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Would Daniel Webster Approve of an Attack on Iraq?

"Anticipatory self-defense is not a new concept," Condoleezza Rice, the national security adviser, told reporters the other day as she was explaining why pre-emption was replacing containment and deterrence as the foundation of American defense policy and serving as the justification for striking Iraq before Iraq strikes."You know, Daniel Webster actually wrote a very famous defense of anticipatory self-defense," she said.
-- New York Times, September 27, 2002.

In evaluating the time when pre-emptive action may be used, Secretary of State Daniel Webster, in dealing with the so-called Caroline Incident in 1837 when British troops attacked and sank an American ship, the then Secretary of State Webster made a point that an intrusion into the territory of another state can be justified as an act of self-defense only in those" cases in which the necessity of that self-defense is instant, overwhelming and leaves no choice of means and no moment of deliberation." It is very relevant on an evaluation of meeting that goal as to just where Iraq stands on the weapons of mass destruction.
-- Sen. Arlen Specter, on the floor of the Senate, October 7, 2002
How did Daniel Webster come to play a role in the current debate?

On the night of December 29, 1837 a Canadian naval force attacked an American ship, the Caroline, which was being used to ferry supplies from New York to a large group of armed rebels plotting the liberation of French Canada from an island on the Canadian side of Niagara Falls. After setting fire to the vessel the Canadian force sent it over the falls. The British, fearful of revolution, justified the attack on the grounds of self-defense. As British minister Henry S. Fox stated:

The piratical character of the steamboat Caroline and the necessity of self-defense and self-preservation under which Her Majesty's subjects acted in destroying that vessel would seem to be sufficiently established.

At the time when the event happened the ordinary laws of the United States were not enforced within the frontier district of the State of New York. The authority of the law was overborne publicly by piratical violence. Through such violence Her Majesty's subjects in Upper Canada had already severely suffered, and they were threatened with still further injury and outrage. This extraordinary state of things appears naturally and necessarily to have impelled them to consult their own security by pursuing and destroying the vessel of their piratical enemy wheresoever they might find her.

The United States took a different position. Secretary of State John Forsyth remonstrated that the attack on the Caroline was an"extraordinary outrage committed from Her Britannic Majesty's Province of Upper Canada on the persons and property of citizens of the United States within the jurisdiction of the State of New York." Still, the United States, then led by President Martin Van Buren, did nothing. As Edwin Firmage notes,"President Van Buren was in no position to press the matter, for American bands of rebel sympathizers were making raids into Canada. Moreover, the disputed issue of the Maine boundary was more important."

In 1840 Van Buren lost to William Henry Harrison, who installed Daniel Webster as secretary of state. Webster, hoping to put the British on the defensive in negotiations over the Maine boundary, argued that the British attack was wholly unjustified. Only under very specific circumstances, he contended, can one nation stage an attack upon another in the name of self-defense:

Under these circumstances, and under those immediately connected with the transaction itself, it will be for her rules of national law the destruction of the"Caroline" is to be defended. It will be for that government to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the"Caroline" was impracticable, or would have been unavailing. It must be shown that daylight could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her in the darkness of night, while moored to the shore, and while unarmed men were asleep on board, killing some and wounding others, and then drawing her into the current above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate which fills the imagination with horror. A necessity for all this the government of the United States cannot believe to have existed. All will see that, if such things be allowed to occur, they must lead to bloody and exasperated war.
The British responded that the attack on the Caroline fit the requirement of self-defense outlined by Webster. Nonetheless, said British envoy Lord Alexander Ashburton, a violation of American territory had taken place without either an explanation or apology. That, he conceded, was an error.

Webster, satisfied that an apology had been made, completed a treaty with Ashburton settling the Maine boundary dispute. In the summer of 1842 President Tyler sent the Webster-Ashburton treaty to the Senate for ratification.

"Thus," concludes Edwin Furmage,"the two governments agreed that, in such a case of immediate necessity as Webster described, an act of self-defense involving invasion of foreign territory, but not directed at foreign government, was not an act of war."

Would Webster have approved of the Bush administration's plan to overthrow Saddam? Firmage, a professor of law at the University of Utah, told HNN that he does not believe the danger Saddam poses is immediate enough to meet the standards Webster outlined.

Source: Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War (University of Illinois Press, 1989), pp. 48-51.