The Good Soldier versus the Good Cop: Counterterrorism as Police Work1



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The Good Soldier versus the Good Cop: Counterterrorism as Police Work1


By Douglas P. Lackey
“Don’t send the army in, sir.

We are a sword, not a scalpel.”

Bruce Willis, in The Siege [1998]


1. Morality, Context, Counterterrorism.

I wish in this essay to argue that counterterrorism operations, properly considered, are a branch of police work, that they are distinct, therefore, from military operations, that since they involve police work they are subject to the constraints on the use of violence found in good police work, that these constraints are different from the constraints on violence found in good military procedure, and that, consequently, the phrase “war on terrorism,” expresses a category mistake. Unlike the mildly perturbing category mistakes chronicled by Gilbert Ryle, this new category mistake has had catastrophic consequences for peace and the international regime of human rights.

I want at the outset to give some idea of the framework of moral evaluation deployed in this paper. I make no appeal to moral principles or moral theories. I appeal rather to the developing attitudes within two professions, the military and the police. I assume that there are models within these professions as to how soldiers and policemen ought to behave, and that these models evolve in response to internal contradictions and external pressures recognized as legitimate within these professions. In societies in which there is historical memory, these professions move towards increasing rationality through a process of trial and error the value of which is too easily disregarded by those who impose abstract standards on soldiers and policemen. In particular, I will be concerned with the developing attitudes in these two professions towards noncombatant immunity and the use of coercive force.

There is no general answer as to what is a permissible use of coercive force. The question must specify: force used where? when? by whom? by parents against children? by teachers against students? by mental hospital attendants against disruptive psychotics? In each differing social context there is a history of what force has and has not achieved, and this history provides clues as to what force can and should achieve in that given social setting, and what those who work in those settings consider a legitimate use of force. In this moral framework, one establishes the setting, consults the history, and then reaches judgment. In what social context, then, should we place counterterrorism?


1. Counterterrorism Is Not War.

Philosophers make a good living developing counterexamples to general definitions, so I will not attempt a general definition of “war.” But I think that there are paradigm cases of war, and that we can get a good notion of what war is by considering a generalized paradigm case and reasonable deviations from the paradigm case.

In the paradigm case, war is a condition involving (i) two nation states that direct (ii) identifiable and (iii) politically subordinated military forces (iv) at opposing military formations, (v) across lines of battle, (vi) for the purpose of obtaining control of some or all of the opponent’s territory. But of course

(i) wars need not involve two nation states: there can be war between a nation state and a sub-state group, or between two sub-state groups;

(ii) wars need not involve identifiable military forces: there can be guerrilla wars involving forces that lack uniforms or insignia;

(iii) wars need not involve political authorities: there can be wars waged by military dictators or warlords who do not answer to higher civilian authority;

(iv) wars need not involve military force directed at opposing military forces: there can be wars in which the primary use of force is against enemy economic assets;

(v) wars need do not involves borders and front lines: there can be wars waged entirely by naval forces in remote seas, and

(vi) wars need not be directed at obtaining territory: there are wars to obtain political concessions, wars to tune up new equipment, wars to provide exemplary lessons to the world about national resolve. A war might be started to maintain internal order in a nation state suffering from some crisis of authority. It might be some form of symbolic expression, designed to attest to a truth rather than to implement one.

In short, each element of the paradigm case of war can be subtracted and there would still be something that might reasonably be called “war.” What I deny is that all the paradigm elements can be subtracted and there still be war left. And this is what we have with terrorism. Terrorists cells do not constitute a state, nor are they sub-state belligerent groups, controlling and administering some definite piece of territory. They function largely on their own authority, recognizing no chain of responsibility with a political leader at the top. Terrorists do not wear uniforms; they do not identify their equipment with insignia; they do not bear arms openly. With terrorism, there are no front lines, and the taking and holding of territory means little to terrorists. The forces terrorists use are not generally directed enemy territory or even economic assets, but at civilians and civilian structures. Furthermore, terrorists typically have no political agenda, no specific political change they hope to achieve through terrorist acts. The announced goals of terrorists are manifestly unrealizable relative to the means chosen and therefore fall outside the genuine intentions behind acts of terrorism. The guiding idea among terrorists is that there are evil societies and people in the world and it is a good thing to make them suffer. Political demands of greater specificity are largely post hoc rationalizations.

For all these reasons, terrorists are not soldiers, and terrorism is not war. It follows that counterterrorism also is not war. The fact that professional soldiers are often used in counterterrorism operations does not prove the contrary. Professional soldiers are often used for flood relief; it does not follow from this that flood relief is war. If the terrorists are not interested in holding territory and are not interested in achieving a specific political result, then counterterrorism is not war directed at denying territory to the enemy or denying implementation of an enemy agenda. In war, enemy soldiers are captured. In counterterrorism, terrorists are apprehended. The distinction between capture and apprehension shows the conceptual distance between counterterrorism and war.

2. Counterterrorism Is Police Work

Terrorism is not war, and terrorists are not soldiers. The killing of civilians by terrorists is not war, but murder, so the social genre of terrorism is crime, and terrorists should be classified as criminals. The fact that terrorists are often prepared to die perpetrating acts of terrorism, the fact that they seek no financial gain from terrorist acts, are not good reasons for distinguishing them from common criminals and giving them some special belligerent status. Many people commit murder without economic gain in view, and many commit murder in states which have the death penalty and so are undeterred by the prospect of death. That someone is prepared to sacrifice his life in the course of committing a crime neither justifies nor excuses the crime; dying for one’s beliefs is logically distinct from killing for one’s beliefs. Suicide bombers by definition defy prosecution; for them the process of criminal justice cannot come to an end. But it can begin.

If terrorists are criminals, their natural antagonists are the police. The following activities, all vital in counterterrorism, fall within the scope of standard police activity: forensic analysis of terrorist attack sites; forensic analysis of abandoned terrorist camps and lodgings, searches of suspected terrorist lodgings, penetration of cells by undercover agents, installation of wiretaps, surveillance of suspicious sites, tailing of suspects, interviews with civilians who “might have seen something,” checking of leads from tipsters, construction of databases of suspects. Not part of standard police work but a standard part of counterterrorism is the monitoring of foreign news sources and Internet sites related to potential terrorist activities. But such monitoring of sources has become a regular activity since 9/11 of a dedicated counterterrorism unit inside the New York City Police Department. The same counterterrorism unit dispatches detectives to foreign countries that have experienced terrorist incidents. The only type of American counterterrorist activity that that is not handled by the New York City Police Department is the development of signal intelligence (SIGINT). SIGINT requires technical facilities and code-cracking expertise provided by the National Security Agency (NSA). But the NSA is not a military body. It is a thing unto itself.

Consider the two major domestic terrorist incidents in the USA before 9/11, the first World Trade Center Attack in 1993, and the Oklahoma City bombing in 1995. In the 1993 World Trade Center attack, the case was cracked by local police detectives, who traced the truck used in the bombing to a truck rental agency in Jersey City, NJ. (The bombers, amazingly, had returned the truck in order to reclaim their deposit!) In the Oklahoma City case, a local law enforcement arrested bomber Timothy McVeigh one hour after the attack, on the charge of driving without a license plate, and local police held McVeigh until his connection with the bombing was established. In short, both cases were solved by routine police work. Nothing in the investigation of these crimes could be construed as a military operation. It is interesting that in April 2001, one month before McVeigh was scheduled to be executed, a controversy erupted when the FBI admitted that it had failed to deliver to McVeigh’s lawyers hundreds of documents assembled by the prosecution, knowledge of which might have assisted McVeigh in his defense or in appeals regarding his sentence. The fact that a controversy arose regarding the legal discovery process in the McVeigh case is a vivid demonstration of how many Americans in 2004 were still inclined to view the problem of terrorism as falling within the reach of the criminal justice system.

3. The Proper Use of Force By Soldiers

Contrary to popular belief, a good soldier is not someone who will do anything and everything to win. Military personnel themselves recognize developing limits to the use of force by good soldiers; to cross the limits is “conduct unbecoming” a member of the armed forces. What concerns me here, however, are not the restrictions on the use of the force but the permissions.

To begin, all enemy combatants that are not hors de combat can be directly and intentionally killed. Second, noncombatants can be legitimately killed if their killing is an unavoidable side effect of a military operation aimed at some legitimate effect and is proportionate to the importance of that effect.. (The Rule of Double Effect.) Third, military assets can be destroyed at will, as well as civilian vessels carrying military assets. Fourth, certain civilian assets may be legitimate targets of direct attack, including transportation systems for military supplies, transportation centers where lines of communication converge, rail yards, industrial installations producing military material, conventional powers plants, and fuel dumps. There are many ways to phrase these rules, and many ways of explaining and attempting to legitimize the distinction between the “direct aim” of a military operation and its “side effects,” but these subtleties need not concern us here.

The textbook example of the application of these rules is this. Suppose that the destruction of a bridge is a legitimate military objective. If the bridge is blown up, say, enemy troops on the near side of the river will be trapped and captured. Under the rules, it is permissible to use artillery to blow up the bridge, even if it is known that there are civilian houses adjoining the bridge and that some civilians will certainly be killed by the artillery attack (provided that the number of expected civilian casualties is proportional to the military importance of destroying the bridge0. Such civilians are not direct objects of attack; they are not intentional objects of attack; they are not “targeted.” But they do die, and it is correct to say that the artillerymen killed them.

The contemporary Law of Armed Conflict supplies a long list of civilian targets that are not legitimate objects of attack: cultural objects, dams, dykes, nuclear power plants, hospitals, medical institutes, foodstuffs, crops, livestock, irrigation, systems, forests, etc. The list is an inspiring attempt to distinguish military from civilian targets and reduce the suffering of civilians in war. At the same time we must note that anything that is not on the list may be a legitimate target of military operations in full conformity with contemporary standards as to what good soldiers do. Everything that is the enemy’s is fair game, unless some specific argument for exemption is brought forward.

4. The Proper Use of Force By Police

Soldiers are supposed to use deadly force, unless special circumstances argue against it. Policemen, on the other hand, are not supposed to use deadly force, unless the circumstances make it necessary. If you said about a soldier, retiring from the Army, “he was in the service 25 years and never fired his weapon,” that would not be a positive remark; the implication would be that the soldier hadn’t really done his job. 2 But if you said about a cop on retirement, “He was 25 years on the job and never fired his weapon,” that could be part of a retirement eulogy. Cops are supposed to figure out how to get the job done without using their weapons.

When do circumstances make the use of force by police necessary? One might think: whenever force is needed to make an arrest. That is indeed the view in English common law. But this is no longer true in the United States. The guiding principles for the use of force by U.S. policemen work laid down by the U.S. Supreme Court in Tennessee vs. Garner, 471 U.S. 1 (1985). In October 1974, two police officers in Memphis, Tennessee, were dispatched to investigate a house burglary in progress. On arriving at the scene, one officer went behind the house, and saw a suspect fleeing across the backyard. The officer was “reasonably sure” that the suspect was young, small, and unarmed. The suspect climbed up a fence; the officer identified himself and called for the subject to halt. The suspect, who was 15 years old and 5’4’’ tall, continued climbing the fence, and the officer shot and killed him to prevent his escape. The court exonerated the officer, but found that a Tennessee statute, which authorized the use of deadly force by police in cases such as this, violated the Fourth Amendment, which forbids “unreasonable searches and seizures.” The court found the use of force by the officer in this case was wrongful because unreasonable: the pubic interest in the arrest of burglars is less than the public interest in human life.

The restrictions on the use of force deadly by police introduced in Tennessee vs. Garner were refined by the Court in the 1989 case of Graham vs. Connor. Graham, a diabetic, had entered a drugstore in Charlotte, North Carolina to buy medicine but exited before buying the medicine because of long lines. A policemen followed him and attempted to arrest him on suspicion of theft. Graham resisted arrest and explained he needed medicine for diabetes. Officer Conner and several other policemen threw Graham over a car hood, then handcuffed him and threw him in a squad car. Graham sustained multiple injuries, including scarred wrists and a broken foot. The District Courts had exonerated Connor and the other arresting officers on the grounds that although they had caused injuries to Graham, they had not used force in a “malicious or sadistic manner” but had caused these injuries as side effect of the attempt to arrest him. The officers, the District Court argued, had not acted in a “cruel or unusual” manner contrary to the Eight Amendment.

The Supreme Court rejected the relevance of the Eight Amendment, rejected the idea that use of force by police in effecting arrests is permissible unless is “cruel or sadistic,” and rejected the idea that intended goal of the use of force is the determining factor in its legitimacy. Instead the Court reiterated the “reasonableness” standard it had endorsed in Tennessee vs. Garner and found the use of the force by the Charlotte police unreasonable relative to the circumstances

I believe that the verdicts in Tennessee vs. Garner and Graham vs. Connor have moral as well as legal weight. It might appear that an argument based on the Fourth Amendment has force in the United States but no relevance, say, to police work in China. But the argument about the proper use of police force is based on the reasonableness of the use of force relative to one objective of police work that is universal, the arrest of criminals. Is there a legal system in the world that would argue that local conditions dictate unreasonable conduct by the police?

The Tennessee and Graham decisions focus on the use of force by police against suspects in cases when the force might injure the suspect. The courts did not consider limits to use of force by police in cases when the force might cause harm to bystanders. The courts did not need to reach a judgment about this because it is universal presumption of police work that deadly force may not be used by police at all if that force is likely to harm bystanders. In nearly every police standoff in which a perpetrator has seized hostages the police could kill the perpetrator by blowing up perpetrator and hostages both, but no policeman would consider such a course for a moment. Likewise, the police will refrain from mounting an assault on a perpetrator holding hostages for fear that the suspect will kill the hostages. (The exception of course is the case where there is reason to think the perpetrator himself will harm the hostages unless the police intervene.) Again, if a perpetrator seizes a bystander as human shield, the police might apprehend the perpetrator by shooting through the human shield and disabling or killing both perpetrator and shield. I can find no case on record of American police work where such a course of action was taken.

Protection of bystanders from the dangers of police work is an evolving concept in American police work. High speed car chases used to be standard American police activity, and tapes of car chases by police are standard fare on American TV. But in the 1990’s, statistical reviews of car chases revealed that 60 percent of car chases were initiated by police in response to misdemeanors, and these car chases that often resulted in harm to suspects, to police, and to nearby drivers and pedestrians. In New York City, police car chases for years have been restricted to cases where the driver of the chased car is presumed to be an armed and dangerous felon. When former New York Police Commission William Bratton became head of the Los Angeles Police Department in 2002, he pushed the LAPD to forgo car chases in response to misdemeanors. In 2005, Bratton issued regulations that largely forbid the LAPD to fire at moving cars as a means of stopping cars to apprehend a suspect. There has been little public outcry that Bratton’s new policies set inappropriate standards for police work in Los Angeles.



5. The Military and the Police Compared

A good soldier will use any force at hand to defeat enemy soldiers. A good policeman will use only reasonable force to apprehend suspects. A good soldier on occasion will intentionally kill an enemy soldier. A good cop will never intentionally kill a suspect.3 A good soldier will kill civilians if those civilians stand in the way of legitimate military objective. A good cop will not kill civilians to achieve any police objective.

What leaps out from this comparison is that the factor of intent plays a role in good military practice that it does not play in good police practice. Soldiers of forbidden to kill civilians intentionally, but they are permitted to kill them if the intention is to achieve a legitimate military objective. This is one way of stating the Rule of Double Effect. But the Rule of Double Effect plays not role in determining what is a legitimate use of force by the police. My purpose is to exhibit the differences in the practices, not to argue that one practice is better than another,. They function is different context: in particular, the police are working surrounded by their fellow citizens but soldiers are not working surrounded by their fellow citizens. But whatever the reasons for the difference in practices, the fact remains that the practices are radically different.

The world of the good soldier is ruled by Double effect. The world of the good cop is ruled by absolute civilian immunity. Here is a story singled out as good police work by Peter Scharf in The Badge and The Bullet (Praeger, 1980):


“We were walking down the street and we see Sid directing traffic. Sid was a nice old man and we were just about to wave when we see this man run across the street and hit Sid in the back with a long handled axe maybe two feet long. We were stunned, and wee just run across the street, cutting through cars, trucks and buses.”
According to Scharf, the traffic cop somehow stayed on his feet and the assailant with difficulty pulled the axe out of his back. The two policemen drew their weapons but did not fire because a crowd had gathered on the sidewalk across the street. By shouting the two officers distracted the assailant. When the two officers crossed behind the assailant, they demanded he drop the axe. The man instead swung the axe towards the traffic cop. The officers then fired, fatally wounding the assailant.

So two police officers failed to come to the aid of fellow officer in mortal peril, for fear of shooting nearby civilians by accident. One might imagine ground soldiers in a foreign country operating under these restraints, but only when acting under special orders. And certainly artillerymen and bomber pilots have never acknowledged them.



6. The Mixing of Practices.

By definition, police practices should be applied to police problems and military practices should be applied to military problems. That is what they are for, and that is what they developed out of. Only confusion can result when the police are asked to solve military problems and when the military are asked to solve police problems. The police forces of New Orleans did not have the technical expertise to handle the evacuation of New Orleans in August 2005: this required logistic planning on a scale only the military could provide. On the other hand, the American military did not have the expertise to maintain law and order at the street level after the American occupation of Baghdad in April 2003. Arresting looters and recovering stolen goods is police work, but the Baghdad police had been thoughtlessly dismissed by the occupying authorities.

Subtler difficulties arise when military work is mistakenly construed as police work or when police work is mistakenly construed as military work. When a military problem is construed as a police problem the tighter constraints on violence characteristic of police practice limit military operations, a formula for military defeat. This situation often arises in contra-guerilla warfare. When a police problem is construed as military problem, the looser constraints on violence characteristic of military practice are mistakenly applied, usually with lethal results for civilians. It is the latter mistake that principally concerns us here.

On 13 May 1985, Philadelphia police under the direction of Mayor Frank Rizzo advanced on a private home that housed members of MOVE, a radical anarchist organization committed to deep ecology and the abolition of private property. MOVE members had been haranguing passers by with bullhorn speeches, and neighborhood residents had asked the Mayor to throw them out. Given rumors that MOVE possessed guns, the police arrived in a quasi-military formation. Persons inside the house fired on the police. The MOVE house was surrounded and transformed into a war zone. At 5:30 PM a police helicopter dropped a bomb on the house, killing six adults and five children and igniting a fire that destroyed 61 homes in the nearby neighborhood.

Obviously the attack on MOVE was not an example of either good police work or good military practice. My point is that the disaster occurred because a police problem was taken as a military problem. Five children died and a residential city block of Philadelphia was destroyed to stop a few radicals from harassing pedestrians with political speeches.

Problems at the federal police level are subject to the same confusion. Eight years after the MOVE disaster, on 28 February 1993 near Waco Texas, 80 federal agents from the Bureau of Alcohol, Tobacco, and Firearms (ATF), acting on an arrest and search warrant alleging illegal possession of firearms, surrounded a compound of buildings housing Branch Davidians, an apocalyptic Christian sect led by David Koresh. The police arrived heavily armed in trailers disguised as transports for cows. Attempting rapid forceful entry into the compound, they failed to achieve surprise and were met by heavy fire from the Davidians. In the ensuing gun battle, four agents and six Davidians were killed; sixteen agents were wounded. There ensued a 51 day siege during which ATF forces were reinforced by hundreds of FBI agents. On April 19, 2003, police forces assaulted the compound with small tanks (CEVs). Massive amounts of tear gas were injected into the building, and from a distance the building was attacked with automatic weapon fire. A fire broke out within the building and within an hour the 74 people inside were dead, including 21 children under the age of 16.

It is not my purpose here to judge whether Janet Reno, who ordered the raid, or David Koresh, who probably set the fire, bears primary responsibility for the deaths of these children. The point in that by the standards of good police practice any police action that puts children at risk is unconscionable. Any police action that results in the deaths of 21 children is a catastrophic failure. One source of this tragedy was the belief that the proper constraints on violence in this case were the constraints associated with military force, not with police force. The children were “in the way” of getting to Koresh, and Double Effect prevailed. Over the smoking ruins of the Branch Davidian compound, ATF agents raised a flag of victory.

7. A World Historical Category Mistake

On the morning of Sept 11, 2001, I was teaching a class on the ideas of Empedocles, about three kilometers from the World Trade Center in New York City. After watching an immense column of smoke rise in full view from the classroom window, the students and I fled to a local pub on Third Avenue to find out via television what was going on. For the next several hours, streams of people by the thousands flowed by the pub. Some were bleeding, some burned, some in bandages, all following the Mayor’s simple order to “go north.” The consensus in the pub was “This is Pearl Harbor,” a natural thought, but not quite right.

That night on television the President did seem to get it right. He said,

The search is underway for those who are behind these evil acts. I've directed the full resources of our intelligence and law enforcement communities to find those responsible and to bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.

At this point, the President is describing terrorism as a law enforcement problem, not as a military problem. The context is “law enforcement and intelligence.” Terrorists are properly viewed as criminals. Those who “harbor” terrorists are also criminals, since those who aid and abet crime are criminals too. In the days that followed, members of the Administration found difficulties with the criminal justice approach. The hijackers were all dead; obviously they could not brought to justice. As far as could be determined, the planners of the attack were all overseas. They might be in countries with which the United States had no extradition arrangements, or they could be in countries that would refuse extradition because of opposition to the death penalty in the United States. An alternative venue for the trial of persons involved in the attacks would be the International Criminal Court in Rome, but the United States for many years had waged a worldwide campaign against the legitimacy or usefulness of an International Criminal Court. Pursuit of the terrorist by law enforcement agents as criminals would require cooperation with many foreign countries, and cooperation with foreign powers was not the Administration’s strong suit. In the self-righteous spasms that followed 9/11, the administration’s interest in such international negotiations was nil.

The alternative was to redefine terrorism as a military problem. The new approach was unveiled in the President’s address to the Joint Session of Congress, 20 Sept 2001.

And we will pursue nations that provide aid or safe haven to terrorism. Every nation in every region now has a decision to make: Either you are with us or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime

This is not the language of law enforcement and police work. Nations cannot be arrested. This is the language of force and war. The first target was Afghanistan, where, according to the President:



Women are not allowed to attend school. You can be jailed for owning a television. Religion can be practiced only as their leaders dictate. A man can be jailed in Afghanistan if his beard is not long enough.

These are unpleasant facts,4 but hardly a casus belli. However the President continued:



We condemn the Taliban regime. It is not only repressing its own people, it is threatening people everywhere by sponsoring and sheltering and supplying terrorists. By aiding and abetting murder, the Taliban regime is committing murder. And tonight the United States of America makes the following demands on the Taliban:

-- Deliver to United States authorities all of the leaders of Al Qaeda who hide in your land.

-- Release all foreign nationals, including American citizens you have unjustly imprisoned.

-- Protect foreign journalists, diplomats and aid workers in your country.

-- Close immediately and permanently every terrorist training camp in Afghanistan. And hand over every terrorist and every person and their support structure to appropriate authorities.

-- Give the United States full access to terrorist training camps, so we can make sure they are no longer operating.

These demands are not open to negotiation or discussion.

(APPLAUSE)

The Taliban must act and act immediately.

They will hand over the terrorists or they will share in their fate

The list of demands is diverse. The earlier law enforcement theme is repeated: hand over Al Qaeda leaders for the crimes they have perpetrated in the past. But other demands are purely military: close the training camps, for fear of what they might do in the future.

The law enforcement argument drops out and the military argument takes over in the President’s State of Union Address in January 2002:

Our goal is to prevent regimes that sponsor terror from threatening America or our friends and allies with weapons of mass destruction.  Some of these regimes have been pretty quiet since September the 11th.  But we know their true nature.  North Korea is a regime arming with missiles and weapons of mass destruction, while starving its citizens.

Iran aggressively pursues these weapons and exports terror, while an unelected few repress the Iranian people's hope for freedom.

Iraq continues to flaunt its hostility toward America and to support terror.  The Iraqi regime has plotted to develop anthrax, and nerve gas, and nuclear weapons for over a decade.  This is a regime that has already used poison gas to murder thousands of its own citizens -- leaving the bodies of mothers huddled over their dead children.  This is a regime that agreed to international inspections -- then kicked out the inspectors. This is a regime that has something to hide from the civilized world.

States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world.  By seeking weapons of mass destruction, these regimes pose a grave and growing danger.  They could provide these arms to terrorists, giving them the means to match their hatred.  They could attack our allies or attempt to blackmail the United States.  In any of these cases, the price of indifference would be catastrophic

We'll be deliberate, yet time is not on our side.  I will not wait on events, while dangers gather.  I will not stand by, as peril draws closer and closer.  The United States of America will not permit the world's most dangerous regimes to threaten us with the world's most destructive weapons

There is no claim that Iraq, Iran, and North Korea had attacked the United States. There is no claim that the United States is responding to threats in motion, heading towards the United States. There is no claim that terrorists harbored by these states, if any, have threatened or will threaten the United States. What the speech says is that there is evil, actual and potential, in the world, and the United States will use its power to stamp it out. This is not the language of just war and self-defense. This is the language of crusade, and crusades are very far from police operations.

That the President’s new thinking linked counterterrorism not just with war but with preventive war became clear in the President’s West Point Commencement Address in June 2002. The President said:

For much of the last century, America's defense relied on the Cold War doctrines of deterrence and containment. In some cases, those strategies still apply. But new threats also require new thinking. Deterrence -- the promise of massive retaliation against nations -- means nothing against shadowy terrorist networks with no nation or citizens to defend. Containment is not possible when unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies.

Who are to be the targets of America’s new preventive wars? In the West Point speech, the preventive war doctrine was linked to the problem of terrorism. On 17 September 2002, the Bush Administration issued a “National Security Strategy Statement” that extends the preventive war doctrine from terrorist groups to nation states. The statement argues:



It has taken almost a decade for us to comprehend the true nature of this new threat. Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first.

We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents; whose so-called soldiers seek martyrdom in death and whose most potent protection is statelessness.

These remarks represent the final step in the shift from the police model to the military model of counterterrorism. By the time the President spoke these words, the category mistake had already been in place for nearly a year.

8. Consequences of the Category Mistake.

The pursuit of Al Qaeda in Afghanistan should have proceeded as police operation aimed at arresting Bin Laden. To develop a police operation (obviously with military back-up) that penetrated into a foreign power would have rubbed against fine points of international law, but it would have served the interests of justice. Instead, the Administration chose to launch a war to overthrow the Taliban and apprehend Bin Laden along the way. Obviously the use of military means was ineffective, since Bin Laden is still at large. But I am concerned with the consequences of the military model for civilians in Afghanistan.

On July 1, 2002, American planes flying near Kandahar in Afghanstan mistakenly came to believe that they were coming under attack by rifle fire. They released air to surface missiles, and struck an Afghan village in which a wedding party was in process. At least 60 Afghanis at the wedding party were killed, and several dozens more were injured, most of them seriously. The response of the Administration was “bad things happen in war,” and that is the beginning of an excuse if indeed you are really in a war. But if you are engaged in a police operation the death of 60 civilians must be viewed as a catastrophic failure even if some legitimate military objective were in view. Suppose, for example, that the United States had “good intel” that Bin Laden was hiring in the basement of a Manhattan apartment building, that he was about to escape through the sewer system, but if that the apartment building were immediately bombed Bin Laden would surely be killed. The United States could (a) bomb the apartment building, kill Bin Laden, and then justify the civilian deaths via the Rule of Double Effect, or (b) spare the building and spare Bin Laden. No American leader, I wager, would bomb the apartment building: the war model is wrong for New York. But if war is the e wrong model for counterterrorism in New York, it is the wrong model for counterterrorism in Kandahar.

The mix up of paradigms is also visible in American treatment of captives taken in Afghanistan. If what happened in Afghanistan in 2002 was a war, then persons who bore arms openly against the United Sates, when captured, should have prisoner of war status. But persons captured in the fighting in Afghanistan were not given prisoner of war status, on the grounds that terrorists are common criminals who lack the rights of defeated soldiers. But after judging such persons as criminals, the Administration denied them the elements of due process and the rights alleged criminals have under the International Covenant of Civil and Political Rights, including the right to be charged, the right to a speedy trial, and the right of access to counsel.

Either the military model or the police model applies. Captives taken in Afghanistan must be either prisoners of war, with the rights of prisoners of war, or criminal suspects, with the rights of criminal suspects. The category mistake mixes the two paradigms together and destroys them both. The result is the human rights debacle at Guantanamo Bay, which will persist as long as the category mistake persists.

The same mixing of paradigms is apparent in the lead up to the 2003 invasion of Iraq. Acts of war against the United States can and should be met with war by the United Sates. That is the war paradigm. Crimes against international and natural law can and should be met with law enforcement. That is the police paradigm. The Administration argued that because there were crimes there must be war, crossing from one paradigm to the other. To start a war to seize illegal weapons in Iraq replicates the conceptual confusions of MOVE and Waco on a colossal scale. The same pretext has produced the same tragedy.


Baruch College and the Graduate Center, City University of New York
WC 6,622

1 The author wishes to thank Professor John Kleinig for his help with this paper.

2 It came as a great shock to the Department of the Army when a survey after World War II revealed that half of US soldiers in combat zones during World War II had not fired their weapons even once. New training procedures were installed to remedy this problem, including using human silhouettes for target practice rather than the traditional bull’s-eyes. In Vietnam 90% of soldiers in combat fired their weapons.

3 Suspects may be killed by policemen in self-defense, but the right to kill in self-defense is not derived from good police practice. Policemen have that right because everyone has that right.

4 Or factoids. I have been unable to verify the sources of the claims about beards and TV.




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