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Not By Any Other Name: A Response to Jack Goldsmith on Obama’s Imminence

Published on Lawfare

Jack has been quick to draw parallels (here and here) between the Bush administration’s doctrine of pre-emption, set out in the September 2002 National Security Strategy, and the Obama administration’s approach to jus ad bellum imminence expressed by State Department Legal Adviser Brian Egan in his recent speech at the annual meeting of the American Society of International Law. Although he did not put it quite in these terms, Jack seemed almost to be quoting Shakespeare, or at least praying in aid of his case the sentiment expressed by Juliet: “What’s in a name? that which we call a rose, By any other name would smell as sweet.”

For all the analysis, this is too clever, and misses an essential element. The 2002 National Security Strategy invented new language and, in doing so, suggested that the United States was moving away, with deliberate thought and careful consideration, from established tenets of international law. And when new language was invented unilaterally, and by the United States, it justifiably gave cause for concern that the new policy based on the new language would be avowedly unilateralist as well. And this was hugely problematic.

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