A Nuclear Iran, Redux

A Nuclear Iran, Redux

In his 2002 State of the Union address, President George W. Bush chastised Iran for its alleged attempts to produce weapons of mass destruction, including nuclear weapons.  The President named Iran, along with Iraq and North Korea, as the “axis of evil.”  The growing possibility of a nuclear Iran meant that the geopolitical game in the Middle East had changed.  Iran fears the military power of the United States, but it also is emboldened by its hard-line leadership and its suddenly central role in the Middle East.  When Hezbollah managed to resist Israeli strikes against its strongholds in Lebanon in 2006, the Iranian leadership reasoned that the United States and Israel would be less willing to risk the possibility of failed military strikes against any eventual Iranian nuclear sites.  Still, there remained inside Iran (and inside the United States) much speculation that the United States was actually planning a military strike against Iran’s nuclear sites.  As President Bush insisted, “all options are on the table.”

With the shift in power arrangements in the Middle East, by 2006 some observers began to fear that, if Iran developed nuclear weapons, it would use them, to strike at Israel and the United States.  It was even conceivable that a nuclear Iran could use its weapons to attack Sunni neighbors, say in Saudi Arabia, as a demonstrable assertion of Shiite strength.  Even a realistic threat of such a use of nuclear weapons would surely start a new arms race in the Middle East.

From the perspective of the fall of 2006, the pressing questions concerning the United States and Iran included these: Will the United States or Israel attack Iran?  Is there any viable set of targets inside Iran?  Could Iran’s reaction to a United States or Israeli attack be reasonably contained?  The Iranian facilities are widely dispersed and are hidden, underground.  It is unlikely that the United States or Israel could find the sites, just as it is unclear how they could be hit.  Even successfully targeted facilities could be rebuilt.

The policy of preemptive use of military force, first articulated as United States policy in the 2002 National Security Strategy of the United States, appeared to find a model application in the case of Iran.  Although there was then (and is now) no credible intelligence indicating that Iran is capable or inclined to wage an imminent attack against the United States or Israel, with nuclear or any other weapons of mass destruction, the very idea of the preemption policy is to make such an attack impossible, before it can occur.

Because of the importance of the stakes for our nation and for the world, on October 26 and 27, 2006, the Syracuse Law Review, the Institute for National Security and Counterterrorism, Syracuse University College of Law, and the Maxwell School of Citizenship and Public Affairs held a Symposium, A Nuclear Iran: The Legal Implications of a Preemptive National Security Strategy.  Distinguished scholars considered Iran’s interests in nuclear technology, the legal status of any eventual nuclear weapons inside Iran, and the regional and global ramifications of any Iranian nuclear weapons.  The panels also assessed how the prospects of a nuclear Iran affect United States and Israeli security policies, along with those of other affected states.  The experts also evaluated the current and likely future legal status of the policy of preemption in international and domestic law, and they considered alternative courses of action that might be taken by the United States or the international community against any Iranian development of nuclear weapons. In the spring of 2007, several of those experts published essays in A Nuclear Iran symposium issue of Volume 57 of the Syracuse Law Review.

So much has changed in the United States and in the Middle East and Arab world since 2007.  Yet many of the fundamental facts and features of the standoff over Iran and nuclear weapons remain the same.  Rising tensions caused by reports that Iran is closer to developing a nuclear weapon, and a series of apparent tit-for-tat targeting of nuclear scientists in Iran, attempted terrorist strikes by Iranian operatives against Western targets, and the Stuxnet cyber-attack on Iranian reactors prompted the Editors of theSyracuse Law Review to revisit the Nuclear Iran symposium and ask some of its contributors to offer brief reflections on pertinent developments and the likely resolution of the continuing struggle over the Iranian nuclear program.

The following essays by Mary Ellen O’Connell, Mitchel Wallerstein, Gregory Maggs, Sam Gardner, Mehrzad Boroujerdi, and Todd Fine share some common conclusions.  First, a decade after the George W. Bush administration announced the doctrine of preemption in its 2002 National Security Strategy and then relied on it to justify its determination to invade Iraq in 2003, the legal consensus remains that attacking Iran over its nuclear program would be unlawful.  The UN Charter’s self-defense exception to the prohibition on the use of armed force against any nation requires an actual armed attack or reliable intelligence indicating an imminent likelihood of such an attack, and Iran’s small-scale attempts to strike Western targets do not come close to unleashing the self-defense power.  The foundational international legal calculus remains in place despite the absence of Security Council repudiation of the Israeli destruction of a nuclear facility in Syria in 2007.

Second, the challenges of any military operation—mounted by Israel or the United States—to degrade or destroy Iranian nuclear facilities are even more formidable than they were five years ago.  Iran has improved its defenses, dispersed its program to more sites, and developed a deep underground facility that would be especially difficult to destroy.  Meanwhile Iranian officials have repeatedly threatened conventional military and terrorist strikes against United States, European, and Israeli targets in response to any attack on Iran.

Third, the Obama administration and its European partners have imposed tough and reasonably effective economic sanctions on Iran, and negotiations with Iran have recurred almost surely because of the significant harm caused by the sanctions. At the same time, it remains highly unlikely that the negotiations will lead to Iran ending its nuclear enrichment program.  Despite the continuing threat of military preemption by Israel and the promise to Israel by President Obama that the United States will attack Iran if it develops a nuclear weapon, Iran continues its nuclear enrichment.

Fourth, the actions taken by Israel and the United States to slow down the Iranian nuclear program—targeting their scientists and unleashing Stuxnet and the larger Olympic Games cyber-attacks program—have only strengthened the determination of Iranians to continue their nuclear program.  Relatedly, the geostrategic uncertainties generated by the Arab Spring continue to generate fear and a threat of proliferation of nuclear weapons in the region if Iran develops a nuclear weapon.

Finally, a two-week Central Command war game, Internal Look, was conducted in March 2012 and then leaked to the New York Times.  The game began with an Israeli first strike on Iran.  Iranian missiles then struck a United States Navy warship in the Persian Gulf, killing about 200 Americans.  The United States retaliated by carrying out strikes on Iranian nuclear facilities.  The Internal Look war game has been used for more than two decades to test the military’s ability to respond to various potential crises in the Middle East.  Yet the 2012 Internal Look was the first iteration to focus on Iran, and the chance that an Israeli strike could envelop the United States in a regional war where it would suffer hundreds of casualties is certainly cause for concern.  Although Israeli saber-rattling over Iran has subsided in recent months, it is far from clear that the State of Israel would defer to United States requests that it not engage in a first strike. If military planners prepared the game and then leaked it in order to prepare the American people for the increasing likelihood of another war, it is high time for a full and frank discussion of our policy objectives.


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About William C. Banks

Prof. William C. Banks is a Board of Advisors Distinguished Professor of Law, Professor of Public Administration, and director of the Institute for National Security and Counterterrorism (INSCT). He is an internationally recognized authority in national security law, counterterrorism, and constitutional law. Banks has helped set the parameters for the emerging field of national security law since 1987, co-authoring two leading texts in the field: National Security Law and Counterterrorism Law. Banks is also the author of numerous other books, book chapters and articles including Combating Terrorism (with Mitchel B. Wallerstein and Renee de Nevers), New Battlefields/Old Laws: Critical Debates from the Hague to Convention to Asymmetric Warfare (forthcoming), “Legal Sanctuaries and Predator Strikes in the War on Terror,” “Programmatic Surveillance and FISA – Of Needles in Haystacks,” and “Providing ‘Supplemental Security’ – The Insurrection Act and the Military Role in Responding to Domestic Crises.” Banks has been quoted extensively in the media, including in The New York Times, The Washington Post, Christian Science Monitor, Los Angeles Times, Associated Press, TIME Magazine, and on National Public Radio, as well on camera with appearances on CNN, MSNBC, CBS, C-SPAN, and other networks. Banks has testified before Congress on several occasions, most recently on the subject of targeting suspected terrorists with unmanned aerial vehicles.

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