Preemptive Strikes and the Burden of Proof
by Donald Ray Burger
Attorney at Law

I am a lawyer. As such, I deal with the burden of proof on a regular basis. The burden of proof is the amount of evidence required to "win" a lawsuit. If you don't bring sufficient proof of your claims to court, you lose.

In the law, the burden of proof is on the party who asserts a proposition. This is based on the rule of argument that "he who asserts must prove." For example, let's say the government arrests you. Just because they say you did something does not make it so. The claim must be proven.

This basic rule applies in civil suits as well as in criminal ones. How much proof is needed varies. In civil cases the standard is "preponderance of the evidence." That is generally taken to mean that the claim is more likely than not to be true. 51%.

Criminal courts require a much higher burden of proof. There, the burden is "beyond a reasonable doubt." The burden is so high because the stakes are so high. An individual's life and liberty are at stake. Thus, a very high burden of proof is required.

We also have a standard called "clear and convincing." The law defines that as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established. This standard of proof is used in civil cases when punitive damages are sought. Clear and convincing proof is considered to be more than a preponderance but less than beyond a reasonable doubt.

As the stakes get higher, the burden of proof increases. When only actual damages are sought, "preponderance" is the standard. When monetary punitive damages are sought, we elevate the burden to "clear and convincing." And when a person's life or liberty are at stake, we demand the highest standard of proof, that of "beyond a reasonable doubt."

These standards apply to situations where individuals or governments seek justice from other individuals. Which brings us to the question of what standard of proof should be required when dealing with a country's enemies.

In the history of the United States, this has not usually been a problem. That is because, as a people, we have usually refrained from armed conflict until we have been presented proof that the enemy has attacked us. In both WWI and WWII there was much debate in the US over whether we should even participate in the European conflicts. In the case of WWI the loss of American lives at the sinking of the Lusitania in 1915 was not sufficient to provoke a declaration of war. It took the German U-Boat policy of sinking any ship headed toward England and the Zimmerman telegram (wherein the Germans proposed an alliance with Mexico in which Mexico would receive New Mexico, Texas, and Arizona upon the defeat of the US) in 1917 to be sufficient cause for the US to enter the war.

In WWII there was a strong movement to stay out of the war. The American First Committee was a powerful force against US entry into WWII. Gerald Ford was one of the original members, as was Potter Stewart, who was later a Supreme Court Justice. The original chairman of the AFC was Robert E. Wood, chairman of the board of Sears, Roebuck. Charles Lindberg was the most famous member. The AFC urged the United States to build a strong defense, but also argued that the risks to our liberty from participating in the war in Europe were such that the United States should stay out of that fight. It was not until the direct attack on the US at Pearl Harbor that President Franklin Roosevelt was able to get Congress to vote a declaration of war.

Today, many argue, things are different. The odds of another country attacking the US are slim. Governments are sitting ducks. The military might of the US is such that war with us is suicidal. Many Americans see the threat to be from terrorists without capitals--and without uniforms. The fact that it is hard to find and kill terrorists has made some seek more reachable targets. Thus, the argument is made that countries that support terrorists, with money or sanctuary or supplies, are now fair targets.

When the Taliban (the ruling thugs in Afghanistan) welcomed al Qaida, they learned that the price of that "friendship" was death. It can be assumed that few dictators will make the mistake of openly welcoming terrorists in the future.

The more likely scenario is that gangsters in charge of countries will offer clandestine aid and comfort to terrorists. The fear most often voiced is that the dictators will distribute so-called weapons of mass destruction to terrorists and let the terrorists do the dirty work so the dictator can plausibly deny involvement.

Which brings us to Iraq and Saddam Hussein. The argument is made that we cannot simply put Saddam under surveillance. The fear is that Saddam (or any number of other thugs who happen to rule countries) will hand dirty bombs or biological weapons to terrorists, who will then use them against the United States. The argument continues that we cannot afford to wait until this happens, because by then it will be too late. The conclusion is that we must kill Saddam (and his closest government goons) so he will not arm terrorists.

My question is, what burden of proof will advocates of this proposition apply? Let's ignore the fact that the raw materials for weapons of mass destruction are everywhere. Let's ignore the fact that several of our allies are thought to sell such weapons or their components to anyone on a regular basis. Let's forget that our own government has a long and current history of supplying all kinds of weapons to our "friends" of the moment, knowing that many of these weapons will be used in ways we will regret.

The question before us is what amount of proof that a particular dictator may give weapons to terrorists will be required before we are justified in preemptively bombing him and his country into oblivion. When the state attempts to take the life of a regular criminal the standard is beyond a reasonable doubt. This is true even though the crime is heinous and the threat created by criminal acts horrendous. There is no law that says that the risk of letting the crime go unpunished allows a lower burden of proof to be used. I know of no logic that requires a different standard when dealing with foreign gangsters.

And in the same way that proof in a criminal courthouse requires more than just the assertions of guilt by the District Attorney, so it is unfair for the "jurors" here to defer to statements from President Bush, Colin Powell or Donald Rumsfield without examining and weighing the evidence presented.

Here, each citizen who chooses to voice an opinion on the war is a "juror." And each "juror" must decide whether the "proof" offered is sufficient to meet the burden of establishing beyond a reasonable doubt that Saddam Hussein is sponsoring terrorists who are bent on attacking the US. This is especially true when the issue is whether to make a preemptive strike on Saddam on the "possibility" that he might aid our enemies in the future.

The proper punishment to Saddam and Iraq should this burden be met must be left for another essay. Also for another essay is a general discussion of ways of dealing with terrorists that involve less than total war. The present essay simply raises one problem: the amount of proof our leaders must provide before we can agree with them to launch a preemptive strike against a particular dictator when that dictator has yet to commit a current and overt act of aggression against the US.

March 3, 2003
Copyright © 2003 Donald Ray Burger. All Rights Reserved.

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