and wealth than could be inflicted in retaliation.

Assuming the validity of some or all of the claimed changes in international security described above, in what ways

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and to what extent would resort to preventive force provide benefits in dealing with these threats, and at what price? These issues are dealt with below.

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### III. What is the meaning of Preventive Force and how does it differ from Preemption?

**A. Preventive Force.** Preventive actions can involve the application of any or all elements of national power: diplomatic, regulatory or military. This study examines those preventive actions that involve the threat or use of force, either as preventative war or the many uses of force short of war. It is assumed here that any resort to preventive force would be preceded and accompanied by the full array of diplomatic and other options.

**B. Prevention vs. Preemption.** The concept of preemptive force implies the use of force to stop some conduct that is underway and soon to result in harm. It is normally associated with preempting other uses of force, as an aspect of self-defense. Preventive force, on the other hand, does not require that the outcome to be prevented is underway or soon to cause harm. The distinction between preemption and prevention therefore lies in the degree of imminence and certainty of the threat:

1. To *preempt* is to take action against an actor who has the will, means, and purpose to do harm, and has embarked on doing so.

2. To *prevent* is to take action based on a predictive assessment of the actor's existing or potential capacities and intentions for the purpose of determining what the actor is likely to do at some point in the future.

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**C. Ongoing Conflict.** It is inappropriate to apply either the concept of preemptive or preventive force to the use of force during an armed conflict. Combatants in armed conflict are free to use all necessary and proportionate force to achieve proper military objectives. During the present conflict in Iraq, for example, the US and its allies need not wait for insurgents to undertake or even plan attacks before using force against them.

Based on this principle, the attacks perpetrated by Al Qaeda prior to and including those of 9/11/2001 provided ample justification in the view of most (though not all) international lawyers for using force against Al Qaeda and its members within Afghanistan whether or not yet another attack on the US was imminent. The use of force against Al Qaeda (and its sponsoring regime the Taliban) within Afghanistan, therefore, while intended to prevent future attacks, differs materially from preventive actions based on a threat that has not matured to the point of acts of hostility.

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**D. "War on Terror."** Calling a conflict a "war," as the Bush Administration has characterized its efforts against terrorism, serves to distinguish those efforts from law enforcement activities, but does not establish that all suspected terrorists and their sponsors may lawfully be attacked. States are responsible for activity that emanates from their territory. To justify using force requires that the state be unwilling or unable to halt such conduct. Thus, assuming that authority existed for the US to attack Al Qaeda in Afghanistan after the attacks of 9/11/2001, attacks on Al Qaeda in other states would have to be separately justified, for example, on the ground that those states could not or would not suppress Al Qaeda's activities.

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**E. Categories of Preventive Action.** "Preventive force" includes a broad array of actions, and should be evaluated based on the specific context in which force is used or contemplated. At one end of the spectrum would be a nuclear attack, intended to destroy the capacity of a state to launch a similar attack in the future. At the other end of the spectrum would be limited actions intended to prevent potential threats from developing, such as shooting at the tires of a car that fails to respond to an order to stop, to prevent it from getting close to a building or area that is being protected. Governments routinely exercise preventive force in domestic law enforcement, pursuant to standards based on reasonableness, necessity, and proportionality. In the international context, preventive force has been used in several significant instances that evoked differing responses.

Among the significant categories of preventive actions are the following:

1. **Searches, Detentions, and Interrogations.** States commonly resort to limited uses of force as law enforcement actions within their territories. These actions are largely governed by domestic law, with rules usually requiring evidentiary justification (e.g., probable cause), and limiting force to what is reasonable and necessary. States may not lawfully exercise such police powers inside other states without consent or other proper authority. Whether an Internet probe or cyber attack constitutes an infringement of sovereignty is unsettled and will depend on its particular circumstances.

Preventive uses of force analogous to domestic measures also occur internationally. A recent example is

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the Proliferation Security Initiative, in which over sixty states have agreed to interdict vehicles, planes, or vessels believed to be engaged in illegal proliferation. The initiative does not contemplate resort to the Security Council for prior approval of such actions. Acting pursuant to the PSI, the US and other states intercepted the BBC China in international waters and seized its cargo of nuclear components headed from North Korea to Libya. This seizure also exposed the A.Q. Kahn nuclear black-market network, and has been widely condoned. Seizures or detentions that occur in foreign territory or have less positive results will likely result in greater scrutiny and criticism. The Geneva and Torture Conventions limit uses of force in interrogations regardless of their location.

2. **Hostage Rescue and Protection of Nationals.** States have sometimes resorted to force to rescue nationals who are hostages or in danger of capture. The Entebbe Rescue by Israel of 103 hostages from Uganda in 1976 is the classic example. Though seized by the PLO, the Idi Amin Government took control of the hostages rather than fulfilling its duty to protect and release them. Despite some initial criticism, this action is widely regarded as lawful and legitimate. Uses of force purportedly undertaken for the purpose of preventing harm to nationals who had not yet been taken hostage have also occurred. The US intervened in the Dominican Republic and Grenada, citing the danger to its nationals from rebel groups, and in the process exercising broad control of the areas involved. These actions have less international support and legitimacy than hostage rescues. Even more broadly condemned was the intervention by the UK, France, and Israel

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in 1956 to take control of the Suez Canal, allegedly for the purpose of protecting their nationals in the area. International criticism, led by the US, led these states to withdraw from the area.

3. **Abductions.** Limited uses of force are sometimes undertaken by states to capture individuals believed to have engaged in illegal conduct, and/or for the purpose of preventing anticipated attacks. Abductions undertaken within the territory of another state violate the law of that state, and in general also violate accepted standards of international law. Despite the recognized illegality of such conduct, states occasionally abduct individuals they claim have violated their laws, and often prosecute them for crimes despite demands for their return. Despite the widely assumed illegality of such policies, a high degree of tolerance appears to exist for such positions where the evidence is strong that the individuals seized and prosecuted are in fact guilty of serious criminal activity and the state from which the abduction occurred would have been unlikely either to prosecute or extradite them. Israel's seizure of Adolf Eichmann, for example, was condemned as illegal and a breach of Argentina's sovereignty, but the Security Council did not require Israel to return him to that country. Other known perpetrators of atrocities have been abducted for prosecution with little international criticism. The abduction with US support of Dr. Alvarez-Machain from Mexico, on the other hand, for having allegedly participated in the torture of drug enforcement agents had little if any international support, and his acquittal after trial in the US undermined the credibility of such operations. Abductions for the purpose of preventing attacks are unlikely to secure

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international support unless they are of individuals widely accepted as being likely to engage in some future attack, on the basis of prior conduct or other strong evidence.

4. **Targeted Killings.** States, including the US and Israel, have sometimes targeted individuals or groups who have killed their nationals and are not subject to legal process. In some cases these individuals may be a continuing threat. The US argues that, in such situations, targeted killings are justifiable as necessary, reasonable, and proportionate measures taken in self-defense, despite the absence of proof that the individuals targeted are in the process of preparing additional, imminent, attacks. The US has distinguished such actions from the killing of individuals who have not attacked Americans but may be political opponents, or may be regarded as enemies. Actions taken against such individuals are properly characterized as "assassinations," in the US view, amounting to international murders. No state has attempted to defend assassinations as lawful or legitimate.

Targeted killings have been criticized and condemned as unlawful on several grounds: They are typically undertaken without formal trials or specific determinations of guilt. They predictably result sometimes in the killing of innocent individuals, and often in collateral injuries and deaths of civilians. Israel apologized for the successful killing of a known terrorist, because the bomb used on the apartment house in which he was located destroyed the entire building, killing numerous innocents. Such actions certainly violate the national law of the state in which they occur absent that state's consent, and are generally regarded as violations of international law as well. To minimize the errors and

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collateral damage associated with such actions, Israel has established procedural and evidentiary prerequisites, and an internal process to evaluate the legal, political, and ethical consequences of proposed operations. The US used this method to kill one of the perpetrators of the attack on the USS Cole in Yemen, and to kill certain Al Qaeda members in Pakistan near the Afghan border, apparently with the consent of the governments of the states involved.

5. **Attacks on Terrorists and Supportive Infrastructure.** The US attacked terrorist support facilities in Libya (1986) in response to state-supported attacks by terrorist groups. The US attacked an Iraqi intelligence headquarters (1993) in response to a state-supported effort to kill former US President Bush. The US attacked terrorist training camps in Afghanistan (1998) in response to Al Qaeda attacks on US nationals and facilities. All these attacks were intended to prevent future attacks; none was approved by the Security Council. Israel has also engaged in attacks on terrorist training camps in Lebanon and Syria, and on the PLO headquarters in Tunis, in response to terrorist attacks, and in order to deter future attacks.

6. **Prevention of WMD Development.** In 1981, Israel attacked the Osirik Reactor in Iraq in order to prevent Iraq from developing the capacity to produce plutonium, which would make development of a nuclear device more feasible. Iraq claimed the purpose of the plant was to develop nuclear power, and in any event that Israel had no right to prevent Iraq from developing arms of any sort in the absence of an attack by Iraq, or at least an imminent threat of attack. Israel noted that Iraq had insisted on remaining in a state of war with Israel; that Iraq had repeatedly attacked Israel in the past; and that

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Iraq continued to call for the destruction of Israel as a proper strategic objective. Israel's action was taken before the threat had become imminent, in part to avoid attacking the plant after it had been put into operation, when radiation would have been dispersed.

The US attacked a plant in Sudan (1998) that it believed was under the control of allies of Al Qaeda and was engaged in producing chemicals for use in weapons. Sudan and the plant owner objected, claiming that the plant did not manufacture the chemicals alleged, and was a private plant producing pharmaceuticals. The US and several allies intervened in Iraq (2003) to enforce Security Council Resolutions related, among other things, to Iraq's suspected possession of WMD, but without explicit Security Council approval. One of the stated reasons for the action was to prevent the Hussein regime from providing weapons to terrorist groups that could use them against the US and its allies.

Two of the most likely and most demanding situations that in the future might call for the application of preventive force are North Korea and Iran. Both regimes are either rapidly moving ahead with nuclear weapons programs, or are behaving in a manner that conveys that conclusion. Both have deceived and seem prepared to continue to deceive the IAEA with respect to the scope and pace of their nuclear programs. Both regimes have openly threatened the use of force and have advocated impermissible objectives, including the destruction of other states. Both have supported terrorist groups and used terrorism to advance their interests

and objectives. Both cases, however, illustrate that resort to preventive force has substantial limitations and can prove extremely costly, a lesson also learned in Iraq. In both situations, a preventive attack might not destroy all weapons and certainly would not eliminate important capacities; would be highly likely to result in retaliatory actions against attackers and their allies; could lead to wider military engagements than anticipated; and could reduce rather than increase the likelihood that the current, irresponsible regimes will be replaced through the actions of internal forces.

7. **Humanitarian Interventions.** Interventions to prevent or alleviate humanitarian crises within the borders of a single state are rarely if ever preventive in the sense intended in this analysis; they generally occur after the crisis to which they are addressed has become a reality, thereby eliminating the evidentiary uncertainty as to whether a need for preventive action exists. An intervention in Somalia (1992), approved by the Security Council under Chapter 7 of the Charter, was intended to provide food and other relief in an area that had no operating government and in which widespread starvation and illness had become a reality. NATO intervened with force in Kosovo (1999), without Security Council approval, to prevent the expulsion and killing of Muslims by Christian Serbs, which had already begun. Such uses of force, though addressed to activities already underway, are relevant to the current inquiry in that they represent situations in which the international community or states are prepared to intervene in the territory of sovereign states without their consent, and because they are intended to prevent further injury from taking place. The High-level Panel Report endorsed "the emerging

⁶Report at 68. The Report generally refers to this as a "responsibility to protect" and not a "right to life/evanaga." Id. at 65.

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norm that there is a collective International responsibility to
protect, exercisable by the Security Council authorizing military
intervention as a last resort, in the event of genocide and
other large-scale killing, ethnic cleansing or serious violation of
international humanitarian law which sovereign Governments
have proved powerless or unwilling to prevent."⁵

8. Maintenance of Hegemony. Some critics of the 2002 National Security Strategy have claimed that, because it supports a policy of using preventive force, as well as of maintaining US hegemony, it can be read potentially to contemplate the use of preventive force to preserve US hegemony. The Bush Administration has rejected this reading of the paper. No conceivably legitimate basis could be advanced for such a policy, or for any preventive use of force in the absence of substantial evidence that provides a reasonable basis for anticipating a tangible threat to national or international security.

The situations described above evoke different responses with regard to their acceptability and legality. Some, such as the use of preventive force to rescue hostages, are less controversial than others, such as the use of force to preclude the possible transfer of weapons to terrorists. Some, such as the intervention in Kosovo to prevent grave violations of human rights, are widely supported even though they have little or no established legal support, while others such as attacks on terrorist training camps are widely condemned even though considerable legal support exists for the proposition that such support for terrorism is illegal and prohibited by treaties and Security Council resolutions.

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IV. What are the dangers and limitations of basing national security on resort to Preventive Force?

Resort to preventive force is a problem in which two types of error can occur: One is to take preventive action when no attack would have occurred had no such action been taken; the other is to fail to act against a threat that thereafter actually results in an attack that could have been prevented. Either decision is potentially wrong. The likelihood of error in each case depends on having accurate information and exercising good judgment; the costs of each type of error depend on the consequences of acting versus not acting in particular cases. No general decision rule is available that will ensure correct prediction.

On the one hand, preventive force may be the only possible basis for providing protection from certain types of threats. The 2002 National Security Strategy advocates reliance on preventive force so that the US and its allies will be able to prevent the infliction of harm on their populations and societies. On the other hand, reliance on preventive force carries dangers and has limitations that must be recognized to avoid advancing claims that enhance rather than reduce risk, or that fail to provide the protection presumed from such uses of force.

A. Enhanced Instability. The decision to utilize preventive force as part of a state's national security strategy could deter potential target states, and even some non-state actors, from developing or utilizing dangerous capacities. Adopting such a policy could also, however, cause potential targets or states facing

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similar threats to adopt analogous policies, or to act in anticipation of a preventive attack. Similarly, while some states may be led to give up WMD programs or aspirations because of the threat or use of preventive force, others may be led to adopt or expedite such programs and goals in order to protect against threatened preventive action.

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B. **Uncertainty of Conclusions.** A decision to use preventive force is a prediction of future actions, and therefore more prone to error than a decision to use force in response to an actual attack, or to preempt an imminent attack. However reliable the intelligence used in concluding that the use of preventive force is necessary, it cannot be known with certainty that, had preventive force not been used, an attack would in fact have occurred on the state anticipating the danger. A hostile regime or leadership may be forced from power before it acts, or may alter its policies without the use of preventive force. It is unrealistic to assume, moreover, that any state is capable of collecting and correctly appraising the evidence required to evaluate danger accurately, to identify critical targets correctly, and to have confidence that the threat involved will be entirely eliminated by the action contemplated. Inevitably, decisions to initiate preventive action would be made despite substantial uncertainties as well as incomplete or incorrect information on important issues. These uncertainties will result in some attacks that are based on error or inaccurate prediction. Erroneous attacks and other forms of accidental damage frequently occur in warfare. But the use of force in a preventive context may be particularly susceptible to challenge based on legitimacy.

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C. **Provoking Response.** A major danger in the use of preventive force is the response it can potentially provoke from the state or group attacked. A state or group attacked preventively without Security Council approval is likely to contend that it has the right to respond in self-defense, and could have a credible claim in that regard. Whatever the legal situation, preventive attacks seem more likely than responsive actions to generate resentment among target populations and their sympathizers. Adverse public reactions can undermine or greatly complicate efforts to win support from such populations. Any use of preventive force must also take into account the capacity of the state or the organizations attacked to respond. North Korea, for example, could respond to an attack on its nuclear facilities by attacking South Korea with massive artillery barrages. Dealing with the danger of anticipated response, moreover, could lead a state intent on taking preventive action to attack before a danger is fully developed, and with force sufficient not only to eliminate the particular danger but also the potential response. Where the state attacked is believed to possess WMD, a preventive use of force would demand intelligence of extremely high quality and specificity to ensure confidence that the threat will be neutralized with a high likelihood of zero counter-strike capability.

D. **Limits to Deterrent Value.** The threat or use of preventive force against states is likely to have considerable deterrent value, in that states are generally assumed to act in a calculated fashion based on their interests. In some cases, force or the threat of preventive force may dissuade a state from pursuing a course of action or program, or cause it to modify its intentions without altering its capabilities. On the other hand,

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the threat of preventive force could lead a state thus denied
overt options to seek covert and deniable partnerships with non-
state entities as an asymmetric means of achieving its goals.
For instance, a radical Islamic regime whose position might be
internally weakened by a preventive strike or which is threatened
with being overthrown by liberal forces in the society could provide
weapons to terrorist groups whose use of them would exacerbate
tensions with the West and help the regime to stay in power.

Rational state actors will be unlikely to provide weapons of mass destruction to organizations over which they have little or no control. This general expectation provides no assurance, however, against state actors who perceive their interests in irrational ways, or against terrorist groups receiving such support, or from parties within a state who are operating from motives other than rational calculation.

The threat or use of preventive force against non-state entities has less potential deterrent value than in the case of states, since such groups are not responsible for a territory and a population. States have indefinite duration and make commitments to other states to secure reciprocal advantages. Non-state entities lack these characteristics and incentives. However, non-state actors still require a physical locality, and some deterrent effect may be secured by holding states responsible for activities of non-state actors within their territories.

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E. Limited Value Based on Nature of Threat. The threat or use of preventive force is not equally likely to prove effective in dealing with all forms of threats. Strategic doctrine has long recognized the inadequacy of preventive actions as a method for

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dealing with nuclear threats posed by states.

Preventive force is also likely to be ineffective as a means for dealing with other types of threats. For example, once a biological weapon has been developed, it becomes impossible to neutralize that capability by force due to the ease of replicating and dispersing agents, without destroying the group in possession of such a weapon. A more effective strategy against the emerging BW and CW threats, would include defensive measures, such as stockpiling vaccines, antibiotics, and masks; deploying sensors developed for low level B/CW agents; and supporting first responder preparations.

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## V. By what standards should the propriety of using Preventive Force be determined?

The legitimacy of uses of force by states depends in part upon how widely accepted are the grounds upon which action is taken. The UN Charter governs the legality of uses of force. The Charter provides that Members "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." (Art. 2(4).) The Charter is a treaty and all its ratifying states are bound by its terms, at least as understood in good faith by each party. Disregarding Charter rules may well be possible for powerful states, but will tend to undermine the legitimacy, not only of the actions taken in disregard of the rules, but also of the rules themselves and the propriety of enforcing them against other states. The Stanford Group therefore examined the extent to which traditional standards governing uses of preventive force are a viable basis for determining the propriety of such actions, and if not whether alternative standards are available for that purpose.

### A. Traditional Rules.
The traditional rules advanced by international lawyers for governing the use of force, including preventive force, require, with limited exceptions, that uses of force either be approved by the Security Council, or constitute acts of self-defense against attacks on the defending state. These rules were reaffirmed by the High-level Panel Report, which asserts that no need exists to modify them, since the Security Council is empowered to deal adequately with current threats.⁶

⁶ Report, supra, pp. 53-64.

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1. **Security Council Authority.** The Security Council has broad powers to approve uses of force, including uses of preventive force, once it determines that the situation requiring the use of force constitutes a threat to "international peace and security" under Chapter 7 of the Charter. This power is broad enough in theory to cover all the categories of potential uses of preventive force that could reasonably be viewed as justifiable. The only legal limitations on this authority appear to be (a) the Charter allocation to individual states of "matters which are essentially within the domestic jurisdiction of any state . . ." (Art. 2(7)), which has been given little if any restrictive force in practice, and (b) the argument that the Council cannot act in a manner that limits the "inherent" right of self-defense.

The Council's authority is limited, however, by the requirement that no Permanent Member of the Council vote against the action proposed. The end of the Cold War made this limitation easier to overcome; the Security Council since 1990 has approved several uses of force in connection with humanitarian crises (Somalia, Bosnia), in response to aggression (Iraq/Kuwait), and to combat terrorism (Afghanistan). Council approval nonetheless remains a formidable obstacle; since 1990, the Council failed to approve the use of force to stop egregious violations of human rights (Rwanda, Kosovo), and to enforce its own resolutions regarding WMD (Iraq). Obtaining Security Council approval in advance is likely to be particularly difficult with regard to uses of preventive force, which sometimes will require decisive moves, based on imperfect and improvable predictions.
Consensus on preventive actions will only be possible to the extent that consensus exists on the predicted threat. The high

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standards of proof needed to gain the Council's acceptance may rarely be attainable within the short time constraints and the need for surprise that such actions may require.

The Report of the High-level Panel urges that the US and all states and regional organizations adhere to the view that Security Council approval is essential for uses of force other than those in self-defense against an actual or imminent attack. The Report concludes "that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment – and to visit again the military option."⁵ This statement could be construed to recognize, as a practical if not legal matter, that states may genuinely need to use force in situations where the Council will not approve its use; even assuming such an interpretation, the Report requires at a minimum at least one effort to secure Council approval and the exhaustion of all other alternatives before such actions could be contemplated.

The US and other major powers have never accepted that Security Council approval is an absolute prerequisite to the use of force, whether for actions claimed to be in self-defense or in other situations, including humanitarian interventions. The US continues (in the 2002 National Security Strategy and elsewhere), along with other powers and NATO, to reserve the option of using force without Security Council approval. Given the dangers and legal difficulties of using force

without Security Council approval, however, and especially of using preventive force (including the lack of legitimacy, the possibility of error, and the potential for doing greater harm than good), it is appropriate to consider whether the US should as a matter of principle seek Council approval whenever possible for all uses of force even if it reserves the right to use force preventively if approval is denied.

The international community, and the Council, have adopted supportive principles and policies in the three areas that are of greatest concern to the US and its allies: terrorism; human rights; and WMD proliferation. Secretary General Annan and other world leaders have called for increases in the UN's capacities related to the use of force, in order to enhance the Council's willingness and ability to act promptly and effectively to preserve international peace and security.⁶ The High-level Panel Report calls upon the Council to confirm through an interpretive resolution the situations in which it will give serious consideration to the use of force to protect international peace and security, and the situations identified by the Panel as appropriate are essentially the same threats identified by the US in its 2002 National Security Strategy.⁷ These developments arguably increase the likelihood that efforts to obtain Council approval for the use of force in those situations of greatest concern to the US and the international community will succeed. Finally, the benefits in sharing the

⁵ The European Security Strategy (Brussels, 12 December 2003) provides in this regard (p.9): "Strengthening the United Nations, equipping it to fulfil its responsibilities and to act effectively, is a European priority. We want international organizations, recognised and recognised to be effective in confronting threats to international peace and security, and must therefore be ready to act when their rules are broken."

⁶ See High-level Panel Report at 23, summarizing the "six clusters of threats with which the world must be concerned now and in the decades ahead," including inter-state conflict, internal conflict (genocide and other atrocities), nuclear, radiological, chemical and biological weapons, terrorism, and transnational organized crime.

⁷ Report at 63.

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burdens of military interventions also lend support to such a principle.

2. **Self-Defense.** Article 51 provides that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." Although this provision characterizes the right involved as "inherent" and states that "nothing" in the Charter shall be read to impair the right thus recognized, international law has developed in a manner that purports to limit the right of self-defense to actions taken in response to actual attacks on the Member state resorting to force.

In addition, numerous other limitations have been advanced as to the right to self-defense. Some scholars argue (and the ICJ has recently so stated in an advisory opinion) that, to justify acts as self-defense, an attack must be by the forces of another state. The ICJ has also narrowed the right of self-defense to attacks that are substantial, thereby forcing states that are subject to lesser attacks to rely on "other measures" to defend themselves (excluding for example collective action). This suggests support for the argument that attacks on a "Member" of the UN means (with perhaps exceptions for embassies and troops) attacks on the Member's territory. Another claim advanced is that defensive actions must cease once the attack involved is reported to the Security Council and it assumes jurisdiction, even though the measures taken by the Council have been insufficient to restore the Member attacked to full control over its territory and population. If Article 51 were narrowly applied, moreover,

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it would leave no room, for example, for the use of force to rescue hostages, and would severely constrict the protection of allies.

Regarding anticipatory force, the reading given Article 51 by international lawyers and the ICJ would not allow, and many have claimed it does not allow, any use of force in self-defense until an attack actually begins.¹ The High-level Panel Report concludes that international law does allow the use of preemptive force after an attack is at least underway, and its consequences are "imminent," thus precluding resort to the Council. Even this view of anticipatory self-defense leaves no room for preventive actions without Council approval for the purpose of averting some future danger, however serious and however high the likelihood of its being realized.

The US has never accepted these limits on the right of self-defense, and they have been disregarded in practice by many states. The 2002 National Security Strategy explicitly rejects the limitation that preventive actions may only be taken in the face of an "imminent" threat, because it concludes that the nature of current threats has made that concept unworkable.² The effectiveness of verbal limitations on the actions of states is questionable in any event; Germany, Japan, Italy, and other states made blatantly false claims of imminent threats before undertaking aggressions.

¹⁰ The High-level Panel concluded the right to respond to imminent threats is part of established international law. This claim would be applicable to the full range of the historic right of self-defense. In fact, prominent scholars have argued that the language of Article 51 prevents all forms of anticipatory use of force.

¹¹ The European Security Strategy also suggests (p.7) a need for change from "our traditional concept of self-defense." The thrust of invasion has been replaced by "new threats" which are abroad and dynamic. "The risks of proliferation grow over time, left alone, terrorist networks will become ever more dangerous. State failure and organized crime spread if they are neglected - as we have seen in West Africa. This implies that we should be ready to act before a crisis occurs. Conflict prevention cannot start too early."

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Many scholars who believe that the traditional rules were intended by the Charter have nonetheless concluded that those rules are inadequate to deal with modern necessities in the areas of terrorism and humanitarian law. Little agreement exists, however, on how the international community should respond to this lack of clarity or concurrence with regard to the law of self-defense. Several, alternative approaches have developed to deal with the situation.

**A. Recognizing Exceptions.** The most common response among international lawyers to the inadequacy of traditional rules of international law governing the use of force has been to propose the creation (or de facto recognition) of narrow exceptions for specific situations. One exception now widely accepted is the right of states to use force to secure release of its noncombatant nationals from the custody of terrorists holding them as hostages. Another proposed exception that is gaining support or acceptance is the use of force to prevent massive and serious violations of established principles of human rights, such as genocide.

This approach to the problem of inadequate rules — treating specific situations demanding the use of force as narrow exceptions — could provide a possible basis for permitting some uses of preventive force as related to self-defense. For example, exceptions could allow preventive actions against states or non-state actors that illegally possess weapons of mass destruction; or against terrorist groups that have established records of illegal violence; or against states that fail to satisfy their obligations under international law to give no support to terrorists or to prevent terrorist groups from attacking outside their borders.

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**B. Allowing "Reasonable" Uses of Force.** Another approach for dealing with the inadequacy of traditional rules has been to construe the right of self-defense as having been preserved in its historical entirety by Article 51, allowing all uses of force in self-defense that are reasonable under the circumstances. This approach would deal with the claim that Article 2(4) narrowed legal uses of force by distinguishing between uses of force consistent with Charter purposes and the territorial integrity of other states, on the one hand, and uses of force inconsistent with those principles. Virtually every US Administration since Truman has on one issue or another advanced arguments for a more flexible legal regime, and some (beginning with the Kennedy Administration and continuing to the present) have described the proper approach to the use of force as a multi-factored analysis aimed at determining the reasonability of uses of force based in part on the provisions and purposes of the Charter.

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Most international lawyers, and the ICJ, have not accepted this more flexible approach, though it has significant support in the domestic law of states (where force is frequently regulated by rules based on reasonableness), and in the reasoning process of political leaders and national security practitioners, who usually evaluate and justify uses of force on the basis of all the factors that are relevant to the particular situation involved.

This more flexible approach might, for example, weigh proposed uses of preventive force based on the gravity of the danger, the likelihood of its realization, the exhaustion of other means for prevention, the extent to which UN Charter based procedures and values support the action, and the proportionality of the action contemplated relative to the danger perceived. Supporters of this approach believe it would be useful as an ordered basis for evaluating uses of preventive force to deal with current threats. Opponents argue, among other things, that it would leave too much discretion to individual states to determine unilaterally their reaction to potential rather than actual danger.

### C. Legitimacy as a Substitute for Legality.
A narrow interpretation of Article 2(4) requires approval of the Security Council; however, as even the High-level Panel acknowledges, this has often proven untenable. The Council cannot be expected to approve the use of preventive force in all situations where states believe that a need exists to act preventatively in defense of their interests or to protect against humanitarian disasters. Arguably, in such situations guiding principles could be established distinct from traditional legal standards that enable states and other interested parties to evaluate the legitimacy of the action.

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The High-level Panel Report accepts the need for a multi-factored analysis as a necessary basis for determining the legitimacy (or wisdom) of using force. It recommends that the Council adopt "a set of agreed guidelines, going directly not to whether force can legally be used but whether, as a matter of good conscience and good sense, it should be." It proposes "five basic criteria of legitimacy: (a) Seriousness of threat. . . (b) Proper purpose. . . (c) Last Resort. . . (d) Proportional means. . . [and] (e) Balance of consequences. . ." (Report at 67.)

The Report states that its proposal for establishing the legitimacy of uses of force is intended for situations where the use of force would be lawful by traditional standards. It has, however, included among the factors that it believes establish legitimacy all of the factors that establish legality under traditional norms, including "just war" theory. Therefore, while the High-level Panel may not have intended their criteria to become an alternative to Security Council approval for determining an action's legitimacy, that could be the practical result of the approach they have suggested.

### D. Force Based on National Interest.
A common response among national security practitioners to the inadequacy of traditional use-of-force rules, within the US and elsewhere, is to ignore the rules and engage in an interests-based calculation. US officials are viewed, by governments and commentators, as regarding themselves as exempt from the traditional rules by virtue of US military and economic power. Justifications for this broad discretionary power over the use of force include the arguments that the US is the most likely target for many potential aggressors, and that the US should use its influence and power

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to lead the world in advancing objectives such as freedom and human rights, rather than be bound by rules intended to support politically neutral outcomes. This approach would leave the US largely unbound by rules in determining whether to exercise preventive force, though subject to the realities and risks that accompany unilateral military initiatives.

Some may contend that this approach provides the most accurate description of how states actually behave. Yet, few if any states would agree with the legality or legitimacy of so broad an allocation of authority to any other state. To the extent such authority is claimed by any state, other states could advance reciprocal claims, potentially creating greater international instability. The question remains, moreover, whether so broad a claim of authority is necessary to provide adequate security from threats potentially requiring the use of preventive force.

# VI. What measures could enhance the legitimacy and utility of Preventive Force?

The dangers, limitations, and lack of standards associated with the use or threat of preventive force warrant careful consideration of the circumstances in which such actions are justifiable, if at all. If the concept of preventive force is to have a place in national security strategy it should be based on standards and procedures that maximize its utility while minimizing its dangers.

## A. Standards.

1. **Necessity.** States have universally accepted the principle that uses of force can be legitimate only if resort to force is necessary. The 2002 National Security Strategy makes clear that diplomacy and all other feasible means must be exhausted before resort to force, including the use of benefits (economic and security as appropriate) as well as sanctions. Important steps short of force might include, in the area of WMD proliferation for example, establishing effective means of verifying compliance with the Nonproliferation Treaty, including the Additional Protocol, the Proliferation Security Initiative, and providing regional centers for assuring the availability of nuclear fuel for peaceful purposes (i.e. energy and research) to non-nuclear countries to replace their developing forbidden indigenous fuel cycles. The fact that the NPT has built-in discrimination between nuclear and non-nuclear weapon states would need to be taken into account if greater restrictions on non-nuclear states are to be developed, potentially with greater reliance on benefits for such states to go along with new restrictions or enforcement.

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2. **International Support.** The effectiveness and legitimacy of an effort to deal with a threat is enhanced to the extent it has support from other states. This factor supports the notion, discussed above, that any threat or use of force, and particularly of reliance on preventive force, should if possible have the support of the Security Council. Where Council approval is not possible, efforts should be made to secure the broadest support obtainable, through standing and temporary alliances, including regional organizations such as NATO, and fostering concerted action by democratic states. These steps would not only enhance the legitimacy of preventive actions, they could also reduce the risk of error due to the process of debate and scrutiny that such efforts would entail.

3. **Charter-Based Objectives.** The threat or use of preventive force is likely to be considered illegitimate by most states if based on objectives inconsistent with purposes found in or based upon the UN Charter or otherwise universally accepted. Conversely, reliance on such purposes to justify preventive force is likely to strengthen the legitimacy of such actions. On several issues, UN Resolutions and widely adopted treaties impose duties on states that can be invoked to support the threat or use of preventive force.

* **Terrorism.** The Security Council and General Assembly have condemned all forms of support for terrorism and terrorist groups. Several widely adopted treaties also make such support illegal. The threat or use of preventive force gains support when invoked in connection with a state complicit in tolerating or supporting groups that use its territory as a base for terrorist operations, or against a group that calls for or undertakes hostile actions.

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* **WMD Development or Proliferation.** UN resolutions and several treaties make the development, possession, use, and proliferation of some forms of WMD illegal; many states have agreed to additional constraints, particularly regarding nuclear weapons and technologies. The threat or use of preventive force gains support if invoked in connection with illegal weapons development or proliferation. Particular emphasis could be placed on preventing acquisition of nuclear explosive material (Pu239 and U235 primarily).

* **Egregious Violations of Human Rights.** Many treaties and resolutions make illegal certain violations of human rights, including genocide and torture. Military actions for the purpose of protecting people from widespread violations of these rights are likely to have significant legitimacy.

* **Political Freedom.** International law provides no support for the proposition that a state can use force against another state in order to advance the political freedoms of the other state's nationals. Some support can be mustered, however, for the proposition that UN Charter purposes should be considered to include a preference for political freedom for all peoples, and therefore that uses of force based on stronger grounds (terrorism; preventing the use of WMD) gain some legitimacy if they also advance political freedoms.

4. **Proportionality.** A long-standing, universally accepted standard governing use of force is the principle that the force used should be proportional to the danger involved. Excessive force is force that is unreasonable, given the objective for which force is used, its consequences including its impact on non-combatants, and the availability of less damaging means capable of dealing effectively with the threat involved. The ICJ's decision

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in Nicaragua v. United States utilized a "tit-for-tat" approach suggesting that defensive measures should be no more stringent than the measures against which such actions are taken. The US and other powers have rejected this approach and rely instead on an understanding of proportionality that allows the use of such measures as are reasonably seen to be required to deal effectively with the threat warranting a use of force. The proportionality of a preventive use of force requires particularly careful calibration, especially where no illegal acts have yet occurred against which the preventive action can be measured. The quarantine of Cuba, implemented during the Kennedy Administration, is widely condoned as a properly calibrated preventive response to a grave threat that had not yet been manifested by any attack on the US.

5. **Intelligence.** Uses of force are always accompanied by uncertainties. Uses of preventive force are particularly prone to doubts, given the fact that preventive actions are generally taken before an attack has occurred or is imminent. To enhance the legitimacy of preventive actions therefore requires care in recognizing and reducing the uncertainties involved in each case. The level of proof necessary to justify a particular action will necessarily depend on all the relevant circumstances, including some inherently uncertain factors such as the threat involved and the likelihood of its becoming realized. But enhanced legitimacy can be attained for a preventive action by determining in advance what relevant facts are known and unknown in each situation, and by properly evaluating the information (intelligence) available with regard to the relevant circumstances that are unknown.

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Preventive actions vary materially in the extent to which they are based on findings or assumptions that may fairly be treated as facts. The danger sought to be prevented will in some cases be more tangible than in others before action is taken to prevent further consequences. North Korea's nuclear enrichment activities, for example, are far more advanced than those of Iran. In evaluating whether to use preventive force to target a suspected terrorist, the uncertainties potentially associated with such a decision will be materially reduced if he is an avowed member of Al Qaeda who has openly advocated terrorist acts. Whether to intervene to protect an ethnic group from the prospect of some form of inhumane treatment will involve fewer uncertainties if inhumane acts have already been threatened and taken against such individuals.

With regard to uncertainties that cannot be definitively resolved, the legitimacy of a use of preventive force will depend in part on the care and competence with which intelligence related to the issues is collected and used. Two Commissions have recently examined the strengths and limitations of the US Intelligence community, and the manner in which intelligence has been used by national security officials in resolving uncertainties related to attacks on the US and other foreign threats such as the existence of WMD in Iraq.¹⁰ Among the principal conclusions of these Commissions are: (1) the need to develop a culture in the intelligence community of "competitive analysis" in which all hypotheses are stringently tested; (2) the importance of relying on integrated, multi-source analysis, rather than single-source assessments; (3) that information sharing within and among all

12 National Commission on Terrorist Attacks Upon the United States (2004); Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (2006).

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relevant agencies is essential to avoid failures and exploit the potential value of all information; and (4) that the protection of sources and methods, though important, must not be allowed to prevent adequate discussion and evaluation. In the US, the Director of National Intelligence is responsible for improved collection and evaluation of intelligence, and that role is an essential element in enhancing the legitimacy of preventive actions.

**B. Procedures.** The legitimacy of the threat or use of preventive force is likely to be enhanced if the state contemplating such action adheres to procedures designed to make clear its need and justification.

1. **Report to Security Council.** The UN Charter requires that all uses of force in self-defense be "immediately reported" to the Security Council (Art. 51). Potential uses of preventive force are more likely to be avoided, or accorded greater legitimacy, when a report is made to the Security Council in advance of any military action than if no report is made. Such reports provide an opportunity for multilateral discussion of the threat perceived, of measures that could avert the threat short of the use of force, of possible Security Council approval of the use of preventive force to deal with the threat, and of the enhanced legitimacy of using force in the absence of such approval based on criteria such as those specified in the High-level Panel Report.

2. **Preference for Multilateral Action.** The dangers of preventive force, and the possibility of its use in bad faith, make it preferable from the viewpoint of legitimacy that such actions be

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undertaken multilaterally, even when Security Council approval cannot be obtained. The EU has stated that the "Security Council has the primary responsibility for the maintenance of international peace and security." In the event the Council fails to exercise its responsibility, actions by other multilateral groups are likely to be viewed as more legitimate, all other factors being equal, than those of individual states.

A preference for multilateral support implies a need to ensure multilateral capacity and the willingness to address real though as yet unrealized threats. Secretary General Anan has stated that states feel forced to act unilaterally because the UN Security Council lacks the ability to call upon dedicated forces to deal with threats promptly and effectively. To the extent the Security Council's lack of capacity and willingness to deal with threats can be remedied through measures such as those recommended by the High-level Panel, the preference for multilateral action through the Security Council is made more viable.¹¹ A commitment to prefer and effectively to utilize the Security Council to prevent threats from maturing into disasters is also consistent with, and arguably might be enhanced by, the possible use of preventive force to address serious threats that are not resolved by the Council's actions.

3. **Justification.** A state contemplating resort to preventive force should first present the evidence it claims justifies such

¹¹ The Report of the High Level Panel indicates a number of proposals to enhance the Security Council's capacities to deal with threats. It recognizes that one reason states may want to bypass the Council is a lack of confidence in the quality and objectivity of its decision-making. The Council's decisions have often been less than consistent, less than persuasive and less than fully responsive to very real State and human security needs. But, the Report concludes, "the solution is not to reduce the Council to impotence and irrelevance: it is to work from within to reform it...." Report at 64.

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extraordinary action, if possible to the Security Council. Where
an adequate record is made, as in the case of Iraq's failures to
comply with Security Council resolutions, it may be proper to place
a burden of proof on the state whose conduct has generated
serious concerns. Peaceful resolution of concerns may be more
likely if the state allegedly responsible is formally called upon to
rebut or remedy the circumstances presented to the Council.

4. Compensation. To encourage care, and as a matter of
fairness, states that resort to preventive force could be required
to pay fair and just compensation for any harm they cause
that results from erroneous conclusions. Procedures could be
established to enable the Council to perform reliable forensic
examinations in such situations.

The standards and procedures described above are
tentative suggestions that require further elaboration. Other
methods may also be devised for enhancing the legitimacy of
preventive force, to the extent such measures are undertaken.

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VII. Conclusion

An examination of the issues related to the possible
use of preventive force does lead to some general conclusions.
States currently face real dangers from the use of terrorist
methods and the potential use by states or non-state entities
of nuclear, biological or chemical weapons. The international
community is also confronted with the fact that some states refuse
or are unable to comply with their obligations to suppress terrorism
and to treat their own nationals consistently with universally
accepted standards of human rights. Analogous dangers and
threats to human beings are dealt with domestically by states
through preventive measures, in order to minimize the costs and
suffering that occur once serious threats are realized. It is natural
that states prefer to prevent international threats as well, rather
than attempting to deal with them exclusively through retaliation
and criminal prosecution. Preventive action in some situations is
widely felt to be the most moral and effective measure.

Preventive uses of force entail risks, including the
possible exacerbation of the very problems such uses of force
are intended to resolve. They are also particularly disfavored by
International law, as a method for dealing with threats to security,
both because of the UN Charter's provisions related to the use
of force and in light of the possibility of errors, bad faith, and the
risks of such conduct. The need to consider preventive uses of
force is sufficiently strongly and widely felt in the international
community, however, so as to warrant the development of clearer
and more universally accepted norms of conduct, both with regard

47

NO. 163

P. 27

GEORGE SHULTZ

2:37PM

MAR. 30. 2006

to the need to utilize the Security Council when possible, and with
respect to the bases upon which states could justify such actions
when the Council fails to act.

Current rules fail to provide acceptable guidance to states
with respect to the situations in which resort to preventive force
would be considered justifiable, even in the absence of Security
Council approval. NATO's intervention in Kosovo to prevent the
expulsion of Muslim Kosavars is a case in point. The criteria
proposed by the High-level Panel Report for evaluating the
legitimacy of uses of force provides useful guidance, and their
adoption by the Council would enhance security and the care with
which such issues are addressed. Some forms of preventive force,
used in certain contexts, are clearly problematic, especially large-
scale military efforts. Other forms of preventive force are less so.
Even if all such uses of force continue currently to be regarded as
inconsistent with the UN Charter, the development of standards
and procedures by which their legitimacy can be tested should
contribute materially to the enhancement of international peace
and security.

48

MAR. 31. 2006 6:28PM

GEORGE SHULTZ

NO. 173 P. 4

Tentative Agenda

June 15-16, 2006

Page Two

The welcome lunch on June 15 will be hosted by David Li at the Stanford Park Hotel.

The afternoon discussion on June 15 will take place at the Annenberg Conference Room, Hoover Institution.

Dinner on the evening of June 15 will be hosted by Charlotte and George Shultz at their on-campus home.

The morning discussion on June 16 will take place at the Annenberg Conference Room, Hoover Institution.

The closing lunch on June 16 will be hosted by the Chinese Consulate of San Francisco at a restaurant in the Stanford vicinity.

A block of rooms has been reserved at the Stanford Park Hotel. Guests must check out of these rooms on the morning of June 16 as Stanford Commencement events will begin that day. Plenty of rooms are available in San Francisco for those who would like to stay for the weekend.

HENRY KISSINGER

For immediate release

AMERICAN STRATEGY AND PRE-EMPTIVE WAR

By Henry A. Kissinger

The recent publication of the second quadrennial administration statement on National Strategy passed without the controversy that marked its predecessor in 2002. This is all the more remarkable because the statement reiterates the commitment to a strategy of pre-emption in exactly the same words as were contained in the 2002 version.

When the doctrine of pre-emption was first put forward, it was attacked as being contrary to generally accepted principles of the international system, which had evolved over three centuries and were enshrined in the United Nations Charter in 1945. Though the provisions of the Charter were, to put it mildly, ambiguous — Article 24 prohibiting all use of force "against the territorial integrity or political independence" of another state and Article 51 recognizing a universal right of national self-defense — the legal framework worked well enough for the remaining years of the 20th century. Weapons of mass destruction spread relatively slowly, and the possibility of their being acquired by groups other than governments was yet beyond imagination. Hence the extension of the right of self-defense was widely rejected because the rest of the international community did not accept a definition put forward by one country, which reserved to itself the right to implement it.

The 2006 report was received with less hostility partly because other countries had had more experience with the emerging new threats and partly because a more conciliatory American diplomacy has left new scope for consultation. There has evolved a reluctant recognition that pre-emption may be so built into modern technology and international practice that some reconsideration of existing rules is overdue. A high-level group has reported to that effect to the Secretary General of the U.N. A joint study group of Stanford University's Hoover Institute and the Woodrow Wilson School at Princeton University has held two conferences under the chairmanship of former Secretary of State George Shultz to explore the relationship of the pre-emption doctrine to present global realities.

Pre-emptive strategy involves an inherent dilemma: It is based on assumptions that cannot be proved when they are made. When the scope for action is greatest, knowledge is at a minimum. When knowledge is high, the scope for pre-emption has often disappeared. Had Churchill's early warning been heeded, the Nazi plague could have been destroyed at relatively little cost. A decade later, tens of millions of dead paid the price for the quest for certainty of the statesmen of the 1930s.

American policy needs to navigate this element of uncertainty. The key question becomes: How is the threat to be defined, and through what institutions can resistance to it be implemented? If each nation claims the right to define its pre-emptive rights for itself, the absence of any rules would spell international chaos, not international order.

2

Some universal, generally accepted principles need to be matched with the machinery of their operation. Any other approach will create additional incentives for spreading weapons of mass destruction.

Of course, the United States, like any other sovereign nation, will, in the end, defend its vital national interests — if necessary, alone. But it also has a national interest to make the definition of national interest of other nations as much parallel its own as it can. Any course that relies for international order primarily on unilateral superior force defines a trajectory toward doomed overextension.

A first step is to recognize that the American Strategic Doctrine does not really talk about what is commonly defined as pre-emptive action. Pre-emption applies to an adversary possessing a capacity to do great, potentially irreversible damage, coupled with the demonstrated will to do so imminently. The right to use force unilaterally in such circumstances has been more or less accepted — with some dispute over the definition of the word "imminently." In that sense the most obvious targets for pre-emptive strategy are terrorist organizations operating from the territory of sovereign states and capable of generating threats heretofore the attribute of the nation state. Operating either by acquiescence or their ability to impose themselves, these entities cannot be deterred because they have nothing tangible to lose and because they have shadowy means to obscure the origin of their attack. Nor can they be dealt with by diplomacy, because their objective generally is not compromise but the destruction of their adversary.

The deeper issue raised by the administration's Strategic Doctrine concerns what is generally defined as the preventive use of force: measures to forestall the emergence of a threat not yet imminent but capable, at some point in the future, of being potentially overwhelming — in other words, preventing the coming about of a situation that eventually is likely to require pre-emptive action.

It follows that preventive force is not an issue applicable to relations with an established major nuclear adversary. If the United States did not act against the emerging Soviet nuclear power at the height of the Cold War or against that of China during the period of deep hostility before 1971, it is not likely to use force against an established nuclear power unless that power engages or is on the verge of engaging in actual aggression — in other words, by conduct justifying pre-emption.

The issue of preventive force symbolizes the upheaval in the international system. The Westphalian system sought security based on the sanctity of international borders. In our time, the power, range and speed of modern weapons have made this definition too narrow.

Thus the issue of proliferation to heretofore non-nuclear weapon states emerges as one of the key tasks of preventive diplomacy. The United States has an obvious incentive to prevent the spread of weapons of mass destruction, especially of nuclear weapons, into wrong hands. For aspirant great powers, the incentive is precisely the opposite, to acquire nuclear weapons as rapidly as possible and, if thwarted, to develop chemical or biological

3

weapons, either for their own security or as a safety net for assertive or revolutionary policies. Any diplomatic outcome to the proliferation issue, therefore, depends in part on whether diplomacy is able to generate security assurances for the country asked to forego nuclear weapons. The test of preventive diplomacy will come if diplomacy fails.

How should that balance be struck? One school of thought holds the view that mortal danger is inherent in the process of proliferation. It points out that, until the outbreak of World War II, it was generally considered that a country could legitimately go to war if it was attacked or if an aggressor brought about a change in the global balance of power of a magnitude to threaten international security. (It was the basis for British foreign policy for 200 years.) But in the contemporary world, the coin of power is technology, not territory. Modern weapons of mass destruction, by their very existence, bring about an increase in a country's power vastly exceeding what could be achieved by any conceivable territorial acquisition. The capacity to threaten is accompanied by the increasing range of delivery systems. The very existence of these weapons, according to this school of thought, produces a pre-emptive incentive; the balance of terror that was precariously maintained in a two-power nuclear world weakens with each new entrant into the ranks of states possessing weapons of mass destruction. Deterrence becomes impossibly complicated when many balances have to be considered by many different actors simultaneously. Hence, in this view, the emergence of new nuclear weapons power must be prevented as a last resort by force.

Another approach makes a distinction between friendly and threatening countries. The United States has acquiesced in the development of nuclear weapons technology in India, Pakistan and Israel because the purpose of these states was believed compatible with long-range American objectives. The United States has strongly opposed the spread of weapons of mass destruction to Iran and North Korea because they are governed by hostile autocratic regimes and have records of ruthless international conduct. Indeed, a not insignificant school of thought holds that the best anti-proliferation policy — at least in these cases — is to overthrow the North Korean and Iranian regimes. That implies America's anti-proliferation policy is concerned not so much with the fact of proliferation as with the nature of the regime that acquires these weapons. Does this mean that America would acquiesce in the acquisition of nuclear weapons by elected governments? A realistic policy will bring a resolution to this debate and emphasize that a wise strategy will recognize the threat inherent in the very fact of proliferation, which can be mitigated but not ended by the existence of benevolent government.

A special case is humanitarian intervention, which applies to circumstances that threaten American security only indirectly. In these cases, the preventive use of force can only be justified on the ground that it resists offenses to values considered essential by American society or by the international community rather than to one's security. This was the basis for the intervention in Kosovo, where NATO acted without Security Council authority to stop the mistreatment by a recognized state of its own population of a different ethnic composition. It was also a significant motive force in the American decision to remove Saddam Hussein.

4

Strangely, the impulse toward preventive intervention has proved most difficult to apply to genocidal events like the massacres in Rwanda and Darfur. The fact that no country felt directly threatened prevented both unilateral and multilateral action — not to the credit of the international system or its principal exponents.

These earlier applications of preventive force suggest the following conclusions:

The analysis underlying the Strategic Doctrine document is correct in emphasizing the changes in the international environment and the propensity (or perhaps even necessity) they create toward some forms of preventive strategy. But stating the theory is only a first step. The concept must be applied to specific, concrete contingencies; courses of action need to be analyzed not only in terms of threats but of outcomes and consequences. Conclusions must go beyond position papers to plans of action capable of implementation on the working level and include enough congressional participation to bring about sustainable public support. Finally, a policy that allows for preventive force can sustain the international system only if solitary American enterprises are the rare exception, not the basic rule of American strategy.

The other major nations have a similar responsibility to take the new challenges seriously and to treat them as something beyond the sole responsibility of America. A common approach, however contrary to historical experience, may be possible because what used to be called the "great powers" have nothing to gain by military conflict with each other. They are all more or less dependent on the global economic system. They are all threatened (if not symmetrically) if ideology and weapons run out of control. They should know that, after the use of weapons of mass destruction or universal carnage due to a clash of civilizations, their publics will demand some form of preventive diplomacy. The challenge is to build a viable international order without the impetus of having survived catastrophe.

© 2006 TRIBUNE MEDIA SERVICES, INC.

DATE 5/3/06

CORR. FILE Shutt, George

ACTION: Alan Stape Dennis
Jessee Theresa John B.
Maggie Suzanne Rose

SUBJ. FILE

CROSS REF.

STAFF MEMO

COMMENTS:

DC OFFICE:
Christie / Jody / Ann

INFO COPY TO:

ROUTE CC COPY TO:

TO BE FILED MY

VIA FACSIMILE

April 24, 2006

Dear David,

Yang Wenchang called on me at my home on Saturday and we spent an hour or so talking about the coming meeting. I told him who would be present on the U.S. side. I've added the name of Michael Boskin since he is an eminent economist (Chairman of the first President Bush's Council of Economic Advisers), and he recently presented a paper at the China Development Forum in Beijing. I may also need to add an energy expert.

We agreed on three big themes for the meeting: 1) the U.S. and Chinese economies against the background of the world economy; 2) the energy picture and how it may unfold; and 3) geopolitical developments, particularly as they affect the United States and China. In addition, as I suggested in my earlier tentative agenda, we should take some time to discuss leading internal developments in the United States and China.

He is uncertain about who will lead the Chinese delegation. I told him that as far as we are concerned, the dates are firm and everything has been arranged. He seemed to accept that.

I will be writing to the U.S. side to confirm all the arrangements and look forward to seeing you soon.

With best wishes,

George P. Shultz

Dr. David K. P. Li
Chairman and Chief Executive
The Bank of East Asia, Limited
10 Des Voeux Road Central, Hong Kong

STANFORD UNIVERSITY • STANFORD, CA 94305-6010 • TEL: 650-725-3492 • FAX: 650-723-5441

JUN. 9. 2006 4:37PM

GEORGE SHULTZ

NO. 718 P. 6

# Program Rundown

## Wednesday, June 14, 2006

Participants from Beijing, Hong Kong, and other cities in the U.S. arrive in San Francisco.

## Thursday, June 15, 2006

11:30 - 13:30 Welcome Luncheon Hosted by David K. P. Li, Convener
13:45 - 17:30 Afternoon Session of the Sino-U.S. Unofficial High-Level Dialogue
Evening Dinner Hosted by Charlotte & George P. Shultz

## Friday, June 16, 2006

08:30 - 12:30 Morning Session of the Sino-U.S. Unofficial High-Level Dialogue
13:00 - 15:00 Thank-you Luncheon Hosted by Chinese Delegation
15:00 End

SINO-U.S. UNOFFICIAL HIGH-LEVEL DIALOGUE 2

JUN. 20. 2006 9:30AM

GEORGE SHULTZ

NO. 766 P. 2

VIA FACSIMILE

June 20, 2006

Dear Henry,

Last week, I forgot to confirm with you the dates for our next meeting on the Preventive Force project. We will need to set dates very soon in order to invite a high-level group of officials and scholars.

After looking at our calendars, and taking into account your unavailability until late October, we propose a two-day conference that would begin on Sunday evening, October 29, with an informal dinner for participants. We would then have a full day of discussions on Monday, October 30, with a working dinner to be addressed by you, if possible. On Tuesday, October 31, we would have at least a half-day of discussions, with mid-day adjournment.

I agree with you that Berlin is the best place for this meeting. You indicated that you would consult with friends to find a good place and some sponsorship. We have already lined up some support from Hewlett and expect to find more. It would be very helpful, though, if we could find a sponsor in Germany to provide a venue, food, and, to the extent possible, housing. We expect there will be about 40 participants.

I'll call you to confirm these tentative dates.

With best wishes,

The Honorable Henry A. Kissinger
Kissinger Associates, Inc.
350 Park Avenue, 26th Floor
New York, NY 10022-6022

JUN-27-2006 15:36

FROM HAK DC OFFICE

TO KAI NY

P.002

中國人民外交學會

CHINESE PEOPLE'S INSTITUTE OF FOREIGN AFFAIRS

71 Nanchizi, Beijing 100006, China

Tel:(+8610)65131824

Fax:(+8610)65131831

E-mail: cpifa@public.bta.net.cn

June 21, 2006

Prof. George P. Shultz
Stanford University
California, USA

Dear Prof. Shultz,

The 2nd Sino-US Unofficial High-Level Dialogue was concluded with a resounding success. We believe that the Dialogue has played an active role in promoting the understanding and cooperation between China and the United States, indeed, it has served as the catalyst for the promotion of Sino-US relations. On behalf of the Chinese delegation, we would like to avail this opportunity to express our sincere thanks to you for your outstanding contribution to the Dialogue. We benefited a lot from your knowledge, wisdom and insight.

Once again, we wish to thank you for your valuable support and cooperation and we look forward to working closely with you again in the future.

With best wishes,

Zhao Qizheng
Vice Chairman of the Foreign Affairs Committee of
the Chinese People's Political Consultative Conference

Yang Wenchang
President of the Chinese People's Institute of Foreign Affairs

TOTAL P.002

JUL. 27. 2006 2:39PM

GEORGE SHULTZ

NO. 026 P. 27/27

# The Nuclear Danger and What Can Be Done About It

You have taken important steps toward nuclear non-proliferation with the Moscow Treaty, the reduced emphasis on the role of nuclear weapons, and the Bratislava Summit at which you and President Putin took personal responsibility for nuclear security.

But as these acts of statesmanship are implemented, the nuclear threat worldwide grows worse. Some nations that possess nuclear weapons, such as North Korea and Pakistan, are expanding their arsenals. A non-nuclear weapons state, Iran, is proceeding to acquire that capability, and others are watching and perhaps preparing to follow suit. In this context, Japan and other states that have rejected nuclear weapons for themselves must reconsider their options. And most alarmingly, the likelihood that non-state terrorists will get their hands on nuclear weapons is increasing.

This situation presents tremendous dangers, but also an opportunity. This is the reason for this memorandum. The nuclear issue requires U.S. leadership to take the world to the next stage - to a solid consensus for de-emphasizing nuclear weapons as a contribution to preventing their proliferation and ultimately ending them as a threat to the world.

Nuclear weapons were essential to maintaining international security during the cold war because they were a means of deterrence. The end of the cold war made the doctrine of mutual Soviet-American deterrence obsolete. With today's war waged on world order by terrorists, nuclear weapons can only be feared as means of mass devastation.

Apart from the terrorist threat, unless urgent new actions are taken the United States soon will be compelled to enter a new era of deterrence that will be more precarious, psychologically disorienting, and economically even more costly than was cold war deterrence. We do not want to have to replicate the old Soviet-American "mutually assured destruction" with new versions of the same balance of terror. For

JUL. 27. 2006- 2:39PM

GEORGE SHULTZ

NO. 026 P. 3

example, if Iran's acquisition of nuclear weapons is not stopped, the United States will have no choice but to contain a nuclear-armed Islamist regime in Tehran with a newly-designed system of nuclear deterrence. Should this take place, the United States would soon find itself forced into nuclear deterrent standoffs with an increasing number of potential nuclear enemies worldwide.

What can be done?

The indispensable anchor of our policy has been and must remain Article VI of the Non-proliferation Treaty. Envisioning the end of nuclear weapons, it provides (a) that states which did not possess nuclear weapons as of 1968 agree not to obtain them, and (b) that states that do possess them agree to divest themselves of these weapons over time.

This two-part treaty structure – non-proliferation and divestment – has never been as important as it is today, when uninformed, or ill-intentioned voices assert that since the United States has nuclear weapons, it has no right to try to prevent others from getting them.

We have a strong non-proliferation effort under way. The Proliferation Security Initiative is an innovative approach that deserves all the attention we can give it toward full implementation. But the increasing array of dangers described above require more of us. The meeting between President Reagan and General Secretary Gorbachev in Reykjavik 20 years ago displayed a vision that shocked experts in the doctrine of nuclear deterrence, but galvanized the hopes of people around the world. The leaders of the two countries with the largest arsenals of nuclear weapons discussed the abolition of such weapons and the ballistic missiles that deliver them.

The question today is whether the promise of the Non-proliferation Treaty and the possibilities registered at Reykjavik can be brought to fruition. We believe the answer is yes. Most important for the immediate situation, if the United States sets forth the set of actions described below, it will vastly increase our leverage in the cause of non-proliferation.

2

JUL. 27. 2006 2:39PM

GEORGE SHULTZ

NO. 026 P. 4

1. All known locations for uranium enrichment for peaceful uses should be placed under international supervision. All countries would agree to forego any further enrichment capability with the guarantee that uranium for nuclear power purposes could be obtained at a reasonable price, first from the Nuclear Suppliers Group and then from IAEA or other controlled international reserves. Spent fuel would be collected for disposal or reprocessing. Any state that rejects this new international structure would forfeit its legitimacy as a cooperative partner and would automatically face specified and severe sanctions.

2. We should build an international consensus to end as rapidly as possible the use of Highly Enriched Uranium (HEU) in civil research and commerce. HEU, needed to make the simplest kind of nuclear weapon, exists in more than 40 countries and over 100 civil sites, most poorly secured. Almost all the work done at these facilities now can be accomplished with Low Enriched Uranium (LEU) not suitable for weapons. Russia itself still has more than 70 civil research reactors using HEU and no plans to convert them to LEU. The United States has over a dozen HEU reactors that need to be converted to LEU. [CHECK NUMBERS]

3. To increase security, changes in our nuclear alert posture are required. Deployed nuclear weapons capable of being launched on a "hair-trigger" basis and hitting their targets in 30 minutes would have their alert status changed, in stages, with the goal being no weapons maintained in this alert status.

Under this approach, you and President Putin would mandate your experts to devise ways for increasing warning and decision times. In this context, the deterioration of Russian satellite and radar capability has created the need for U.S. assistance to the Russian early warning system.

A similar process should begin between the United States and the PRC.

Increasing warning and decision times will have an effect on deterrence; the longer the delay between a first strike and a retaliatory second strike, the greater the likelihood that political pressure will develop to block the second strike. So as changes in our alert posture are

3

JUL. 27. 2006 2:39PM

GEORGE SHULTZ

NO. 026 P. 5

taken, in stages, particular attention to North Korea, and perhaps other
situations, will be needed.

4. Step up efforts on the range of other related issues:

*   **Operationally deployed forces:** Reduce them to the minimum essential numbers, which would be substantially lower than the current level and the levels in the Moscow Treaty.

*   **Tactical Nuclear Weapons:** These are the weapons that terrorists are most likely to steal or buy. We should seek transparency with Russia on their numbers and locations, with the goal of eliminating this class altogether. Before we could reach that goal, others would need to cooperate in this effort.

*   **The Comprehensive Test Ban Treaty:** Ratification by the senate will be essential to U.S. credibility on all other nuclear weapons matters. Encourage the senate to be receptive through provisions for periodic review and other possible steps that will strengthen support for the treaty.

*   **Verification:** Emphasize and enhance technical work in this most vital task, with the Biological Weapons Convention in mind, as well as a fissile material cut-off treaty.

Action on these points would be perceived as a bold initiative and would strengthen our leverage and credibility in all other aspects of arms control, reduction, and non-proliferation. Such an initiative would follow through on President Reagan's vision and America's moral heritage, and have a profoundly positive impact on the security of future generations.

HENRY A. KISSINGER

July 20, 2006

Dear Werner:

As I told you in Munich, George Shultz has been working
with a group at Stanford and Princeton trying to define a
legitimate use of force. I have attended parts of two
conferences, which were scholarly, non-partisan and at a
very high level.

They would like to hold one meeting in Europe and I
thought a link with the Bertelsmann Foundation might be
appropriate. They are funded by the Hewlett Foundation.
But some symbolic contribution would be appropriate.
You mentioned possibly making available your
extraordinary facilities in Berlin for that occasion. Above
all, they would appreciate your recommendation from
your wide range of contacts for European participants.

I have asked Shultz to get in touch with you directly,
perhaps via an associate who deals with these matters.

Anything George Shultz undertakes has my full support.

Warm regards,

Henry A. Kissinger

Prof. Dr. Werner Weidenfeld
Member of the Executive Board
The Bertelsmann Foundation
Carl-Bertelsmann-Straße 256
33311 Gütersloh
Germany

TWENTY-SIXTH FLOOR · 350 PARK AVENUE · NEW YORK, NEW YORK 10022 · (212) 759-7919
FACSIMILE (212) 759-0042

AUG. 8. 2006 10:41AM

GEORGE SHULTZ

NO. 097 P. 2

AUG. 8. 2006 10:42AM

GEORGE SHULTZ

NO. 097 P. 3

## What can be done?

AUG. 8. 2006 10:42AM

GEORGE SHULTZ

NO. 097 P. 4

2. We should build an international consensus to end as rapidly as possible the use of Highly Enriched Uranium (HEU) in civil research and commerce. HEU is needed to make the simplest kind of nuclear weapon. The number of countries and civil sites involved is not certain, but credible estimates are that HEU exists in more than 40 countries and well over 100 civil sites, most poorly secured. Almost all the work done at these facilities now can be accomplished with Low Enriched Uranium (LEU) not suitable for weapons. Russia itself still has more than 70 civil research reactors using HEU and no plans to convert them to LEU. The United States still has to complete the conversion of about a dozen of its civilian HEU reactors to LEU.

Increasing warning and decision times will have an effect on deterrence; the longer the delay before a first strike and between it and a retaliatory second strike, the greater the likelihood that political pressure will develop to block initiation of nuclear conflict. As changes in our

3

AUG. 8. 2006 10:42AM

GEORGE SHULTZ

NO. 097 P. 5

alert posture are taken, in stages, particular attention to North Korea, and
perhaps other situations, will be needed.

*   **Fissile material cut-off treaty and verification:** You have already pledged to conclude a fissile material cut-off treaty. We should emphasize and enhance technical work to allow for verification of this vital agreement, also with the history of the Biological Weapons Convention in mind.

AUG. 22. 2006 5:28PM

GEORGE SHULTZ

NO. 224 P. 3

GEORGE P. SHULTZ
THOMAS W. AND SUSAN B. FORB
DISYINGUISHED FELLOW

August 8, 2006

Dear Dr. Weidenfeld,

My friend, Henry Kissinger, told me about his conversation with you and he has sent me a copy of his July 20 letter explaining the project in which we are both involved. I understand from Henry that the Bertelsmann Foundation might be willing to be our host in Berlin in your extraordinary facilities there.

Here is some background on what we are doing. Some time ago, a group of us here at Stanford met periodically to discuss the issues defining the legitimate use of force. We educated ourselves and we produced a brief statement on this subject that formed the basis for a conference held at the Hewlett Foundation. About 50 people from around the country came. The discussions were serious and genuinely worthwhile. We decided we should try it again somewhere on the East Coast. One of the invited participants was Anne-Marie Slaughter, dean of the Woodrow Wilson School at Princeton, and she volunteered to be the host. The second conference, with a somewhat different cast of attendees, was also a great success. Henry Kissinger gave a wonderful talk at the closing dinner.

We all decided that we should gather a group of serious people in Europe to have the same kind of discussion, and Berlin seemed an ideal place. We would expect to have about 50 people in attendance. The dates we have selected are October 31-November 1, 2006.

HOOVER INSTITUTION • STANFORD UNIVERSITY • STANFORD, CA 94305-6010 • PHONE: 650-725-3492 • FAX: 650-723-5441

AUG. 22. 2006 5:28PM

GEORGE SHULTZ

NO. 224 P. 4

Prof. Dr. Werner Weidenfeld

August 8, 2006

Page Two

Henry Kissinger plans to attend the meeting. Coit Blacker, director of Stanford's Institute for International Studies, and I are the co-chairmen of the Stanford group, with the key organizing role played by Abraham Sofaer, a Hoover fellow who was legal adviser to the secretary of state in the Reagan and first Bush administrations. Gerhard Casper has also been a key participant in our group.

Please let me know if your facilities could be available to us.
We would also appreciate your help, as Henry indicated in his letter, in
developing our list of European participants.

With best wishes,

SEP. 13. 2006 9:09AM

GEORGE SHULTZ

NO. 414

P. 2P 1 2 2006

Prof. Dr. Dr. h.c. Werner Weidenfeld

P.O. Box 103
Carl-Bertelsmann-Str. 256
33311 Gütersloh · Germany

Mr George P. Shultz
Hoover Institution
Stanford University
Stanford, CA 94305-6010
VEREINIGTE STAATEN VON AMERIKA

September 7, 2006

Dear Mr Shultz,

Many thanks for your letter of August 8.

Your proposal sounds interesting and does fit into our current agenda on
international and global affairs.

Unfortunately, the dates that you mention in your letter are not available any
longer. Our house in Berlin is used intensively by the Bertelsmann Foundation as
well as the Bertelsmann Company -- we therefore need to reserve facilities well in
advance to our own meetings.

I really would have liked to cooperate with you and your colleagues on this highly
important topic. All the deeper is my regret to not being able to realize the
proposed dates.

Please keep me informed if and when you consider another session or date further
down the road.

11/05/2006 14:20 FAX 415 2927148

CHARLOTTE SHULTZ

001

NOV 06 2006

REYKJAVIK: THE REAGAN-GORBACHEV VISION

The remarkable summit meeting between Ronald Reagan and
Mikhail Gorbachev on October 11-12, 1986, in Reykjavik, Iceland,
is widely recognized as marking a major turning point in U.S.-
Soviet relations. The summit covered a broad agenda of major
issues including human rights, bilateral relations, and regional
problems. Most notably, it led to a deeper understanding of a
common interest of the two nations to pull back from the brink of
nuclear disaster, and the urgency for them to initiate major
reductions in their deployed nuclear forces on hair-trigger alert. A
conference was held at the Hoover Institution, Stanford University,
on the 20th anniversary of that important event to reconsider the
vision that Reagan and Gorbachev brought to Reykjavik, what they
accomplished, and its relevance for today's world.

President Reagan stated his vision at Reykjavik when he called
for the abolishment of "all nuclear weapons," which he considered
to be "totally irrational, totally inhumane, good for nothing but
killing, possibly destructive of life on earth and civilization."
Mikhail Gorbachev shared this vision, which had also been
expressed by previous American presidents starting with President
Dwight D. Eisenhower, who said the United States is determined
"to help solve the fearful atomic dilemma - to devote its entire
heart and mind to find the way by which the miraculous

CHARLOTTE SHULTZ

002

inventiveness of man shall not be dedicated to his death, but
consecrated to his life." And President John F. Kennedy said,
"The world was not meant to be a prison in which man awaits his
execution."

Although Reagan and Gorbachev failed to achieve their full
goal of "zero nukes" over a disagreement on acceptable restraints
on the development and testing of components for ballistic missile
defense, they did succeed in turning the arms race on its head.
Specifically, they initiated steps leading to significant reductions in
deployed forces, including the removal of an entire class of
threatening missiles in Europe.

A major topic on the table at the Hoover conference was: What
will it take to rekindle the vision of Reagan and Gorbachev? Can a
worldwide consensus be forged that defines a series of practical
measures leading to major reductions in the nuclear danger?

The nuclear danger has been transformed and is growing larger.
As President George W. Bush has warned, with the spread of
nuclear technology and the emergence of radical states supporting
suicidal terrorist movements, "the gravest danger that our nation
now faces lies at the crossroads of radicalism and technology."
North Korea's recent nuclear test and Iran's refusal to stop its
program to enrich uranium highlight the fact that the world is now
on the precipice of a new and dangerous nuclear era. Most
alarmingly, the likelihood that non-state terrorists will get their
hands on nuclear weaponry is increasing.

This situation presents tremendous dangers, but also an
opportunity. The nuclear issue requires U.S. leadership to take the

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CHARLOTTE SHULTZ

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Apart from the terrorist threat, unless urgent new actions are taken,
the United States soon will be compelled to enter a new era of
deterrence that will be more precarious, psychologically disorienting,
and economically even more costly than was cold war deterrence. We
do not want to have to replicate the old Soviet-American "mutually
assured destruction" with new versions of the same balance of terror.
For example, if Iran's acquisition of nuclear weapons is not stopped,
the United States will have no choice but to contain a nuclear-armed
Islamist regime in Tehran with a newly-designed system of nuclear
deterrence. Should this take place, the United States would soon find
itself forced into nuclear deterrent standoffs with an increasing
number of potential nuclear enemies worldwide. But non-state
terrorist groups are conceptually outside the bounds of a deterrent
strategy.

11/05/2006 14:21 FAX 415 2927148

CHARLOTTE SHULTZ

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What can be done?

The indispensable anchor of our policy has been and must remain
the Non-proliferation Treaty. Envisioning the end of nuclear
weapons, it provides (a) that states which did not possess nuclear
weapons as of 1968 agree not to obtain them, and (b) that states that
do possess them agree to divest themselves of these weapons over
time.

This two-part treaty structure – non-proliferation and divestment –
has never been as important as it is today, when uninformed, or ill-
intentioned voices assert that, since the United States has nuclear
weapons, it has no right to try to prevent others from getting them.

A strong non-proliferation effort is under way. The Proliferation
Security Initiative and the Additional Protocols are innovative
approaches that deserve full implementation. But the increasing array
of dangers described above requires more. President Reagan and
General Secretary Gorbachev aspired to accomplish more at their
meeting in Reykjavik 20 years ago. Their vision shocked experts in
the doctrine of nuclear deterrence, but galvanized the hopes of people
around the world. The leaders of the two countries with the largest
arsenals of nuclear weapons discussed the abolition of such weapons
and the ballistic missiles that deliver them.

CHARLOTTE SHULTZ

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1. All known locations for uranium enrichment should be placed under international supervision. All countries would agree that any further enrichment capability would be built and operated only under international supervision. This would be combined with the guarantee that uranium for nuclear power purposes could be obtained at a reasonable price, first from the Nuclear Suppliers Group and then from IAEA or other controlled international reserves. Spent fuel would be collected for disposal or reprocessing. Any state that rejects this new international structure would forfeit its legitimacy as a cooperative partner and would automatically face specified and severe sanctions.

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CHARLOTTE SHULTZ

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Under this approach, U.S. and Russian experts would be mandated
to devise ways for increasing warning and decision times. In this
context, the deterioration of Russian satellite and radar capability has
created the need for U.S. assistance to the Russian early warning
system.

Increasing warning and decision times will have an effect on
deterrence; the longer the delay before a first strike and between it and
a retaliatory second strike, the greater the likelihood that political
pressure will develop to block retaliation and the cascading of nuclear
conflict. As changes in our alert posture are taken, in stages,
particular attention to North Korea, and perhaps other situations, will
be needed.

CHARLOTTE SHULTZ

007

*   **Cease production of fuel for nuclear weapons through the fissile material cut-off treaty and verification:** A pledge to conclude a fissile material cut-off treaty is on the table. We should emphasize and enhance technical work to allow for verification of this vital agreement, also with the history of the Biological Weapons Convention in mind.

Action on these points would be perceived as a bold initiative and would strengthen our leverage and credibility in all other aspects of arms control, reduction, and non-proliferation. Such an initiative would follow through on the vision of Presidents Reagan and Gorbachev and America's moral heritage, and have a profoundly positive impact on the security of future generations.

Twenty years ago at their summit meeting in Reykjavik, Ronald Reagan and Mikhail Gorbachev endorsed the vision of a world free of nuclear weapons and discussed practical measures toward achieving that goal. Although they failed to come to a formal agreement, they did lay down a challenge that is urgent for us to address today. We should urge the world through the United Nations to declare that all weapons of mass destruction be abolished and that violations, based on effective Security Council inspection rules, be considered

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