Preemptive Sovereignty and Avian Pandemics

This paper is an exploration of the thesis that preemption has recuperated the faltering logic of sovereignty. In this recuperative sense, preemption redeems the image of modern state sovereignty while becoming the new governing logic or decision-making process. Whereas the decision making process of sovereignty tends to be organized around a spatial practice (the exception) preemption is organized around a temporal decision making mechanism (contingency). Brian Massumi has noted that deterrence, the spatial strategy of modern sovereign states par excellence, is being replaced by preemption, which constitutes a new horizon of being in the world.² This shift cannot be understood as a postmodern turn, a bad foreign policy or the sign of a corrupt American administration.³ Instead, preemption demands a rethinking of the central enabling concepts of modern political life, in general, and the concept of sovereignty, in particular.

In Preemption: A Knife that Cuts both Ways, Alan Dershowitz argues against the thesis presented here that preemption is replacing and/or displacing sovereignty.⁴ Instead, he argues that modern democracies need a jurisprudence of preemption and, in other words, the doctrine of preemption only need be brought under the authority, if not also legitimacy, of the sovereign state. To this end, he explores when states should or should not be permitted to engage in preemptive practices. Dershowitz acknowledges that modern democracies are moving away from “deterrence and reactive approaches and toward preventative and proactive approaches.”⁵ Since deterrence is organized to prevent calculating, rational evildoers it fails, he argues, to deal with terrorists who are not afraid of death.⁶ A driving concern for Dershowitz, and he assumes for all citizens of democratic societies, is how many false positives (falsely accused, killed, or tortured) would be acceptable to prevent or attempt to prevent a possible terrorist attack? As such, modern democrats will need to come to terms with “the factors that should go into any process of striking the proper balances between the virtues and vices of early intervention, especially when the intervention involves the use of force, power, compulsion, censorship, incarceration and death – and especially when the failure to intervene may also involve comparable threats, dangers and harms.”⁷

Interestingly enough, for Dershowitz, preemption is simultaneously an ancient and contemporary practice. He points to precedence in Thucydides, Christianity, Israeli foreign policy and even eugenics programs designed to “cure” society of crime. Contemporarily, he is also keen to point out that the UN doctrine of Responsibility to Protect and the Precautionary Principle, fall within the presumptive definition of preemption. As such, asking the question “Are you for or against preemption (or “precaution” or “prevention”) thus becomes exposed as a meaningless polemic, as empty of content as the question, Are you for or against deterrence? or, Are you for or against punishment?”⁸ Since, for Dershowitz, punishment and deterrence are already legitimate principles in modern democracies, the task simply becomes: how can preemption be used in a manner that meets the accepted tests for punishment and deterrence? Although many would disagree that punishment and deterrence are beyond reproach, this task seems easy enough, and yet, Preemption does little to create a jurisprudence of preemption. Instead, it offers various lists and scenarios, a justificatory blend between Benthamite utilitarianism and Kantian transcendence, and in the end suggests that future leaders will have to decide the ethical application of preemption by drawing from social values.

One could spend considerable time exploring how social values, futures leaders, lists and scenarios are mutually and discursively reproduced and therefore do not achieve the status of Archimedean external legitimacy that Dershowitz desires. However, perhaps Dershowitz could not have offered a jurisprudence of preemption for other reasons. To use his words, “the role of jurisprudence is to draw difficult lines.”⁹ What is most interesting about the emergence of preemption as a viable way of making decisions about “what is to be done,” however, is that it necessarily emerges from a prior inability to draw lines. Preemption, in this sense, emerges when and where jurisprudence fails. In uncertain times, preemption emerges under the rubric of “ifs:” Would you engage in torture if it would save a million lives...