RIVKIN AND CASEY

David Rivkin and Lee Casey (D.C. lawyers with expertise in international law) write in NRO to justify, retrospectively, the war on Iraq. Even on its own terms, though, I'm not sure the argument works.

The heart of their argument is, I think, here:

When dealing with authoritarian anti-American states with a demonstrated history of WMD ambitions, the only safe way, short of regime change, to ensure that they are irreversibly disarmed is to adopt a wide-range of confidence-building measures, which go way beyond the traditional inspection regime. Under this scenario, the burden of persuasion is really on the regime itself. In this regard, as was persuasively argued by the president's national-security adviser, Condoleezza Rice, experience amassed during the "de-nuclearization" of such countries as South Africa and Ukraine demonstrates that a prerequisite to a successful nuclear disarmament is a willing host regime that is prepared to give the international community unrestricted access to its facilities and weapons installations and adopt a wide-range of confidence building measures. (Emphasis added.)

Note that this part of the argument hinges primarily on the character of the regime; if it is authoritarian and anti-American, there are only two options on the path to "safety": a) get the regime to cooperate with what we can call "inspections regime plus," or b) regime change.

Since we're really talking about a short list of countries, what about Iran and North Korea? Rivkin and Casey anticipate this point, although in a fundamentally unsatisfying way:

Both North Korea and Iran also pose serious threats in this area. However, the argument by the administration's critics that, since we are not actively pursuing a regime change option in either Iran or North Korea, we should have done nothing to replace Hussein, is incoherent. It appears to be based in some notion that the United States must treat all of its foreign enemies equally, and that to topple one dictator is somehow unfair when others are left standing. However, this all-or-nothing approach is neither good foreign policy nor a sensible military strategy. International law contains no "equal protection" clause benefiting rogue regimes, and dealing with threats sequentially, and focusing on the one that is both grave and the most manageable is the essence of good statecraft.

Two points. First, it's worth emphasizing that war with Iran and North Korea is clearly on the table for Rivkin and Casey. Second, the argument for war in Iraq seems to boil down to the claim that we had the capacity to go to war there (it was "the most manageable" of the identified threats).

As an aside here: the fancy lawyer talk (the "equal protection" remark) is snide and distracts from the larger argument. Equal protection is at heart a category having to do with reasonableness – whether it is reasonable or justifiable to treat certain citizens differently than others. Courts have insisted that they can require a very high burden of proof from government agents when they treat classes of citizens differently. To continue Rivkin and Casey's uprooting of equal protection from its particular doctrinal context: much like courts do in equal protection analysis, citizens should examine the administration's arguments for treating "rogue regimes" differently. We should ask whether it was rational to go to war against Iraq -- especially given our current empirical knowledge about both what the regime was doing and how invasions tend to turn out with this administration in charge -- rather than against Iran or North Korea. If there are reasons of "statecraft" for not doing the latter, were there reasons of "statecraft" for not doing the former? Comparing cases that the administration itself claims are similar in significant respects should be part of that analysis.

As should an analysis of the mutual effect of our various policies. Rivkin and Casey's main argument implies the necessity -- as a matter of security -- of a war against Iran and North Korea, unless those regimes are either changed (into something better) or become willing to submit to an inspections regime plus. Perhaps strategists in this administration were thinking that such submission would be more likely after a successful war in Iraq. Reference to Libya's turnaround is usually part of that point.

But is it possible that North Korean and Iranian strategists also understand that the U.S. went to war in Iraq because that war was more "manageable" than an invasion of North Korea or Iran? And does anyone really believe that current conditions make an invasion of either country more "manageable" now than it might have been a few years ago?

In order to answer these questions [the 'statecraft' questions above, that is], one needs to compare the danger that was eliminated with the increased danger that arises from a narrowing of our capacities to respond to other dangers. This is true especially if, as Rivkin and Casey appear to argue, Iran, North Korea, and perhaps Syria, are as dangerous as they claim Iraq was in 2002.

I'm not sure about Rivkin and Casey's assessment of the security threat in this area, but even taking those arguments seriously, it's hard to say with any conviction that the "manageable" war in Iraq made us safer.