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Thinking About Terror and Law

Wednesday, December 3, 2008

Philip Bobbitt. Terror and Consent: The Wars for the Twenty-First Century. Knopf. 688 pages. $35.00

It would be hard to think of a more barbaric enemy than the Islamists: fanatics flying into office buildings, blowing themselves up in crowded market places, torturing their victims with power drills or cutting the throats of aid workers on videos. They represent evil, as absolute as it gets, and on that we can all agree. Or so one would have thought. After an initial show of resolve among the democracies, it did not take long for fatigue and confusion to set in on how to fight terror, or even to decide what it is.

Rather than focusing on the enemy, many westerners started blaming themselves, and more specifically the United States. The unlovely doctrine of moral equivalence, which equated the behavior of America and the Soviet Union during the Cold War, made its reappearance. The U.S. was again portrayed as a rogue power that indiscriminately kills civilians wherever it goes, insulting to a nation that had ousted the Taliban from Afghanistan and freed Iraq from Saddam Hussein and his psychopath sons.

Having been targeted by al Qaeda as the weak links in the Western defenses, some European nations caved in to terrorist pressure. After the terrorist bombing in Madrid, Spain elected a socialist government, one of whose first acts was to pull the Spanish troop contingent out of Iraq.

And what is a terrorist anyway? The very definition of the word became blurred. Platitudes like “one man’s terrorist is another’s freedom fighter” resurfaced. In Italy, a judge threw out a case against the members of a North African terrorist cell, having decided that their operations were acts of guerilla warfare and hence did not fall under the court’s purview. And in Germany, a court twice released 9/11 co-conspirators, arguing that a defendant had the right to confront his accuser; since the U.S. was unwilling to fly key al Qaeda members to Germany and let them appear in court, justice could not be served.

In other instances, further highlighting the inability of their court systems to cope, Europeans have been unwilling to deport suspected terrorists back to the societies they came from for fear they might be subjected to torture or the death penalty. At the same time, they have themselves been unable to prosecute, because the terrorists have been apprehended before the evidence was complete or because investigators have not wanted to reveal their sources in open court.

To top it off, the terrorists have shown themselves adept at playing off human rights organizations, apparently happy to be so used, against the U.S. government. This has shifted our attention from the victims of terror and their families to the detainees at Guantanamo or to secret cia locations abroad. Our opponents can apparently maim, bomb, and murder with impunity, while we are not permitted to lift a finger. If we had fought World War II in this way, we would surely have lost.

In Terror and Consent: The Wars for the Twenty-First Century, Philip Bobbitt quotes Henry Kissinger, who, after praising the Bush administration for having recognized the global threat of terrorism, criticizes the administration for having been unable “to operationalize a response or develop a language to discuss it.” Drawing on history, law, and military strategy, this is what Bobbitt sets out to do. Currently, he writes, “the entire system of the laws of war, which is predicated on definitions of warfare, on distinctions between the public and the private, on wars that have a beginning and an end, that are conducted on battlefields, that pits states against other states, is coming unraveled.”

As its author emphasizes, this is not primarily a book about al Qaeda or the root causes of terrorism — though bin Laden does make regular appearances — but about the larger phenomenon of twenty-first-century terrorism, of which, according to Bobbitt, al Qaeda is only a harbinger, “a rather primitive prototype of terrorism to come,” be it from eco-terrorists or anti-globalization activists.

Phillip Bobbitt is Herbert Wechsler Professor of Federal Jurisprudence and director of the Center for National Security at Columbia University, and the author in 2003 of The Sword of Achilles, which traced the evolution of warfare from the Italian city-state up to the modern market state. He is also lbj’s nephew, a Democrat who has served in the federal government under both Democratic and Republican presidents; but his views are unlikely to endear him to his fellow Democrats — or to Republicans, for that matter. As he remarks with a certain pride, he manages to upset everyone. But if the mark of a good book is that you instantly start debating with it, this is a good book.

When confronting the terror threat, the first thing to do, according to Bobbitt, is to recognize that we are at war, as the Bush administration did from the moment those four planes struck. Others have been more complacent, dismissing the war on terror as a metaphor, like the war on drugs and the war on poverty, while left-wingers, both at home and abroad, have seen it as a pretext by the administration to expand its power and crush dissent.

Harder to dismiss out of hand are the arguments of one of Britain’s leading military historians, Sir Michael Howard who, in a Foreign Affairs essay entitled “What’s In a Name,” argues that using the word “war” to describe the fight bestows legitimacy on terrorists, conferring on them an elevated status which is precisely what they seek. (Convicted ira gunman Bobby Sands, it will be remembered, went on a hunger strike to have his fellow ira inmates reclassified as prisoners of war.) Howard further argues that seeing the issue in terms of a war makes resorting to force against other nations more tempting, rather than a last option; it stirs up domestic opposition, and it alienates Muslims in the fight for hearts and minds.

Instead, in Howard’s view, we should treat this as a law-enforcement issue and simply see terrorists as the criminals that they are; what is needed is essentially a beefed-up police and intelligence service operation, reinforced by the armed forces as the situation dictates, but conducted within a peacetime framework. This was how the British proceeded in Cyprus, Malaya and Belfast, which were referred to in typical British understated fashion as “emergencies,” or, in the case of Ireland, as the “troubles,” but never as “war.”

The problem with this approach, according to Bobbitt, is that it does not recognize that today’s terrorism represents something radically new in its aims, methods and organization, and sheer destructiveness. The very forces that empower the individual in the market state now benefit the terrorists, which means that the state no longer enjoys a monopoly on waging war. Advances in biotechnology will make it easier to turn biotoxins and viruses into weapons, and Pakistan’s Dr. A.Q. Khan proved more than willing to sell his nuclear know-how to the highest bidder.

Armed in this manner, small groups, operating on their own or on behalf of hidden state sponsors, will be able to inflict massive damage, threatening our very system of government. What keeps government officials awake at night is the fact that these trends are occurring at a faster pace than our defenses or our legal institutions can cope with them.

Therefore, notes Bobbitt, we cannot afford to think about terrorism in narrow tactical policemen’s or prosecutors’ terms, reacting after the event has occurred, or to rely on last-minute barriers like increased airport control and concrete blocks to head off the threat. And he reminds us that catching the terrorists responsible for first attack on the World Trade Center in 1993 did not avert a second attack.

To a certain extent, terrorism can be seen as the result of our success: Having won the Cold War, the U.S. was left as the world’s sole superpower. Because of America’s strengths, its enemies have resorted to asymmetric warfare, striking in oblique fashion.

And just as in the past, Bobbitt explains, where terrorists have mimicked the societies they fought — the golden age of piracy, for instance, coincided with that of the kingly states, with the pirates setting up their own little kingdoms on Tortuga or Jamaica or the Barbary Coast — so in their modes of operation today’s terrorists mimic the market-oriented democracies that they attack by being decentralized, outsourced, and global.

The terrorist networks do not occupy territory in the traditional sense, but move back and forth from wild Third World border regions to Western urban centers. Bobbitt sees their commanders as acting more like political leaders of a state than traditional criminals in the way they form alliances, force concessions, and follow a political program, i.e., the destruction of America. They will enter into relationships with states, but do not take orders or allow themselves to be restrained, as had been the case with terrorist groups in the past. In fact, in Afghanistan, they were very much in the driver’s seat.

Simultaneous spectacle is their trademark. Thus, one of the most common misapprehensions about terror, Bobbitt argues, is the notion that the war on terror is a clash between the medieval and the modern: Al Qaeda’s ideas about a caliphate may be medieval, but its military thinking is very up-to-date. Indeed, as a leading defense analyst has observed, when America inserted small cia and special forces teams into bandit country in Afghanistan, staying in touch among themselves and with their commanders on the other side of the globe via satellite phones, they were using essentially the same tactics that Bin Laden had used in the attack on the Twin Towers.

In addition, the organization has eschewed the rigid hierarchical structures of past terror groups in favor of a loose, semiautonomous cell structure which makes its members harder to hit, and they have made expert use of the Internet and friendly news outlets like al Jazeera to get their message out and to inspire new converts. Bobbitt regards these organizational innovations as bin Laden’s legacy.

As to weapons of mass terrorism, bin Laden has proclaimed it his sacred duty to acquire them. On this he differs from terrorists of an earlier period. Bobbitt quotes Rand Corporation expert Brian Jenkins’s observation from 1974  that “terrorists want a lot of people watching, not a lot of people dead,” not due to humanitarian concerns, but to a realization that this might hurt their cause. Thus, writes Bobbitt, if someone had offered Gerry Adams or Yassir Arafat a ten-kiloton nuclear weapon, he would be dismissed as an agent provocateur — whereas bin Laden’s first reaction would be to ask about the price. Today’s terrorists “want a lot of people dead and a lot of people watching.”

Against a hidden enemy for whom any idea of compromise is alien, traditional deterrence between very visible forces, as we knew it from the Cold War, is not an option; because of the power of modern weapons, neither are gentlemanly notions about absorbing the first blow.

The only choice left is to be proactive. “Preclusion is the new deterrence, the central doctrine of warfare” for the states of consent, writes Bobbitt, be it against terrorist groups or those who harbor them, or those states of terror that threaten others with weapons of mass destruction.

Now, the trouble with anticipatory war is that Hitler gave it rather a bad name in the twentieth century, associating it with unprovoked aggression, and this is reflected in un rules banning the use of force except under very specific circumstances. Preclusion in connection with warfare comes in two forms, Bobbitt reminds us: Preemption and prevention. Preemption involves the use of force in self-defense to forestall an imminent attack, whereas preventive war seeks to nip a more long-term threat in the bud. The un Charter only recognizes the former.

By definition, this would have allowed the Israeli attack on Egypt in 1967, but not Israel’s destruction of Iraq’s Osirak reactor in 1981, which was unanimously condemned by the Security Council. Yet, the buildup of a nuclear capability goes on long before the threat becomes acute and, as Bobbitt notes, when it became clear in 1991 how far Saddam’s program had advanced, there was reason to be mighty grateful to the Israelis.

In short, the threat to civilians has narrowed the gap between the two concepts to a point where, in the words of Michael Walzer, one can detect “little strategic and therefore moral distinction between them.” Using all the means at our disposal, from economic pressure to outright attack when feasible, our aim must be to prevent terrorists or terror states from acquiring weapons of mass destruction. Once they have got them, the nightmare begins.

As an advocate of early intervention, Bobbitt supported the decision to go into Iraq, though at the time he warned that the Iraq war was being sold on the wrong basis. The invasion should have been justified not on of the basis of the weapons Saddam possessed at that point, but on the weapons he was likely to acquire ten years down the line, when the pressure had lifted, as it inevitably would have.

As for the insurgency that followed, it had been wrongly assumed that the war would be a traditional nation-state conflict, which would end with the defeat of the regular Iraqi army and the capture of Baghdad. Instead, what the U.S. faced, in the words of the Quadrennial Defense Review, “was neither a major conventional combat nor a mere peacekeeping mission. It does not require the full array of forces . . . necessary for a conventional war, and it takes far more troops than peacekeeping ordinarily would.”

Against this kind of adversary — an enemy that hides in the civilian population, under hospitals and mosques — relying on superior firepower, as industrial states have done in the past, as the French did in Algeria, the U.S. did in Vietnam, and as the Russians are doing in Chechnya, is not helpful. In fact, it helps the enemy. And concentrating overly on force protection means that you isolate yourself from the people you are supposed to be protecting, and who should be your best source of intelligence.

Instead, according to Bobbitt, our first responsibility in Iraq and Afghanistan is to protect civilians rather than destroying enemy insurgents, and here he concurs with the military’s new counterinsurgency field manual, which was put together concurrently with Bobbitt’s book. As the manual points out, it does little good to kill five insurgents, if the collateral damage you inflict during the operation leads to the recruitment of fifty new ones.

This type of warfare, of course, poses great demands on the individual soldier, requiring him in turn to be warrior, policeman, reconstruction worker, and diplomat, and it should not be forgotten that hesitating a second too long to open fire at a checkpoint can be fatal. But though initially casualties will increase, the payoff comes down the line as the cooperation with the local population increases.

Not only do our military and diplomatic responses need to be proactive in order to respond to the threat we face, so do our laws. Unfortunately, international law as it stands today remains firmly stuck in nineteenth-century ideas of sovereignty. For instance, before 9/11, Bobbitt notes, international law ruled out attacks on terrorist camps in Afghanistan, as such attacks were deemed preventive and hence a violation of the sovereignty of Taliban Afghanistan. “In the future, we may be astounded that we permitted a state, Afghanistan, openly to recruit, train, and arm guerillas to kill Americans and British subjects, limiting ourselves to the occasional arrest in a Pakistani hotel — at a cost of millions — or, when our casualties began to mount, the occasional vague (and expensive) cruise missile attack.”

As things stand, Bobbitt writes, international law protects criminal states by making preventive war illegal. And un rules provide no authorization for humanitarian interventions in the domestic affairs of states like North Korea or Zimbabwe, which starve their populations. Here the un’s Universal Declaration of Human Rights clashes with the organization’s strict notions of state sovereignty.

Edmund Burke once observed that “men are never in a state of total independence of each other” and that the leaders of Revolutionary France were not legitimate representatives of their  people, and hence old notions of sovereignty did not apply. Having divided the world into “states of consent” and “states of terror,” Bobbitt agrees: “A state of terror can never be sovereign.” Lawful nations should be permitted to intervene in order to hinder the spread of wmds, to halt genocide, and prevent humanitarian catastrophes.

The two great legal names in the English-speaking world, Blackstone and Mansfield, embodied two different visions of the law: Sir William Blackstone believed that English common law handed down through the ages is carved in stone; William Murray, first Earl of Mansfield, believed that laws must change according to changing circumstances in the marketplace.

In Bobbitt’s view, the choice facing us today should not be between Machiavelli and Blackstone, but between Blackstone and Mansfield, and here we should take our lead from the latter’s practical approach to the law, rather than from the former’s almost theological reverence for ancient precepts. “International rules must bear a closer resemblance to the actual practices of international actors or these rules will be ignored and a separate set of customs will take the place of law.”

Among Bobbitt’s proposals are changes in the un Charter as to when states may lawfully go to war. He favors very intrusive inspection regimes by the International Atomic Energy Agency. He advocates the creation of a standing international terror court, and suggests making it a crime against humanity to trade in biological or fissile materials for weapons. And he wants changes in the Geneva Convention regarding prisoners of war.

In such reform efforts, it is vital that America is out in front, so that United States strategy and the law can be reintegrated in such a way that the law reinforces the U.S.’s strategic position, a task he accuses the Bush administration of having neglected. Unless we do this, even if it means compromising on various points, Bobbitt notes, America will be perceived as the rogue nation.

“In warfare, we do not seek a level playing field with those who would destroy our basic rights if only they could achieve victory,” he writes. “Without legal reform, however, we are in the paradoxical position of putting ourselves at a potentially fatal disadvantage. If we adhere to the law as it stands, we disable effective action against terror. If we act lawlessly, we throw away the gains of effective action.”

Similarly, on the home front, America needs to be proactive in its lawmaking. As Bobbitt notes, since 9/11, things have been quiet in the U.S., but the situation can go from calm to catastrophe in a flash, and Bobbitt supplies his own list of possible scare scenarios.

The great danger to America is not that terrorists can defeat it militarily: It is that in the panic ensuing from a major attack, be it biological or nuclear, Americans will be tempted to surrender their rights and institutions in favor of an authoritarian regime and martial law. So it is necessary to have in place in advance a proper legal framework that will allow the nation to cope with the situation and preserve our way of government.

Contrary to many of his fellow Democrats, Bobbitt does not believe the Bush administration has curtailed the constitutional rights of Americans. And he will certainly raise some hackles in his party with his insistence that some of the post-Watergate constraints need to be lifted. The rules U.S. agencies currently operate under are fine for catching burglars, but woefully inadequate to deal with the terrorist threat. We cannot keep on strictly separating the domestic and the foreign: 9/11 happened, he argues, precisely because there was no cooperation between the cia and fbi. The war against terror, he adds, is a war without a front: The neat divisions between private and public, and between home and abroad, have become fuzzy.

Accordingly, he favors intelligence gathering such as data mining, increased closed-circuit television surveillance of energy and transportation hubs, statutory rules for the preventive detention of terrorist suspects, and national identification cards. He finds the opposition to national-origin profiling absurd, asking if it really holds true that “it is better that one hundred innocent people die so that one innocent person not be detained.”

We particularly need to protect the nodes that connect our infrastructure. The technological sophistication of our societies have also made them more vulnerable to attack, as proved by the cyber attack on Estonia, which the Russians are believed to be behind. Such targets are more rewarding for terrorists than old fashioned attacks on bridges and power stations.

Since we cannot always identify our enemies, Bobbitt recommends that we concentrate on our own weak spots, especially the risks at the high end of the spectrum — those scenarios that are both the least likely and the most dangerous, because of their potential to disrupt our political system. This is a very different approach from that of the Europeans, who allocate resources  according to anticipated terrorist activity, rather than their own vulnerability to attack. Only France has developed a program to respond to wmds, Bobbitt notes.

One of the legal consequences of maintaining that we are at war is that that the Geneva Convention comes into play. To treat terrorists as soldiers will indeed be repulsive to many. While seeing them as enemy combatants may legitimize them as warriors, Bobbitt points out, this does not mean that we recognize their tactics, which can fall under the category of war crimes.

But presuming that we have in our possession a terrorist with knowledge that might avert one of Bobbitt’s scare scenarios, what should we do? Like Richard Posner, Bobbitt favors retaining an absolute ban on torture, though he expects, as does Judge Posner himself, that security officials in extreme cases will resort to coercion; “if the stakes are high enough,” he quotes Posner as saying, “[even] torture is permissible. No one who doubts that should be in a position of responsibility.”

In a “ticking-bomb” situation, where a terrorist is believed to possess information about an imminent attack on a stadium, or in the slower fuse variety, where U.S. officials have in their custody a terrorist like Khaled Sheikh Mohammed, the chief operational leader of al Qaeda, with knowledge of future operations, you need them to talk.

For Sheikh Mohammed “to refuse to comply with the demand for information would be to maintain a second line of defense,” Bobbitt points out. “The victim would in a sense not have surrendered, at least not fully surrendered, but instead only retreated,” allowing his co-conspirators to regroup.

When these kinds of “Sophie’s-choice” situations are forced upon us, declining to make a choice amounts to moral cowardice: “The right answer to the ‘ticking bomb’ hypothetical, like the right answer to the capital punishment question, does not lie in a regretful but sophisticated disquisition on the human rights of criminals,” Bobbitt writes. Just as one does not want a pacifist to be a general, he notes, an official charged with protecting the public who is unwilling to make these types of choices should resign.

Afterwards, in cases where coercion has been used, a jury would hopefully absolve the interrogator, as his acts, though breaking the law, could be considered justified in the situation. As Posner puts it, “It is better to stick to our perhaps overly strict rules, trusting executive officials to break them when the stakes are high enough to enable the officials to obtain political absolution for their illegal conduct.”

As for rendition, which outsources our interrogations to nations that are less squeamish in their methods, Bobbitt disapproves of the practice on the grounds that it puts us at the mercy of anyone who can expose us, saddling us with the responsibility for those acts, while keeping those who perform them unaccountable. With rendition, “We have delegated our power to accomplish the distasteful.”

“Whatever the outcome of such a debate, we cannot lose sight of the distinction between our ends and those of terrorists, partly because to do so will disable us from using necessary violence to protect the innocent and partly because we might otherwise forget precisely what we are fighting for in the effort to ensure that we win,” he writes, and adds that “Sheik Mohammed is no Jean Moulin,” referring to the heroic French resistance leader, who died under Gestapo torture.

A number of criticisms suggest themselves here: Given Bobbitt’s emphasis on the law, his insistence on retaining an official absolute ban on torture while recognizing that in some cases coercion is necessary seems contradictory, as it leaves us open to charges of hypocrisy when news slips out, as it always will, that rough methods have been used.

A more straightforward approach comes from Alan Dershowitz, who, disliking what he calls an “off-the-books approach to necessity,” favors a system requiring prior authorization from a judge: Just as we do not want to leave the fateful decision to down a hijacked airplane up to a fighter pilot, neither do we want to leave the decision to proceed to torture to an interrogator. In Dershowitz’s view, such choices should be made at the top, with proper accountability.

And subjecting the interrogator to trial by jury, as envisaged by Bobbitt, Dershowitz regards as unfair: If he guesses right, chances are that he will be acquitted. But if he gets it wrong, even for the best of reasons, the understanding of the court is far from assured.

As to the need to combat terrorism in concert with allies, in contrast to the Bush administration’s much criticized fondness for acting unilaterally, allies are indeed a desirable commodity, but it very much depends on who happens to be in charge in Europe. As Bobbitt himself complains, many Europeans do not recognize that we are at war and it may take an event on the magnitude of 9 /11 to bring them around. So for now, the U.S. is stuck with the formula of being “multilateral when we can, unilateral when we must” — words, as Bobbitt rightly reminds us, that were uttered not by George W. Bush, but by Bill Clinton during his second term.

With respect to the causes of terrorism, for fear of turning the issue into a clash of civilizations, it has become polite to say that terror has little to do with religion, and Martin Amis has taken Bobbitt to task for downplaying the role of radical Islam as the motivating fuel for millions of potential rank-and-file terrorists. If you leave that out of the equation, you deprive yourself of the ability to discuss the issue intelligently.

Finally, as both Anatol Lieven and Daniel Byman have complained, Bobbitt’s tendency to force every calamity known to man into his terror paradigm, including climate change and natural disasters, arguing that “it hardly matters whether the forces of destruction arise from militant Islam, North Korean communism or Caribbean hurricanes,” overloads the circuits to the point of rendering the terms meaningless. The danger of trying to press so much into a single volume is that you end up with both too much and too little. There are three or four books in here, wrestling for space.

One question remains: How do we decide what constitutes victory in the war on terror? Unlike the conflicts of the past, whether their aim was the annexation of territory, the acquisition of colonies, or the addition of nations to your ideological camp, the present war, Bobbitt notes, will not end with a formal peace treaty or an official act of surrender:

“There would be no surrender, no occupied capital, there would be no victory parades, there would be the kind of peace that comes from recognizing what we have avoided rather than the release that comes after the passage through a dark period to a safe sunlit station,” he writes. The way we can tell that we have won is that our way of governing ourselves survives intact and that the regions where people are governed with their own consent continue to grow.

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