No Nuclear Retaliation Without Due Process of Law
The Obama administration's new nuclear policy, to which I alerted readers
several days ago and again
yesterday, contains a very curious doctrine.
As reported by
Jake Tapper:
In the [Nuclear Policy] Review, the US government will pledge to refrain from using nuclear weapons to attack any country in compliance with the Nuclear Non-Proliferation Treaty (NPT) -- even if that country has attacked the US with chemical or biological weapons.
Who will decide whether a country is "in compliance" with the NPT? Normally investigation and fact finding is done by the International Atomic Energy Agency (
IAEA), which acts under the auspices of the U.N.
So does this mean we have deferred to an international organization the underlying fact finding as to whether we have a right under our own policy to retaliate for a chemical or biological attack?
And who can make a binding declaration as to non-compliance?
The
IAEA has made such findings in the past as to "safeguards agreements," but would such a finding be sufficient for nuclear retaliation? Musn't we go to the U.N. Security Council, which normally determines sanctions for non-compliance? Can the President of the United States act unilaterally in finding non-compliance? Who precisely determines non-compliance can be
unclear.
What if the country in question disputes "alleged" non-compliance? Shouldn't the people of that country be entitled to some measure of due process?
After all, if due process rights attach to detainees at Gitmo, why not to people who may be the subject of nuclear retaliation based on a disputed finding of non-compliance with the NPT? Shouldn't the people have a right also to judicial review of such findings, under standards at least as rigorous as those afforded Gitmo detainees?
These are all valid questions once we start down the road of conditioning our ability to retaliate with nuclear weapons on a finding of non-compliance with the NPT.
While it seems absurd to think that a dispute as to NPT compliance might deter U.S. nuclear retaliation, such absurdity is a natural progression from a new policy which creates explicit standards and boundaries as to nuclear retaliation for the use of chemical or biological weapons.
Some things are better left unsaid, and the conditions under which we would engage in nuclear retaliation for chemical or biological attack was one of those things.
But for the President who cannot stop talking, not talking is unfathomable.
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Related Posts:
It's Official - We Will Not Bring Nukes To A Chem or Bio Weapons Fight
Weakness Is The New Strength
http://legalinsurrection.blogspot.co...thout-due.html