Cheng: Would Wider Legal Authorization to Use Military Force Abroad Make the United States Safer?

Tai-Heng Cheng (New York Law School) has posted Would Wider Legal Authorization to Use Military Force Abroad Make the United States Safer? Here's the abstract:

Terrorists will continue to pose security threats to the United States. In response, legal scholars have debated whether the United States should press to legalize preemptive self-defense. Hawks and doves have each explained their respective points of view. However, their positions remain divergent. This Article bridges the gap between them. It approaches the problem from a policy orientation that combines legal analysis, anthropological research, and empirical modeling. It first widens the debate about preemptive self-defense. The key policy issue is about whether preemptive attacks should be launched, whether the legal justification comes from self-defense, Chapter VII of the UN Charter, or elsewhere. Hawks and doves disagree because they respectively prioritize national security and global order. The article breaks their impasse by accepting, for the sake of engaging both sides, that national security has primary importance. It then tests the assumption that wider uses of preemptive military force would make the United States safer. Drawing from field interviews in Iran and Pakistan of the Taliban, government officials and leaders of Islamic parties, the Article hypothesizes that while there are definite costs in every U.S. military preemption, the security benefits are often indeterminate because the use of force risks animus and retaliation against the United States. The Article then confirms this hypothesis using statistical regressions of U.S. government data on U.S. use of force and attacks on the U.S. from 1948 to 2006. These regressions reveal that there is insufficient evidence to conclude that preemptive attacks will make the United States safer. The Article thus concludes that before military preemption is deployed, the U.S. government should require its proponents to meet a high burden of proof that the security benefits of preemption outweigh its costs. As an alternative to a policy of preemptive attacks, this Article recommends five strategies that could be more easily justifiable and might better promote U.S. security.