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Law, Morality and Our Nation's Self-defense
September 24, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

Many nations have communicated a willingness to join with the United States in its fight against terrorism. Now some are attempting to attach a condition to their support. These are the nations that insist that any action initiated against terrorists be taken under the authority of the United Nations.

The sentiment expressed in this condition is not limited merely to leaders of other nations, but is being voiced within our own country as well. Some at home have questioned the legal and moral authority of US policy, which was articulated in a speech by President Bush. The disagreement over which purview should prevail prompted Tony Snow of Fox News Sunday to ask National Security Adviser Condoleezza Rice, "Are we willing to hand over control of this operation to the United Nations?"

In her reply, Rice made some very important points. She described the act of September 11 appropriately as "an attack on the United States, an act of war against the United States." She further stated, "The United States has the right to self-defense that is fully recognized in international law."

Rice is referring to a source of law that predates use of multi-lateral treaties, international organizations and the UN. It springs from the philosophy upon which our nation was founded. It is referred to as customary international law. As clarified by Hugo Grotius in the 17th century, customary law is akin to domestic common law. The foundation for these rules of conduct, for individuals as well as nations, lies in something called "natural law."

It is this body of law on which the Declaration of Independence relies, when it states that the justification for the separation of America from Britain is the "Law of Nature and of Nature's God."

It is this body of law implanted deep within us that directs our moral compass and provides us with our sense of right and wrong.

And it is this body of law that affirms the existence of that inalienable right, which allows an individual, a community or a nation to defend itself against aggression.

The right to defend liberty, rooted in natural law, was powerfully announced by Roman statesman MarcusTullius Cicero in the following statement: "There exists a law, not written down anywhere but inborn in our hearts; a law that comes to us not by training or custom or reading but from nature itself...that if our lives are endangered, any and every method of protecting ourselves is morally right."

This moral principle of self-defense is reflected in American domestic law, as seen in civil and criminal statutes and precedents. It is reflected in the constitutional authority granted a president to defend the nation from sudden attack. And it is reflected in the power given to Congress to declare war.

The nation's inherent natural right to defend its citizens fully empowers our representative government to do that which is necessary to restore sufficient security to our country so that freedom remains a way of life.

In his speech to the joint session of Congress, President Bush was emphatic when he said that demands on the Taliban were non-negotiable. Potential enemies and allies alike, who wish to impose conditions, insert limitations or determine the manner in which this war is waged, have been put on notice. No country or international organization is going to tell the United States of America what to do or how to do it, when more than 6,000 of our fellow citizens have been slain. Law, morality and history stand fiercely at our side. Knowing that our actions are both legally and morally justified will help us to meet one of our most critical challenges; that being, to maintain our resolve.

Our march forward begins with this commitment. We will not be swayed, neither by whisperings of doubt or peddling of guilt. As long as terrorist cells operate unrestrained, America is not safe, freedom is not secure and the war must go on.

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James L. Hirsen, J.D., Ph.D.

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