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April 20, 2009

Better Footing

An administration ends; the war on terror goes on. Victory now depends on finding new ways to fight. By Philip Bobbitt.


Generals are not the only ones who prepare to fight the previous war. Our experience with twentieth-century nation-based terrorists—the IRA in Ireland, the PKK in the Kurdish areas of Turkey, the ETA in Spain’s Basque country, the FLN in Algeria, among others—still dominates much of our thinking about how to deal with twenty-first-century global terrorists. Indeed, the lack of new concepts may well be as deadly to our national security as any lack of vaccines.

New approaches to dealing with global terrorism must first be integrated into our foreign security policies generally. Allies in Europe must be reassured that the United States will not violate the human rights accords to which we are a party. We must also devise a policy that aligns the interests of Afghanistan, India, and Pakistan and isolates the terrorists that threaten them all. We must seek common ground with many states around the world against our universal threats—global terrorists and pirates, the proliferation of nuclear and biological weapons, and civilian catastrophes— even if, in other contexts, these nations are our adversaries.

The “war on terror” is not a nonsensical public relations slogan, however unwelcome this conclusion may be to Pentagon planners or civil liberties advocates. The notion of such a war puzzles us—after all, who would sign the peace treaty?—because we are so trapped in twentieth-century expectations about warfare. But success in war does not always mean the capitulation of an enemy government (as we have seen in Iraq); rather, it varies with the war aim.

In a war against terror, the aim is not the conquest of territory or the advancement of ideology but the protection of civilians. We are fighting a war on terror, not just terrorists. That is evident from the list of targets in the November 2008 attacks in Mumbai, India, in which national liberation terrorists from Kashmir were apparently the outsourced operational arm of a global network with far more ambitious, and more anti-Western, objectives. The Mumbai terrorists did not even bother to issue demands; what they sought was terror itself.

We must seek common ground with many nations against our universal threats even if, in other contexts, these states are our adversaries.

Mexico is potentially our Pakistan—a failing state on our border that can provide a haven for our adversaries, at least some of whom will be privatized terrorists. Imagine a poorer, less-democratic Mexico, and then imagine it harboring extortionists with a small arsenal of deliverable nuclear or biological weapons. That may be a long-term threat, but it requires immediate assistance and cooperation.

But Pakistan is our Pakistan, too, not just India’s or Afghanistan’s problem. “Homeland security” is a dangerous solecism when we are fighting a global adversary that moves easily across borders. If terror is our adversary, then our own health system, for example, is only as secure as the most vulnerable health system overseas that might spawn an epidemic that could quickly reach our shores.

We must use available international institutions—such as the International Criminal Court, to which pirates and other terrorists could be rendered— whenever possible. Yet we must not shrink from augmenting them, for example, by creating a global body similar to NATO but including other democracies, by enlarging the United Nations Security Council to include other great states, and by giving new security responsibilities to the Group of Eight.

Our legislators need more foresight, stockpiling laws for emergencies just as we stockpile vaccines. Perhaps the most obvious would be a provision to replace members of Congress who might be killed or disabled in such numbers that the House of Representatives itself is unable to act. This could easily have occurred on 9/11 if the fourth plane had struck the Capitol, which would have plunged the country into months of martial law.

The Mumbai terrorists did not even bother to issue demands. What they sought was terror itself.

Finally, the Obama administration can have no higher priority than forging links with the private sector to protect what has become the electronic foundation for contemporary life. Unless the government, perhaps through insurance mandates, can persuade private companies to harden themselves to cyber attacks, the deregulated and fragmented owners of our digital backbone will inevitably underfinance such protection.

This last observation points to the interrelation among the three arenas of the war on terror: twenty-first-century terrorists, the commodification of weapons of mass destruction, and the increasing vulnerability of highly developed nations like our own. Educating our public about this new tripartite threat will place enormous demands on our political leadership.

The 2008 presidential election was the end of the first phase of the war on terror. Preventing any attacks on the United States since 9/11 is something for which the Bush administration must be given credit, but credit must also go to the American public, which decisively rejected offshore penal colonies, spurious rationalizations for warfare, secret torture chambers, and contempt for the constitutional and international laws that would forbid such practices. Indeed, by selecting a former law professor as its new president, the country has thoroughly dismissed the notion that law is an obstacle rather than a guide to achieving security.


Philip Bobbitt is the Herbert Wechsler Professor of Jurisprudence and director of the Center for National Security at Columbia Law School. He is also a senior fellow at the Robert Strauss Center for International Security and Law at the University of Texas. He is the author of seven books, of which Terror and Consent:The Wars for the 21st Century (Knopf, 2008) is the most recent. He has served in various capacities in government, including posts at the White House (associate counsel to president), the Senate (legal counsel to the Iran-Contra Committee), the State Department (the counselor on international law), and the National Security Council (director for intelligence programs, senior director for critical infrastructure, and senior director for strategic planning). He is a fellow of the American Academy of Arts and Sciences. He lives in New York, Austin, and London.


This essay appeared in the New York Times on December 14, 2008.

Co-published by Rowman & Littlefield and the Hoover Press is Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, by Richard A. Posner. To order, call the National Book Network at 800.462.6420 or visit www.rowmanlittlefield.com.