“While Dangers Gather”: The Bush Preemption Doctrine, Battered Women, Imminence and Anticipatory Self-Defense
Since the Bush Administration issued its controversial Preemption Doctrine, which claims to permit the United States to unilaterally and preemptively attack a putative enemy deemed to be a threat to national security, I have been rethinking the concept of self-defense as it applies to battered women who kill their abusers. When President George W. Bush spoke about the peril of not taking action “while dangers gather,” I thought about the thousands of battered women in the grip of domestic terrorists who must also make decisions about when and whether to use violence to save their own lives.
This article concludes that ASD must be cabined but allowed if we are to ensure the twin aims of security and justice. While we must be able to mold the law to encompass problems posed by unpredictable and lethal terrorists engaged in ruthless patterns of aggression, we must not seek to replace the law with lawless preemption, as does the Bush Doctrine. This article aims to find the middle ground between an overly rigid application of the self-defense doctrine and an overly flexible approach in which any type of perceived danger justifies preemptive action.
In Section II of the article, I discuss terrorism, the international law of self-defense, and the Bush Doctrine. In Section III, I address the problems of intimate violence against women, while I review in Section IV the law of self-defense as applied to women who kill their abusers. In Section V, I analyze the intersection between international and domestic law, and conclude that some form of ASD should be available to women who kill their abusers.
Jane Campbell Moriarty, “While Dangers Gather”: The Bush Preemption Doctrine, Battered Women, Imminence and Anticipatory Self-Defense, 30 New York University Review of Law and Social Change 1 (2005).