CHAPTER 9

War, Weapons, and Terrorism

On the morning of September 11, 2001, the world watched in horror the televised terrorist attacks on the World Trade Center in New York. Approximately 3,000 people died in the attacks on the World Trade Center, 184 in the attack on the Pentagon, and 40 passengers and crew members in the hijacked plane that went down in Shanksville, Pennsylvania. In addition, nineteen hijackers were killed in the four plane crashes. Following the attacks, President George W. Bush declared war on terrorism and launched a military campaign against Afghanistan’s Taliban government and the Afghan-based terrorist organization al-Qaeda, which was held responsible for the attacks on the World Trade Center. In 2003 President Bush launched a preemptive strike on Iraq which, he argued, not only possessed weapons of mass destruction but was harboring terrorist groups bent on destroying America.

BACKGROUND

The September 11 attack and our response to it raise several moral issues. Is terrorism ever morally justified? What is the morally proper response to terrorism? Are preemptive wars or wars of aggression ever morally acceptable? What means should a government use to protect its citizens from attack or threats of attack?

War involves the use of armed violence between nations or between competing political factions to achieve a political purpose. Although there are some societies, such as the Eskimos, who have no term for war and have never engaged in warfare, war has been a fact of life in most organized states (including tribal states). Indeed, some philosophers such as Thomas Hobbes argue that war is necessary for the survival of a civil society.

The advent of the modern nation-state and the rise of nationalism increased the scale of war. The nineteenth century witnessed efforts to put an end to war through international peace movements and plans to organize nations to ensure peace. After World War I abolitionists sought to control war through the formation of the League of Nations. Despite some initial hope for international peace and cooperation, the wars of the twentieth century dwarfed all previous wars in terms of their destructiveness. In the twentieth century 191 million people were killed either directly or indirectly by war. Half of these people were civilians. The United Nations (UN) was370established in 1945 after World War II to promote world peace and justice. However, this objective was not achieved, possibly because of the UN’s lack of judicial and enforcement power. Since the end of World War II there have been more than four hundred wars. Worldwide, wars kill about 1.6 million people a year. In addition, many millions more have died of starvation and other war-related causes, or are maimed or forced to relocate.¹ Although still high, the number of war-related deaths have been on the decline since 1990, with the exception of conflicts in the Middle East.

Motives for war include self-defense against aggression or threat of aggression, the desire to expand one’s territory either directly or indirectly through control of markets and resources, and ideological/religious motives. The concept of a holy war emerged in the Christian tradition during the Crusades and is found today among certain radical Islamic groups. Most wars have mixed motives. For example, the current war on terrorism is a response to the threat of aggression and also has ideological/religious undertones in that both sides portray it as a war of good against evil and each side claims to be doing God’s will.

The Islamic term jihad, often defined as a holy war, is more broadly defined as an “effort.” This effort includes first of all the notion of the struggle against one’s own internal problems or inner evil, and second, the struggle against injustice in society or the world. Many Muslims understand jihad as peaceful and nonviolent, whereas others interpret it as permitting, and perhaps even requiring, war against external enemies.²

Terrorism involves the use of politically motivated violence to target noncombatants and create intimidation. Terrorism is most often used by groups that lack the power to engage in conventional warfare. It is usually indirect and avoids direct confrontation with enemy military forces. Terrorism can be sponsored by non-state groups, as in the September 11 attacks, the 2008 attacks in Mumbai, India, which killed 179 people, and the 2014 attack in Nigeria by Boko Haram in which over 200 people were killed. The line between war and terrorism is imprecise. Terrorism can be used as a strategy in the context of a war, such as when the United States dropped nuclear bombs on Hiroshima and Nagasaki during World War II. Terrorism can also be domestic, as was the case in the 1995 bombing of the Federal Building in Oklahoma City.

THE PHILOSOPHERS ON WAR AND TERRORISM

Christian natural law theory has had a major impact on thinking about the morality of war. In his Summa Theologica, Thomas Aquinas (1225–1274) lists three conditions that must be met for a war to be just: The war must be waged by a legitimate authority, the cause should be just, and the belligerents should have the right intentions. The just-war tradition is discussed in more detail in the following section.

Italian renaissance thinker Niccolò Machiavelli (1469–1527) maintained that a powerful military was essential for political independence. In The Prince, Machiavelli counsels rulers to disregard whether their actions will be considered virtuous or vicious and instead do whatever is necessary to achieve success in battle quickly and efficiently. Machiavelli was part of the public debate on war up until World War II, when the rise of tyrants like Hitler and the advent of nuclear weapons made his by-any-means-necessary ideas too dangerous as guidelines for war.

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THOMAS AQUINAS, SUMMA THEOLOGICA, PART II, QUESTION 40

Of War …

First Article

Whether It Is Always Sinful to Wage War?

… In order for a war to be just, three things are necessary. First, the authority of the sovereign by whose command the war is to be waged. For it is not the business of a private individual to declare war, because he can seek for redress of his rights from the tribunal of his superior…. And as the care of the common weal is committed to those who are in authority, it is their business to watch over the common weal of the city, kingdom or province subject to them. And just as it is lawful for them to have recourse to the sword in defending that common weal against internal disturbances, when they punish evil-doers, according to the words of the Apostle (Rom. xiii, 4): He heareth not the sword in vain: for he is God’s minister, an avenger to execute wrath upon him that doth evil; so too, it is their business to have recourse to the sword of war in defending the common weal against external enemies. Hence it is said to those who are in authority (Ps. lxxxi. 4): Rescue the poor: and deliver the needy out of the hand of the sinner; and for this reason Augustine says (Contra Faust. xxii. 75): The natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority.

Secondly, a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault. Wherefore, Augustine says (QQ. in Hept., qu. x, super Jos.): A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.

Thirdly, it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil. Hence Augustine says (De Verb. Dom.): True religion looks upon as peaceful those wars that are waged not for motives of aggrandizement, or cruelty, but with the object of securing peace, of punishing evil-doers, and of uplifting the good. For it may happen that the war is declared by the legitimate authority, and for a just cause, and yet be rendered unlawful through a wicked intention. Hence Augustine says (Contra Faust. xxii. 74): The passion for inflicting harm, the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things, all these are rightly condemned in war.

Like Aquinas, Dutch statesman and philosopher Hugo Grotius (1583–1645) believed that there should be limits on war. War should only be fought to enforce rights, and it should be fought within the limits of law and good faith. Grotius’s belief that war should only be fought in the cause of international interests, such as human rights and maintenance of peace, is found in the Charter of the United Nations.

English philosopher Thomas Hobbes (1588–1679) was convinced that fear of death and the need for security are the psychological underpinnings of civilization. Hobbes also believed that humans are naturally selfish. In a state of nature, violence would be the norm and life would be “mean, brutish, and short.” The answer to this unpleasant situation is the formation of a civil society. In civil society the authority to use violence is transferred to the sovereign, whose power372is absolute. “The Sovereign,” writes Hobbes in the Leviathan, “[has] the Right of making Warre and Peace with other Nations, and Commonwealths; that is to say, of Judging when it is for the publique good.”³

Although Hobbes argued for absolute sovereigns as a hedge against war, in fact nations with totalitarian governments seem more susceptible to civil war than democratic governments. Furthermore, even though the formation of governments resolves the problem of constant violence within societies, without an international government the collection of nations still exists in a state of nature. Indeed Hobbes himself believed that nothing short of a world government with a monopoly of power over all nations would be sufficient to ensure peace.

Arab historian and philosopher Ibn Khaldun (1332–1406) likewise believed that war is a universal and inevitable part of human existence. This view is found in the Qu’ran and the Sunna (the practice of Muhammad), both of which hold a prominent place in Muslim ethical/legal discussions about war. According to the Qu’ran, man’s nature is to live in a state of harmony and peace with other living beings. Peace is not just the absence of war, but surrendering to Allah’s will and living in accord with his laws. The prophet Muhammad (c. 570–632) taught that the use of force should be avoided except as a last resort. However, given human capacity for choice we are all capable of being tempted by evil and disobeying Allah’s will. Consequently the Qu’ran gives Muslims permission to fight against a wrongful aggressor.

In his essay “Perpetual Peace” Immanuel Kant (1724–1804) writes that although “the desire of every nation is to establish an enduring peace [nature] uses two means to prevent people from intermingling and to separate them: differences in languages and differences in religion, which do indeed dispose men to mutual hatred and to pretexts for war.” He proposed the creation of a European confederation of states. He also believed that the maintenance of peace requires the establishment of constitutional government, rather than autocracy.

Unlike Kant, Friedrich Nietzsche (1844–1900) glorified war. “A good war hallows every cause,” wrote Nietzsche in Thus Spake Zarathustra. War, he believed, is a natural activity for the Übermensch or “superman.” Nietzsche despised Christian morality that makes a virtue out of submissiveness and turning the other cheek. Nietzsche’s philosophy was adopted by some Nazi intellectuals to justify Adolph Hitler’s war on the Jews.

Utilitarians such as Jeremy Bentham and John Stuart Mill provided much of the philosophical background for the peace movement in the nineteenth century. War is immoral because it causes pain and diminishes happiness. Because of this, another means must be found for resolving international conflicts.

THE JUST-WAR TRADITION

Just-war theory is not a single theory but an evolving framework. Theories of just war are found in both Western and non-Western religious and secular ethics. The just-war tradition addresses the questions of jus ad bellum (the right to go to war), and jus in bello (the just conduct of war).

Jus ad bellum

Jus ad bellum states that the following conditions should be met before going to war:

1. War must be declared and waged by a legitimate authority.

2. There must be a just cause for going to war.373

3. War must be the last resort.

4. There must be a reasonable prospect of success.

5. The violence used must be proportional to the wrong being resisted.⁴

While these conditions seem reasonable in theory, it can be difficult to determine if they are being satisfied. For example, what is meant by a legitimate authority? The Hobbesian belief that the only legitimate authority is an absolute sovereignty is no longer accepted. Today most people regard democratically elected governments as more legitimate. The idea of legitimate authority also raises the question of whether governments are the only legitimate authorities. The United Nations recognizes the right of self-determination of groups of people as well as states. Do groups of disenfranchised people, such as the American colonists who waged war against the British, constitute a legitimate authority?

Also, what constitutes a just cause? Former President George W. Bush reserved the right to make a preemptive or “preventive” strike against any nation he perceived as a threat, even though that nation had not taken any aggressive action against us. Is this consistent with the requirements of jus ad bellum? If so, would we be justified attacking Iran?

Furthermore, how do we know that we have tried all other options before going to war? According to pacifists, there are always nonviolent alternatives to war, including nonviolent resistance toward an occupying force. And how does one determine if the prospect for success is reasonable? When the U.S. and British forces invaded Iraq in 2003, they felt confident that they had an excellent prospect of quick success. Yet several years later the war was still going on. On the other hand, few reasonable people thought the American colonists could win a war against the British Empire.

Finally, how do we determine what is proportional? Was the destruction of thousands of civilian lives in the atomic bombings of Hiroshima and Nagasaki worth the possible loss of American military lives in an invasion of Japan?

Jus in bello

For a war to be conducted justly, the following two conditions should be met:

1. Noncombatants should not be intentionally targeted.

2. The tactics used must be a proportional response to the injury being redressed.

It is possible for a justly waged war to be fought unjustly. For example, even though World War II was a just war from the perspective of the Allies, some people maintain that the scatter bombing of German cities by the Allies (see Case Study 1: Allied Firebombing during World War II) and the dropping of nuclear bombs on Japan violated both principles of jus in bello. The My Lai massacre in the Vietnam War also violated the principle of noncombatant immunity. In this incident American soldiers entered a Vietnamese village and found only women, children, and old men. Frustrated that the male combatants had managed to escape, Lieutenant William Calley ordered his soldiers to open fire on the villagers.

Noncombatants include those who are not agents in directing aggression or carrying it out. However, in modern warfare the line between noncombatants and combatants tends to be blurred. Even children can be drawn into war as combatants, as happened in Vietnam and is happening in the Sudan (see Chapter 10, Case Study 5: The “Bambi Boom” ). Also, is it fair to hold individual soldiers responsible in countries where young people are forcibly conscripted into military service? Indeed, the politicians who launch the wars rarely serve on the front lines.374Along the same lines, is the assassination of terrorist leaders morally justifiable? See Case Study 5: Prisoners of War: Trials and Torture.

CHARTER OF THE UNITED NATIONS

Chapter I, Purposes and Principles

Article 1

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement or international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measure to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all …

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles….

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Used with permission.

Furthermore, is it just to kill enemy combatants who do not pose a direct threat to our lives, as in the case of the bombing of retreating Iraqi soldiers during the First Gulf War? Should we treat those who work in weapons factories as enemy combatants? Just-war tradition also does not give adequate guidance on what constitutes acceptable treatment of prisoners of war or enemy combatants, an issue addressed by David Luban in his reading in this chapter. Is torture morally acceptable as a means of trying to get information from an enemy combatant about a possible future terrorist attack, information that could potentially save hundreds of lives?

In addition, the just-war tradition does not adequately address jus post bellum, or justice after war. Is occupation of a defeated nation or territory morally acceptable and, if so, under what circumstances? To what extent is it just for the victor to attempt to change the political system and culture of the occupied country? Do countries have a moral obligation following a war to make restitution to civilians harmed by war?

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Chapter VII, Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Used with permission.

WEAPONS OF MASS DESTRUCTION

Unlike conventional weapons, weapons of mass destruction (WMD), such as nuclear, chemical, and biological weapons, indiscriminately target both combatants and noncombatants. In the years following World War II nuclear weapons were used as a deterrent by the United States and the Soviet Union. The reasoning behind deterrence is that the consequences of retaliation would be so catastrophic that neither side would risk a first strike with nuclear weapons.

With the end of the cold war, instead of disarmament, the threat of global nuclear war between the two superpowers was replaced by the proliferation of nuclear weapons throughout the world and concerns about the use of nuclear weapons by terrorist groups. In 2002 former President Bush rejected the long-standing commitment of the United States not to use nuclear weapons in a first strike or against nonnuclear nations.

Worldwide, there are about 15,000 nuclear weapons, many of which are ready to launch at a moment’s notice. The United States alone has about 6,500 nuclear weapons positioned at sites in376the United States and Europe. Russia, Britain, France, China, Israel, India, Pakistan, and North Korea also possess nuclear weapons.⁵ Arab nations are particularly concerned about Israel’s arsenal of nuclear weapons, whereas Israel is concerned about the possibility that Iran and other Arab nations may be producing nuclear weapons and other WMDs.⁶ Jonathan Granoff, in “Nuclear Weapons, Ethics, Morals and Law,” questions the legitimacy of using nuclear weapons, even for deterrence, and urges that all countries work toward the elimination of nuclear weapons.

Chemical and biological weapons have been around much longer than nuclear weapons. During the French and Indian War the British gave small-pox-infected blankets to the Delaware Indians. Anthrax and mustard gas were both used by the Germans in World War I. The use, though not the production and possession, of chemical and biological weapons was prohibited by the 1925 Geneva Convention. Despite the prohibition, thousands of people died as a result of Soviet chemical and biological weapons that were used in Afghanistan, Laos, and Cambodia. Saddam Hussein also used chemical weapons against the Kurds in Northern Iraq.

Today many countries have biological weapons programs. Unlike the production of nuclear weapons, which requires expensive facilities and highly enriched uranium, biological and chemical weapons are sometimes called “the poor man’s atomic bomb” because their construction is much cheaper and their effects can be just as devastating. In addition, recent developments in biotechnology and genetic engineering have made it possible to produce biological agents that have greater resistance to detection and treatment. According to the U.S. Department of Transportation more than 220 million people flew between the United States and foreign countries in 2017. It usually takes up to two weeks for the symptoms of a contagious disease contracted in another country or on a plane to appear, which gives potential terrorists ample time to go into hiding.

PACIFISM AND CONSCRIPTION

There are different types of pacifism. Absolute pacifists believe that all violence is wrong, even for self-defense. This position has been criticized for being contradictory because it assumes a right not to be attacked, but not the right of self-defense to defend that right.⁷ It is immoral and irresponsible, critics argue, not to allow countries to defend their citizens against aggression. Some pacifists get around these objections by maintaining that while they have a duty not to meet force with force, this is a supererogatory duty (morality that goes beyond what is normally required) and not one that is binding on all people. Other pacifists oppose violence except for self-defense and may even participate, though not as combatants, in a war of self-defense. In line with this, some argue, one could own a gun but could only use it in self-defense. In his “Remarks on Common-Sense Gun Control,” President Obama lays out some steps citizens of the United States, as a country, could take to cut down on gun violence.

Pacifists actively seek peaceful alternatives to war. Indian political activist Mohandas “Mahatma” Gandhi (1869–1948) opposed all war and advocated nonviolent resistance (satyagraha) as a response to violence and oppression. Satyagraha is not passive “non-violence,” but a method of unconditional love (ahimsa) in action. Peace is not simply the absence of war but the presence of justice and the practice of ahimsa. Others, including Catholic philosopher Thomas Aquinas, reject pacifism as a morally untenable position and argue that the Bible permits and even requires war in some instances.

Conscription, or mandatory military service, raises issues of justice as well as freedom of conscience. The first national draft in the United States was during the Civil War. However, there377was a proviso that allowed a person drafted to buy a substitute for $300 (about a year’s wages). The draft was reinstated in World War I. Sixteen million young American men were conscripted between 1917 and the end of the Vietnam War in 1973.

The military defines conscientious objection (CO) as “opposition to war, in any form, based on a moral, religious, or ethical code.” Pacifists, by definition, are conscientious objectors when it comes to war. There were an estimated 37,000 conscientious objectors in World War II and 200,000 in the Vietnam War.⁸ In addition to proving they are sincere in their opposition to all wars (no easy task), a conscientious objector still must go through boot camp, although not weapons training, and then be assigned to some sort of civilian duty after the training. Only a small percentage of people who apply for CO status receive it. (See Case Study 3: Ehren Watada: The Officer Who Refused to Be Deployed.)

Some objectors choose to engage in civil disobedience and go to prison. Henry David Thoreau, in his essay on “Civil Disobedience” (1849), writes that when breaking an unjust law and engaging in civil disobedience, one should do so in a manner that is consistent with moral principles; in keeping with this, civil dissidents must:

1. Use only moral and nonviolent means to achieve their goal.

2. First make an effort to bring about change through legal means.

3. Be open and public about their actions.

4. Be willing to accept the consequences of their actions.

Other conscientious objectors choose to leave the country or go into the military but refuse to fire on the enemy. Sometimes people become conscientious objectors after joining the military and experiencing war. (See Case Study 3: Ehren Watada: The Officer Who Refused to Be Deployed.) According to a survey conducted by the U.S. military at the end of World War II, up to 75 percent of soldiers in some of the units refused to fire on the enemy or fired their weapons into the air.⁹

Although the Selective Service System still exists and young men are required to register with it within a month of their eighteenth birthday, conscription was abolished in the United States after the Vietnam War. In 2003, the Universal National Service Act was introduced in Congress in response to the strain being placed on the professional military by the war in Iraq. The act was rewritten and reintroduced in 2005 and again in 2006, 2007, 2010, and 2013 without success. If it ever passes, it would reinstate conscription, making it “the obligation of every citizen [male and female] of the United States, and every other person residing in the United States, who is between the ages of 18 and 42 to perform a period of [two years] of national service.” Deferments would be granted to full-time high school students under the age of 20 and exemptions given for extreme hardship or physical or mental disability as well as for those who have “served honorably in the military for at least six months.” People who are conscientious objectors would be assigned to either noncombat or national civilian service.

Americans have a long history of ambivalence about military conscription. The primary moral argument against conscription is based on autonomy. Conscription, which puts the draftee at risk for death or permanent disability, is a violation of a person’s liberty rights and lowers the quality and motivation of the military. Senator Ron Paul disagrees. He argues that conscription discriminates against poorer Americans and constitutes forced servitude. (See Ron Paul, “Conscription—The Terrible Price of War” at the end of this chapter.) In fact, the voluntary army is made up disproportionately of poorer people. One of the complaints of the current voluntary378system is that military recruiters tend to target poor youth in urban centers—the so-called “poverty draft.” During the economic recession that began in 2008, military recruitment figures went way up and all branches of the military exceeded their recruitment goals as Americans who were laid off sought stable employment.

Arguments for the draft focus on social justice and equality. A draft, it is argued, would promote a sense of unity and a common vision. Opponents of the draft note that equality was not promoted when the draft existed. They claim that a universal draft will accomplish only the indoctrination of draftees into nationalistic and militaristic attitudes. On the other hand, research suggests that democracies that have conscripted armies are more cautious about going to war because people are more personally affected.

THE MORAL ISSUES

Respect for Persons

Pacifists argue that war is incompatible with the moral imperative to treat persons as ends-in-themselves. War, by dividing people into us and the enemy, dehumanizes the so-called enemy and creates an us-versus-them/good-versus-evil mentality. In a 2017 Gallup poll, almost half of the Americans polled stated that they had an unfavorable view toward Muslims and Islam. In addition, despite our claim that civilians in enemy countries are innocent, their deaths as “collateral damages” are not given the moral weight of deaths of American combatants.

Jonathan Granoff argues that war violates the principle of reciprocity or the Golden Rule, which is based on respect for persons. On the other hand, those who support the just-war theory, such as Aquinas, point out that for a government to stand by and not defend its citizens against an aggressive attack involves not taking the personhood and security of its citizens seriously.

Rights

In the military, autonomy is restricted for the sake of the greater good. This is particularly evident in conscription, in which the duty of fidelity to one’s country is seen as overriding one’s liberty rights. War raises the issue of the rights of political communities as well. Hobbes regarded the right to security and freedom from violence as one of the most basic rights and the primary purpose of the social contract. This entails the right of a state to defend itself against attack. The right to a preemptive strike is generally regarded as an extension of the right to self-defense. However, how great and how imminent does the threat need to be to justify a preemptive strike? Was the invasion of Iraq morally justified on the grounds of self-defense?

The Universal Declaration of Human Rights and subsequent international human rights laws protect the rights of all people. Noncombatants have a right to life and a basic standard of living. In addition, prisoners of war have a right to decent treatment under international law. However, many nations continue to violate these basic human rights.

The United States has refused to adopt international human rights law, arguing that U.S. law provides adequate protection of human rights. The rights of 171 “enemy combatants” being held, as of May 2011, by the United States government at Guantanamo Bay in Cuba raised questions about the adequacy of this policy. The U.S. Supreme Court in 2006 ruled that former President Bush had overstepped his power in ordering war-crimes trials for detainees. President Obama issued an executive order to close down the prison at Guantanamo Bay and end torture379and harsh interrogation techniques. However, in 2011 he reversed his position, signing the Defense Authorization Bill which prevents the transfer of prisoners from Guantanamo Bay to mainland United States or to other foreign countries. In 2018, President Trump issued an executive order to keep the prison open indefinitely. As of May 2018, there were forty prisoners remaining at Guantanamo. (See Case Study 5 Prisoners of War: Trials and Torture.)

The USA Patriot Act, which was passed soon after September 11, and the targeting of more than 5,000 Arabs and Muslims for detention and questioning also have serious implications for the protection of human rights. (See Case Study 2: USA Patriot/Freedom Act and the War against Terrorism.) The U.S. government justifies these policies on the grounds of national security, arguing that the positive right of U.S. citizens to security outweighs the liberty rights of potential terrorists. In his reading, Luban argues that the war on terrorism may be seriously eroding international human rights. Justice was also an issue in the ban against permitting those who are openly homosexual to serve in the U.S. military. The ban was overturned in 2011.

Consequentialism and Nonmaleficence

The restriction on rights and the harms associated with war are generally justified as a means of preserving the greater good of society. However, is war the most utilitarian means to preserve beneficial ends such as our freedom, culture, and standard of living? Was World War II, for example, the best means, from a utilitarian point of view, of defeating Hitler? What about the war in Iraq? While most people agree that Iraq is better off without Saddam Hussein’s regime, many disagree that an American invasion of Iraq was the best means of achieving this end. The question of consequences has come up again with Iran. What is the best means—war, negotiation, embargos—of reducing these countries’ threat to us and other nations?

Utilitarians such as Bentham and Mill, although not pacifists, were opposed to war because of the grievous harms associated with it. According to the World Health Organization, war is one of the leading public health issues of our time.¹⁰ In the four decades following World War II, more than 100 million people were killed during wars, with millions more dying of starvation and disease related to war.¹¹ Millions of people have lost their homes and sometimes even their homeland as a result of war. More than 6 million people were displaced in Sudan and Sierra Leone alone as a result of civil wars. In addition, there are the harms to the men and women who serve or have served in the military. While thousands have lost their lives in battle, the Wounded Warrior Project estimates that one-third of those who survive suffer from post-traumatic stress disorder (PTSD). Even with the use of remotely operated drones for targeted killings, many of the operators of the drones who are working out of Virginia suffer from PTSD.¹² The National Center for PTSD has also found that, although most vets with PTSD never engage in violence, PSTD is associated with an increased risk of violence, including the use of guns and other weapons.¹³

Principle of Double Effect

The principle of double effect is found in Catholic just-war theory. According to this principle, if a course of action, such as bombing a town, is likely to have two quite different effects, one legitimate and the other not, the action may still be permissible if the legitimate effect was intended (e.g., the disabling of a military installation or the bringing of a war to an end) and the illicit effect (e.g., the killing of civilians) unintended. The principle of double effect was used to justify the unintended killing of civilians in Hiroshima and Nagasaki.

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One of the problems with this principle is that unintentional harms are still harms. Killing civilians unintentionally with another end in mind does not justify knowingly killing them, especially if the unintended harms of the action outweigh the intended benefits. The principle of double effect also reduces people being unintentionally harmed to a means only, and thus violates Kant’s categorical imperative.

Justice

The condition of proportionality in the just-war tradition is based on the principle of justice. This principle states that the violence used must be in proportion to the injury being redressed. Justice is also a concern surrounding conscription and in treatment of citizens in an occupied or conquered country. Some people maintain that justice requires that we share the burden of military service through conscription. It is not fair that the burden of protecting our country is borne primarily by those who come from less privileged parts of society, as tends to be the case with a voluntary military. President Ronald Reagan, contrast opposed a military draft arguing that an all voluntary military is more motivated and effective.¹⁴

The principles of justice as equality raises the question of who should be allowed to have nuclear weapons, a question recently raised with North Korea. In “Nuclear Weapons, Ethics, Morals and Law,” Jonathan Granoff argues that allowing some nations to possess nuclear weapons while forbidding others to do so violates the principle of equality. Justice is also an issue in the treatment of prisoners of war and civilians in occupied countries.

Self-Determination

The United Nations recognizes the right of people to “self-determination, freedom and independence.” The efforts of a victorious country to impose its form of government, its concept of freedom, and its cultural and economic values on another country have been criticized as a violation of a people’s right to self-determination.

John Stuart Mill argued that self-determination and political freedom are not the same. A state has the right to self-determination even if its citizens are struggling for political freedom. Self-help, not occupation and liberation by another country, is the best way for citizens to develop the virtues necessary for self-governance. One of the arguments for withdrawing American troops from Iraq was that Iraqis should be allowed to determine the future course for their country, even if this means civil war.

On the other hand, assisting people in their struggle for freedom does not always violate their right to self-determination. For example, the French assisted the American colonists in the American Revolution. Knowing where to draw the line between interference and assistance in a people’s struggle for self-determination has always been difficult.

Duty of Fidelity

In 2002 U.S. citizen John Walker Lindh was sentenced to twenty years in a federal prison for his association with al-Qaeda. Treason is considered worse than betrayal by a noncitizen because treason violates the duty of fidelity. Living in a country of one’s own volition and benefiting from its protection and advantages create a prima facie duty of fidelity or loyalty to that country. However, what does this duty entail? Does the duty of fidelity justify conscription, or does it merely prohibit treason and terrorist acts against one’s own government? What about instances in which one’s own government is unjust?

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Soldiers and others involved in a war effort also have a duty of fidelity to their commanders. However, this duty must be weighed against other moral duties. The argument by Nazi war criminals that they were just obeying the orders of their superiors was found unacceptable in international courts. People need to take personal responsibility for their choices. The duty of fidelity to serve the country can also come into conflict with the duty of fidelity to one’s children. This raises the question of whether parent(s) of young children should be made to serve on active duty. (See Case Study 4: When Parental Duty Conflicts with Military Duty.)

Personal Responsibility

Soldiers are not merely passive instruments of war. In the My Lai massacre in Vietnam, while most of the soldiers followed orders to “waste” the villagers, others refused to obey. One junior officer even stood between the soldiers and the villagers in an attempt to stop the slaughter.

Conscientious objection in the face of conscription also entails taking personal responsibility for one’s decision. During the Vietnam War many conscientious objectors chose to leave the United States and take up residence in another country. Others engaged in civil disobedience and willingly accepted the punishment for their actions as a means of raising public awareness.

The people who design and produce weapons also must accept responsibility for their actions. Because much of the technology used in the production and delivery of weapons of mass destruction can have both peacetime and military applications, researchers need to be aware how the technology they are developing might be used.

SUMMARY OF READINGS ON WAR, WEAPONS, AND TERRORISM

Granoff, “Nuclear Weapons, Ethics, Morals and Law.” Possession of nuclear weapons is unethical. We should work toward their elimination.

Luban, “The War on Terrorism and the End of Human Rights.” The current war on terrorism may seriously erode international human rights.

Obama, “Gun Safety.” The United States needs better background checks and restrictions on gun ownership.

Paul, “Conscription—The Terrible Price of War.” The draft should not be reinstated.

CONCLUSION

Internationally, the world exists in a state of nature or anarchy. Weapons of mass destruction, globalization, and the development of new technologies make war and terrorism a greater threat than ever before. What is the solution? If the formation of a state under a social contract is the best means for controlling violence between individuals, is international government the answer for controlling violence between nations? Or is war just a natural part of life and is the solution to develop and enforce ethics for war, such as the just-war tradition? In the end, the responsibility lies with each of us as individuals to critically examine the justifications given for war and to work toward making the world more peaceful, whether that means taking up arms or becoming a conscientious objector.

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JONATHAN GRANOFF

Nuclear Weapons, Ethics, Morals, and Law

Attorney Jonathan Granoff is a member of the Lawyers Alliance for World Security and president of the Global Security Institute. In this article, Granoff argues that the possession of nuclear weapons by several modern states not only violates the principle of equality, but also shows a lack of respect for human life. Citing international court rulings regarding the legitimacy of nuclear weapons for the purpose of deterrence, he concludes that we should work toward the elimination of nuclear weapons.

Critical Reading Questions

1. According to Granoff, what is the foundation of ethical norms?

2. What are some universal moral norms that are relevant to the debate on nuclear weapons?

3. What is the relationship between ethical values and law?

4. How do nuclear weapons run contrary to the rules of humanitarian law?

5. What is the policy of nuclear deterrence and how do proponents justify it?

6. On what moral grounds do Judge Weeramantry and other members of the International Court reject the reasoning behind nuclear deterrence?

7. What solution does Granoff propose for the elimination of nuclear weapons?

ETHICAL AND MORAL FRAMEWORK FOR ADDRESSING THE ISSUE

In his concurrence with the historic opinion of the International Court of Justice (ICJ) issued July 8, 1996, addressing the legal status of the threat or use of nuclear weapons,¹ Judge Ranjeva stated, “On the great issues of mankind the requirements of positive law and of ethics make common cause, and nuclear weapons, because of their destructive effects, are one such issue.”² Human society has ethical and moral norms based on wisdom, conscience and practicality. Many norms are universal and have withstood the test of human experience over long periods of time. One such principle is that of reciprocity. It is often called the Golden Rule: “Treat others as you wish to be treated.” It is an ethical and moral foundation for all the world’s major religions.

“Nuclear Weapons, Ethics, Morals and Law,” presented to the Nuclear Non-Proliferation Prepcom of 1999 and The Hague Appeal for Peace, May 1999. Used with permission of the author. Some notes have been omitted.

Several modern states sincerely believe that this principle can be abrogated and security obtained by the threat of massive destruction. The Canberra Commission highlighted the impracticality of this posture: “Nuclear weapons are held by a handful of states which insist that these weapons provide unique security benefits, and yet reserve uniquely to themselves the right to own them. This situation is highly discriminatory and thus unstable; it cannot be sustained. The possession of nuclear weapons by any state is a constant stimulus to other states to acquire them.”

The solution can be stated simply: “States should treat others as they wish to be treated in return.”

It is inconsistent with moral wisdom and practical common sense for a few states to violate this ancient and universally valid principle of reciprocity. Such moral myopia has a corrosive effect on the law which gains its respect largely through moral coherence. Can global383security be obtained while rejecting wisdom universally recognized for thousands of years?

Judge Weeramantry said, “[E]quality of all those who are subject to a legal system is central to its integrity and legitimacy. So it is with the body of principles constituting the corpus of international law. Least of all can there be one law for the powerful and another law for the rest. No domestic system would accept such a principle, nor can any international system which is premised on a concept of equality.”³

LAW AND VALUES

Law is the articulation of values. Values must be based on moral foundations to have credibility. The recognition of the intrinsic sacredness of life and the duty of states and individuals to protect life is a fundamental characteristic of all human civilized values. Such civilized values are expressed in humanitarian law and custom which has an ancient lineage reaching back thousands of years. “They were worked out in many civilizations—Chinese, Indian, Greek, Roman, Japanese, Islamic, modern European among others.” Humanitarian law “is an ever continuous development…. (and) grows as the sufferings of war keep escalating. With a nuclear weapon, those sufferings reach a limit situation, beyond which all else is academic.”⁴ …

We must never forget the awesome destructive power of these devices. “Nuclear weapons have the potential to destroy the entire ecosystem of the planet. Those already in the world’s arsenals have the potential of destroying life on the planet several times over.”⁵

Not only are they destructive in magnitude but in horror as well.

Notwithstanding this knowledge we permit ourselves to continue to live in a “kind of suspended sentence. For half a century now these terrifying weapons of mass destruction have formed part of the human condition. Nuclear weapons have entered into all calculations, all scenarios, all plans. Since Hiroshima, on the morning of 6 August 1945, fear has gradually become man’s first nature. His life on earth has taken on the aspect of what the Qur’an calls ‘long nocturnal journey’, a nightmare whose end he cannot yet foresee.”⁶

Attempting to obtain ultimate security through the ultimate weapon, we have failed, for “the proliferation of nuclear weapons has still not been brought under control, despite the existence of the Non-Proliferation Treaty. Fear and folly may still link hands at any moment to perform a final dance of death. Humanity is all the more vulnerable today for being capable of mass producing nuclear missiles.”⁷ …

A five megaton weapon represents greater explosive power than all the bombs used in World War II and a twenty megaton bomb more than all the explosives used in all the wars in history. Several states are currently poised ready to deliver weapons that render those used in Hiroshima and Nagasaki small. One megaton bomb represents the explosive force of approximately seventy Hiroshimas while a fifteen megaton bomb a thousand Hiroshimas. Judge Weeramantry emphasized that “the unprecedented magnitude of its destructive power is only one of the unique features of the bomb. It is unique in its uncontainability in both space and time. It is unique as a source of peril to the human future. It is unique as a source of continuing danger to human health, even long after its use. Its infringement of humanitarian law goes beyond its being a weapon of mass destruction, to reasons which penetrate far deeper into the core of humanitarian law.”⁸

We are challenged as never before: technology continues to slip away from moral guidance and law chases after common sense.

INTERNATIONAL COURT OF JUSTICE

When the International Court of Justice addressed the legal status of threat or use of nuclear weapons members of the nuclear club, which has since grown, asserted a principled reliance on nuclear weapons. The Court held that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable to armed conflict, and in particular the principles and rules of humanitarian law” and that states are obligated to bring to a conclusion negotiations on nuclear disarmament in all its aspects….

The Court stated unequivocally that the rules of armed conflict, including humanitarian law, prohibit the use of any weapon that is likely to cause unnecessary suffering to combatants; that is incapable of distinguishing between civilian and military targets; that violates384principles protecting neutral states (such as through fallout or nuclear winter); that is not a proportional response to an attack; or that does permanent damage to the environment.

Under no circumstance may states make civilians the object of attack nor can they use weapons that are incapable of distinguishing between civilian and military targets. Regardless of whether the survival of a state acting in self defense is at stake, these limitations continue to hold.

For this reason the President Judge stated in forceful terms that the Court’s inability to go beyond its statement “can in no manner be interpreted to mean that it is leaving the door ajar to the recognition of the legality of the threat or use of nuclear weapons.”⁹ He emphasized his point by stating that nuclear weapons are “the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. Thus the very existence of nuclear weapons is a great challenge to humanitarian law itself.” …

The Court said, “[M]ethods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons … the use of such weapons in fact seems scarcely reconcilable with respect to such requirements.”

Discordance between the incompatibility of these devices with the requirements of humanitarian law, the assertion that there could be possible instances in which their use could be legal and the reliance on the doctrine of deterrence compelled the Court to seek a resolution: “the long promised complete nuclear disarmament appears to be the most appropriate means of achieving that result.” The requirements of moral coherence and ethical conduct and the need for “international law, and with it the stability of international order which it is intended to govern,” drive the imperative of nuclear disarmament.

ONGOING PROBLEM

Legal and moral questions continue to loom before us. We are not faced with nuclear policies founded on a strategy of dropping depth charges in mid-ocean or bombs in the desert. What the world faces is nuclear deterrence with its reliance on the horrific destruction of vast numbers of innocent people, destruction of the environment rendering it hostile to generations yet to be blessed with life.

Deterrence proponents claim that nuclear weapons are not so much instruments for the waging of war but political instruments “intended to prevent war by depriving it of any possible rationale.”¹⁰ The United States has boldly argued that because deterrence is believed to be essential to its international security that the threat or use of nuclear weapons must therefore be legal. The United States representative stated: “If these weapons could not lawfully be used in individual or collective self defense under any circumstances there would be no credible threat of such use in response to aggression and deterrent policies would be futile and meaningless. In this sense, it is impossible to separate the policy of deterrence from the legality of the use of the means of deterrence. Accordingly, any affirmation of a general prohibition on the use of nuclear weapons would be directly contrary to one of the fundamental premises of the national security policy of each of these many states.”¹¹

It is clear that deterrence is designed to threaten massive destruction which would most certainly violate numerous principles of humanitarian law. Additionally, it strikes at generations yet unborn.

Even in the instance of retaliation the moral absurdity challenges us. As Mexico’s Ambassador Sergio Gonzalez Galvez told the Court, “Torture is not a permissible response to torture. Nor is mass rape acceptable retaliation to mass rape. Just as unacceptable is retaliatory deterrence—‘You burnt my city, I will burn yours.’”¹²

Professor Eric David, on behalf of the Solomon Islands, stated, “If the dispatch of a nuclear weapon causes a million deaths, retaliation with another nuclear weapon which will also cause a million deaths will perhaps protect the sovereignty of the state suffering the first strike, and will perhaps satisfy the victim’s desire for revenge, but it will not satisfy humanitarian law, which will have been breached not once but twice; and two wrongs do not make a right.”¹³

Judge Weeramantry rigorously analyzed deterrence theory:

1. Intention: “Deterrence needs to carry the conviction to other parties that there is a real intention to use those weapons in the event of an attack by that other party. A game of bluff does not convey that intention, for it is difficult to385persuade another of one’s intention unless one really has that intention. Deterrence thus consists in a real intention to use such weapons. If deterrence is to operate, it leaves the world of make believe and enters the field of seriously intended military threats.”¹⁴

2. Deterrence and Mere Possession: “Deterrence is more than the mere accumulation of weapons in a storehouse. It means the possession of weapons in a state of readiness for actual use. This means the linkage of weapons ready for immediate take off, with a command and control system geared for immediate action. It means that weapons are attached to delivery vehicles. It means that personnel are ready night and day to render them operational at a moment’s notice. There is clearly a vast difference between weapons stocked in a warehouse and weapons so ready for immediate action. Mere possession and deterrence are thus concepts which are clearly distinguishable from each other.”¹⁵

For deterrence to work one must have the resolve to cause the resulting damage and devastation….

While deterrence continues to place all life on the planet in a precarious position of high risk, one must wonder whether it provides any possible security against accidental or unauthorized launches, computer error, irrational rogue actions, terrorist attack, criminal syndicate utilization of weapons and other irrational and unpredictable, but likely, scenarios.

Did the Court undermine the continued legitimacy of deterrence? The Court stated clearly that “if the use of force itself in a given case is illegal—for whatever reason—the threat to use such force will likewise be illegal.”¹⁶

The moral position of the nuclear weapons states is essentially that the threat to commit an illegal act—massive destruction of innocent people—is legal because it is so horrible to contemplate that it ensures the peace. Thus the argument is that the threat of committing that which is patently illegal is made legal by its own intrinsic illogic….

An unambiguous political commitment by the nuclear weapon states to the elimination of nuclear weapons evidenced by unambiguous immediate pledges never to use them first as well as placing the weapons in a de-alerted posture pending their ultimate elimination will promptly evidence the good faith efforts by the nuclear weapon states to reduce our collective risks. These steps increase our collective security, but are hardly enough to meet the clear decision of the court and the dictates of reason. Only commencement in good faith of multilateral negotiations leading to elimination of these devices will bring law, morals, ethics and reason into coherence. Only then will we be able to tell our children that ultimate violence will not bring ultimate security, a culture of peace based on law, reason and values will….

NOTES

1. Legality of the Threat or Use of Nuclear Weapons, General List No. 95 (Advisory Opinion of the International Court of Justice of July 8, 1996). Unless otherwise noted, references are to this opinion, which was requested by the General Assembly.

2. Opinion of Judge Ranjeva, para. 105(2)E1.

3. Opinion of Judge Weeramantry, V4.

4. Ibid., I 5.

5. Opinion of Judge Weeramantry, II 3(a).

6. Opinion of President Judge Bedjaoui, para. 2.

7. Ibid., para. 5.

8. Opinion of Judge Weeramantry, II para. 3.

9. Opinion of President Judge Badjaoui, para. 20.

10. Marc Perrinde Brichambaut, France, Verbatim record (trans.), 1 November 1995, p. 33.

11. Michael Matheson, US, Verbatim record, 15 November 1995, p. 78.

12. Verbatim record, 3 November 1995, p. 64.

13. Verbatim record (trans.), 14 November 1995, p. 45.

14. Opinion of Judge Weeramantry, VII 2(v).

15. Ibid.

16. Para. 47.

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Discussion Questions

1. Discuss whether the possession of nuclear weapons and the strategy of deterrence can be justified under just-war theory as explicated by Aquinas.

2. India and Pakistan, both nations with nuclear weapons, have more than once been on the brink of war. Discuss how the United Nations and the United States should respond, if at all, to the threat of nuclear war between the two nations.

3. Discuss whether the mere possession (or suspicion) of weapons of mass destruction by a country, such as Iran, that is a potential threat to another country justifies a preemptive strike. Support your answer, using specific examples.

4. Was the dropping of nuclear bombs on Hiroshima and Nagasaki in World War II an example of war or of terrorism? Was the bombing of these two cities morally justified? Discuss how Granoff and a just-war theorist would each answer this question.

5. President Obama says it’s time to rid the world of nuclear weapons. However, he also says he will not commit to the United States’ giving up nuclear weapons until other countries do so. Is this position reasonable? Working in small groups, develop a policy for helping Obama rid the world of nuclear weapons.

DAVID LUBAN

The War on Terrorism and the End of Human Rights

David Luban is a professor of law and philosophy at Georgetown University Law Center. In his reading he notes that the United States government, in its war on terrorism, has blurred the line between the law model and the war model approaches by denying terrorist suspects the protections of either model. Luban concludes that because of this the war on terrorism may seriously erode international human rights.

Critical Reading Questions

1. What is the model of war and the model of law? What are the advantages and disadvantages of each model?

2. What is the hybrid war–law approach and why, according to Luban, did Washington adopt it?

3. What is the legal status of terrorist suspects imprisoned at Guantanamo Bay, and what rights do they have under the hybrid war–law model?387

4. What is the source of the term “enemy combatant” and how does the hybrid war–law model go beyond the original meaning of the term?

5. What is the argument against the hybrid war–law model?

6. According to Luban, how does the war on terrorism threaten international human rights?

7. How does the war on terrorism differ from other kinds of wars?

8. According to Luban, how has the war on terrorism been used by governments as a model to justify attacks on insurgents?

David Luban, “The War on Terrorism and the End of Human Rights” from War After September 11, ed. Verna V. Gehring. Copyright (c) 2003 by Rowman & Littlefield Publishers, Inc. Used by permission of Rowman & Littlefield Publishers, Inc.

In the immediate aftermath of September 11, President Bush stated that the perpetrators of the deed would be brought to justice. Soon afterwards, the President announced that the United States would engage in a war on terrorism. The first of these statements adopts the familiar language of criminal law and criminal justice. It treats the September 11 attacks as horrific crimes—mass murders—and the government’s mission as apprehending and punishing the surviving planners and conspirators for their roles in the crimes. The War on Terrorism is a different proposition, however, and a different model of governmental action—not law but war. Most obviously, it dramatically broadens the scope of action, because now terrorists who knew nothing about September 11 have been earmarked as enemies. But that is only the beginning.

THE HYBRID WAR–LAW APPROACH

The model of war offers much freer rein than that of law, and therein lies its appeal in the wake of 9/11. First, in war but not in law it is permissible to use lethal force on enemy troops regardless of their degree of personal involvement with the adversary. The conscripted cook is as legitimate a target as the enemy general. Second, in war but not in law “collateral damage,” that is, foreseen but unintended killing of non-combatants, is permissible. (Police cannot blow up an apartment building full of people because a murderer is inside, but an air force can bomb the building if it contains a military target.) Third, the requirements of evidence and proof are drastically weaker in war than in criminal justice. Soldiers do not need proof beyond a reasonable doubt, or even proof by a preponderance of evidence, that someone is an enemy soldier before firing on him or capturing and imprisoning him. They don’t need proof at all, merely plausible intelligence. Thus, the U.S. military remains regretful but unapologetic about its January 2002 attack on the Afghani town of Uruzgan, in which 21 innocent civilians were killed, based on faulty intelligence that they were al Qaeda fighters. Fourth, in war one can attack an enemy without concern over whether he has done anything. Legitimate targets are those who in the course of combat might harm us, not those who have harmed us. No doubt there are other significant differences as well. But the basic point should be clear: given Washington’s mandate to eliminate the danger of future 9/11s, so far as humanly possible, the model of war offers important advantages over the model of law.

There are disadvantages as well. Most obviously, in war but not in law, fighting back is a legitimate response of the enemy. Second, when nations fight a war, other nations may opt for neutrality. Third, because fighting back is legitimate, in war the enemy soldier deserves special regard once he is rendered harmless through injury or surrender. It is impermissible to punish him for his role in fighting the war. Nor can he be harshly interrogated after he is captured. The Third Geneva Convention provides: “Prisoners of war who refuse to answer [questions] may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” And, when the war concludes, the enemy soldier must be repatriated.

Here, however, Washington has different ideas, designed to eliminate these tactical disadvantages in the traditional war model. Washington regards international terrorism not only as a military adversary, but also as a criminal activity and criminal conspiracy. In the law model, criminals don’t get to shoot back, and their acts of violence subject them to legitimate punishment.388That is what we see in Washington’s prosecution of the War on Terrorism. Captured terrorists may be tried before military or civilian tribunals, and shooting back at Americans, including American troops, is a federal crime (for a statute under which John Walker Lindh was indicted criminalizes anyone regardless of nationality, who “outside the United States attempts to kill, or engages in a conspiracy to kill, a national of the United States” or “engages in physical violence with intent to cause serious bodily injury to a national of the United States; or with the result that serious bodily injury is caused to a national of the United States”). Furthermore, the U.S. may rightly demand that other countries not be neutral about murder and terrorism. Unlike the war model, a nation may insist that those who are not with us in fighting murder and terror are against us, because by not joining our operations they are providing a safe haven for terrorists or their bank accounts. By selectively combining elements of the war model and elements of the law model, Washington is able to maximize its own ability to mobilize lethal force against terrorists while eliminating most traditional rights of a military adversary, as well as the rights of innocent bystanders caught in the crossfire.

A LIMBO OF RIGHTLESSNESS

The legal status of al Qaeda suspects imprisoned at the Guantanamo Bay Naval Base in Cuba is emblematic of this hybrid war–law approach to the threat of terrorism. In line with the war model, they lack the usual rights of criminal suspects—the presumption of innocence, the right to a hearing to determine guilt, the opportunity to prove that the authorities have grabbed the wrong man. But, in line with the law model, they are considered unlawful combatants. Because they are not uniformed forces, they lack the rights of prisoners of war and are liable to criminal punishment. Initially, the American government declared that the Guantanamo Bay prisoners have no rights under the Geneva Conventions. In the face of international protests, Washington quickly backpedaled and announced that the Guantanamo Bay prisoners would indeed be treated as decently as POWs—but it also made clear that the prisoners have no right to such treatment. Neither criminal suspects nor POWs, neither fish nor fowl, they inhabit a limbo of rightlessness. Secretary of Defense Rumsfeld’s assertion that the U.S. may continue to detain them even if they are acquitted by a military tribunal dramatizes the point.

To understand how extraordinary their status is, consider an analogy. Suppose that Washington declares a War on Organized Crime. Troops are dispatched to Sicily, and a number of Mafiosi are seized, brought to Guantanamo Bay, and imprisoned without a hearing for the indefinite future, maybe the rest of their lives. They are accused of no crimes, because their capture is based not on what they have done but on what they might do. After all, to become “made” they took oaths of obedience to the bad guys. Seizing them accords with the war model: they are enemy foot soldiers. But they are foot soldiers out of uniform; they lack a “fixed distinctive emblem,” in the words of The Hague Convention. That makes them unlawful combatants, so they lack the rights of POWs. They may object that it is only a unilateral declaration by the American President that has turned them into combatants in the first place—he called it a war, they didn’t—and that, since they do not regard themselves as literal foot soldiers it never occurred to them to wear a fixed distinctive emblem. They have a point. It seems too easy for the President to divest anyone in the world of rights and liberty simply by announcing that the U.S. is at war with them and then declaring them unlawful combatants if they resist. But, in the hybrid war–law model, they protest in vain.

Consider another example. In January 2002, U.S. forces in Bosnia seized five Algerians and a Yemeni suspected of al Qaeda connections and took them to Guantanamo Bay. The six had been jailed in Bosnia, but a Bosnian court released them for lack of evidence, and the Bosnian Human Rights Chamber issued an injunction that four of them be allowed to remain in the country pending further legal proceedings. The Human Rights Chamber, ironically, was created under U.S. auspices in the Dayton peace accords, and it was designed specifically to protect against treatment like this. Ruth Wedgwood, a well-known international law scholar at Yale and a member of the Council on Foreign Relations, defended the Bosnian seizure in war-model terms. “I think we would simply argue this was a matter of self-defense. One of the fundamental rules of military law is389that you have a right ultimately to act in self-defense. And if these folks were actively plotting to blow up the U.S. embassy, they should be considered combatants and captured as combatants in a war.” Notice that Professor Wedgwood argues in terms of what the men seized in Bosnia were planning to do, not what they did; notice as well that the decision of the Bosnian court that there was insufficient evidence does not matter. These are characteristics of the war model.

More recently, two American citizens alleged to be al Qaeda operatives (Jose Padilla, a.k.a. Abdullah al Muhajir, and Yasser Esam Hamdi) have been held in American military prisons, with no crimes charged, no opportunity to consult counsel, and no hearing. The President described Padilla as “a bad man” who aimed to build a nuclear “dirty” bomb and use it against America; and the Justice Department has classified both men as “enemy combatants” who may be held indefinitely. Yet, as military law expert Gary Solis points out, “Until now, as used by the attorney general, the term ‘enemy combatant’ appeared nowhere in U.S. criminal law, international law or in the law of war.” The phrase comes from the 1942 Supreme Court case Ex parte Quirin, but all the Court says there is that “an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property” would “not … be entitled to the status of prisoner of war, but … [they would] be offenders against the law of war subject to trial and punishment by military tribunals.” For the Court, in other words, the status of a person as a non-uniformed enemy combatant makes him a criminal rather than a warrior, and determines where he is tried (in a military, rather than a civilian, tribunal) but not whether he is tried. Far from authorizing open-ended confinement, Ex parte Quirin presupposes that criminals are entitled to hearings: without a hearing how can suspects prove that the government made a mistake? Quirin embeds the concept of “enemy combatant” firmly in the law model. In the war model, by contrast, POWs may be detained without a hearing until hostilities are over. But POWs were captured in uniform, and only their undoubted identity as enemy soldiers justifies such open-ended custody. Apparently, Hamdi and Padilla will get the worst of both models—open-ended custody with no trial, like POWs, but no certainty beyond the U.S. government’s say-so that they really are “bad men.” This is the hybrid war–law model. It combines the Quirin category of “enemy combatant without uniform,” used in the law model to justify a military trial, with the war model’s practice of indefinite confinement with no trial at all.

THE CASE FOR THE HYBRID APPROACH

Is there any justification for the hybrid war–law model, which so drastically diminishes the rights of the enemy? An argument can be offered along the following lines. In ordinary cases of war among states, enemy soldiers may well be morally and politically innocent. Many of them are conscripts, and those who aren’t do not necessarily endorse the state policies they are fighting to defend. But enemy soldiers in the War on Terrorism are, by definition, those who have embarked on a path of terrorism. They are neither morally nor politically innocent. Their sworn aim—“Death to America!”—is to create more 9/11s. In this respect, they are much more akin to criminal conspirators than to conscript soldiers. Terrorists will fight as soldiers when they must, and metamorphose into mass murderers when they can.

Furthermore, suicide terrorists pose a special, unique danger. Ordinary criminals do not target innocent bystanders. They may be willing to kill them if necessary, but bystanders enjoy at least some measure of security because they are not primary targets. Not so with terrorists, who aim to kill as many innocent people as possible. Likewise, innocent bystanders are protected from ordinary criminals by whatever deterrent force the threat of punishment and the risk of getting killed in the act of committing a crime offer. For a suicide bomber, neither of these threats is a deterrent at all—after all, for the suicide bomber one of the hallmarks of a successful operation is that he winds up dead at day’s end. Given the unique and heightened danger that suicide terrorists pose, a stronger response that grants potential terrorists fewer rights may be justified. Add to this the danger that terrorists may come to possess weapons of mass destruction, including nuclear devices in suitcases. Under circumstances of such dire menace, it is appropriate to treat terrorists as though they embody the most390dangerous aspects of both warriors and criminals. That is the basis of the hybrid war–law model.

THE CASE AGAINST EXPEDIENCY

The argument against the hybrid war–law model is equally clear. The U.S. has simply chosen the bits of the law model and the bits of the war model that are most convenient for American interests, and ignored the rest. The model abolishes the rights of potential enemies (and their innocent shields) by fiat—not for reasons of moral or legal principle, but solely because the U.S. does not want them to have rights. The more rights they have, the more risk they pose. But Americans’ urgent desire to minimize our risks doesn’t make other people’s rights disappear. Calling our policy a War on Terrorism obscures this point.

The theoretical basis of the objection is that the law model and the war model each comes as a package, with a kind of intellectual integrity. The law model grows out of relationships within states, while the war model arises from relationships between states. The law model imputes a ground-level community of values to those subject to the law—paradigmatically, citizens of a state, but also visitors and foreigners who choose to engage in conduct that affects a state. Only because law imputes shared basic values to the community can a state condemn the conduct of criminals and inflict punishment on them. Criminals deserve condemnation and punishment because their conduct violates norms that we are entitled to count on their sharing. But, for the same reason—the imputed community of values—those subject to the law ordinarily enjoy a presumption of innocence and an expectation of safety. The government cannot simply grab them and confine them without making sure they have broken the law, nor can it condemn them without due process for ensuring that it has the right person, nor can it knowingly place bystanders in mortal peril in the course of fighting crime. They are our fellows, and the community should protect them just as it protects us. The same imputed community of values that justifies condemnation and punishment creates rights to due care and due process.

War is different. War is the ultimate acknowledgement that human beings do not live in a single community with shared norms. If their norms conflict enough, communities pose a physical danger to each other, and nothing can safeguard a community against its enemies except force of arms. That makes enemy soldiers legitimate targets; but it makes our soldiers legitimate targets as well, and, once the enemy no longer poses a danger, he should be immune from punishment, because if he has fought cleanly he has violated no norms that we are entitled to presume he honors. Our norms are, after all, our norms, not his.

Because the law model and war model come as conceptual packages, it is unprincipled to wrench them apart and recombine them simply because it is in America’s interest to do so. To declare that Americans can fight enemies with the latitude of warriors, but if the enemies fight back they are not warriors but criminals, amounts to a kind of heads-I-win-tails-you-lose international morality in which whatever it takes to reduce American risk, no matter what the cost to others, turns out to be justified. This, in brief, is the criticism of the hybrid war–law model.

To be sure, the law model could be made to incorporate the war model merely by rewriting a handful of statutes. Congress could enact laws permitting imprisonment or execution of persons who pose a significant threat of terrorism whether or not they have already done anything wrong. The standard of evidence could be set low and the requirement of a hearing eliminated. Finally, Congress could authorize the use of lethal force against terrorists regardless of the danger to innocent bystanders, and it could immunize officials from lawsuits or prosecution by victims of collateral damage. Such statutes would violate the Constitution, but the Constitution could be amended to incorporate anti-terrorist exceptions to the Fourth, Fifth, and Sixth Amendments. In the end, we would have a system of law that includes all the essential features of the war model.

It would, however, be a system that imprisons people for their intentions rather than their actions, and that offers the innocent few protections against mistaken detention or inadvertent death through collateral damage. Gone are the principles that people should never be punished for their thoughts, only for their deeds, and that innocent people must be protected rather than injured by their own government. In that sense, at any rate, repackaging war as law seems merely cosmetic,391because it replaces the ideal of law as a protector of rights with the more problematic goal of protecting some innocent people by sacrificing others. The hypothetical legislation incorporates war into law only by making law as partisan and ruthless as war. It no longer resembles law as Americans generally understand it.

THE THREAT TO INTERNATIONAL HUMAN RIGHTS

In the War on Terrorism, what becomes of international human rights? It seems beyond dispute that the war model poses a threat to international human rights, because honoring human rights is neither practically possible nor theoretically required during war. Combatants are legitimate targets; noncombatants maimed by accident or mistake are regarded as collateral damage rather than victims of atrocities; cases of mistaken identity get killed or confined without a hearing because combat conditions preclude due process. To be sure, the laws of war specify minimum human rights, but these are far less robust than rights in peace-time—and the hybrid war–law model reduces this schedule of rights even further by classifying the enemy as unlawful combatants.

One striking example of the erosion of human rights is tolerance of torture. It should be recalled that a 1995 al Qaeda plot to bomb eleven U.S. airliners was thwarted by information tortured out of a Pakistani suspect by the Philippine police—an eerie real-life version of the familiar philosophical thought-experiment. The Washington Post reports that since September 11 the U.S. has engaged in the summary transfer of dozens of terrorism suspects to countries where they will be interrogated under torture. But it isn’t just the United States that has proven willing to tolerate torture for security reasons. Last December, the Swedish government snatched a suspected Islamic extremist to whom it had previously granted political asylum, and the same day had him transferred to Egypt, where Amnesty International reports that he has been tortured to the point where he walks only with difficulty. Sweden is not, to say the least, a traditionally hard-line nation on human rights issues. None of this international transportation is lawful—indeed, it violates international treaty obligations under the Convention against Torture that in the U.S. have constitutional status as “supreme Law of the Land”—but that may not matter under the war model, in which even constitutional rights may be abrogated.

It is natural to suggest that this suspension of human rights is an exceptional emergency measure to deal with an unprecedented threat. This raises the question of how long human rights will remain suspended. When will the war be over?

Here, the chief problem is that the War on Terrorism is not like any other kind of war. The enemy, Terrorism, is not a territorial state or nation or government. There is no opposite number to negotiate with. There is no one on the other side to call a truce or declare a ceasefire, no one among the enemy authorized to surrender. In traditional wars among states, the war aim is, as Clausewitz argued, to impose one state’s political will on another’s. The aim of the war is not to kill the enemy—killing the enemy is the means used to achieve the real end, which is to force capitulation. In the War on Terrorism, no capitulation is possible. That means that the real aim of the war is, quite simply, to kill or capture all of the terrorists—to keep on killing and killing, capturing and capturing, until they are all gone.

Of course, no one expects that terrorism will ever disappear completely. Everyone understands that new anti-American extremists, new terrorists, will always arise and always be available for recruitment and deployment. Everyone understands that even if al Qaeda is destroyed or decapitated, other groups, with other leaders, will arise in its place. It follows, then, that the War on Terrorism will be a war that can only be abandoned, never concluded. The War has no natural resting point, no moment of victory or finality. It requires a mission of killing and capturing, in territories all over the globe, that will go on in perpetuity. It follows as well that the suspension of human rights implicit in the hybrid war–law model is not temporary but permanent.

Perhaps with this fear in mind, Congressional authorization of President Bush’s military campaign limits its scope to those responsible for September 11 and their sponsors. But the War on Terrorism has taken on a life of its own that makes the Congressional authorization little more than a technicality. Because of the threat of nuclear terror, the American leadership actively debates392a war on Iraq regardless of whether Iraq was implicated in September 11; and the President’s yoking of Iraq, Iran, and North Korea into a single axis of evil because they back terror suggests that the War on Terrorism might eventually encompass all these nations. If the U.S. ever unearths tangible evidence that any of these countries is harboring or abetting terrorists with weapons of mass destruction, there can be little doubt that Congress will support military action. So too, Russia invokes the American War on Terrorism to justify its attacks on Chechen rebels, China uses it to deflect criticisms of its campaign against Uighur separatists, and Israeli Prime Minister Sharon explicitly links military actions against Palestinian insurgents to the American War on Terrorism. No doubt there is political opportunism at work in some or all of these efforts to piggy-back onto America’s campaign, but the opportunity would not exist if “War on Terrorism” were merely the code-name of a discrete, neatly-boxed American operation. Instead, the War on Terrorism has become a model of politics, a world-view with its own distinctive premises and consequences. As I have argued, it includes a new model of state action, the hybrid war–law model, which depresses human rights from their peace-time standard to the war-time standard, and indeed even further. So long as it continues, the War on Terrorism means the end of human rights, at least for those near enough to be touched by the fire of battle.

Discussion Questions

1. Apply the just-war theory to the war on terrorism. Can the hybrid war–law model be justified under just-law theory?

2. In January 2009 President Obama issued an executive order closing Guantanamo Bay and suspending military trials of several of the inmates while the judicial process is under review. Although the order was never carried out, it is consistent with an earlier U.S. Court of Appeals ruling that overturned the Bush administration’s policy that prisoners being held at Guantanamo are “enemy combatants” being held on foreign soil and hence have no rights to a lawyer under U.S. law. Discuss whether terrorist suspects should be entitled to due process under the American legal system in light of Luban’s distinction between the war model and the law model.

3. Some of the prisoners who have since been released from Guantanamo Bay describe how they were kept in two-meter-long cages and interrogated up to sixty times a day. Should the captives who were released receive restitution from the United States government for wrongful imprisonment? Support your answer.

4. Discuss what a rights ethicist, such as John Locke, would most likely think about the morality of the hybrid war–law model.

5. Following the September 11 attacks, the United States adopted a policy that permits preemptive war as self-defense. “It’s a different world,” argued Colin Powell in favor of the policy. “It’s a new kind of threat.” Weapons of mass destruction, new technology, and the ease with which global terrorist groups can network have increased the likelihood of surprise attacks. Discuss whether these developments justify preemptive strikes as self-defense under the just-war tradition. If so, discuss under what conditions would a preemptive strike be morally justified.

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BRIAN MICHAEL JENKINS

Should Our Arsenal against Terrorism Include Assassination?

Brian Michael Jenkins is one of the world’s leading authorities on terrorism and transportation security. He has served as an advisor to the U.S. Department of State and the U.S. Department of Defense. He is currently senior advisor to the president of the Rand Corporation. In the following article, Jenkins examines the arguments both for and against political assassinations and concludes that assassination should not be part of America’s arsenal.

Critical Reading Questions

1. What are the five arguments in favor of assassination?

2. What are the ten arguments Jenkins presents against assassination?

3. What are some of the examples Jenkins uses to support the position that assassination is morally wrong?

4. Under what conditions do some people think assassination might be morally justified and how does Jenkins respond to their arguments?

5. On what grounds does Jenkins conclude that assassination cannot be morally justified?

PREFACE

Among the countermeasures that the United States might employ against terrorists, why not assassination? Do we deny ourselves an effective instrument simply because terrorists do not fit neatly into our traditional methods of law enforcement or waging war? The following essay examines the arguments for and against assassination as a means of combatting terrorism….

The word slithered out on the mahogany table like a poisonous snake: Assassination! A word hissed rather than spoken. I was irritated at the person who brought it up, fortunately not one of the high-ranking government officials was present at the meeting. True, we were meeting in the wake of yet another terrorist outrage in which Americans had been killed. We were supposed to be having a cool discussion of policy, but still there was anger in the room when we spoke about the terrorists….

From Brian Michael Jenkins, “Should Our Arsenal against Terrorism Include Assassination? “ The RAND Corporation, 1987. Used with permission. Available at https://www.rand.org/pubs/papers/P7303.html

There is right and wrong, and there is good and evil. This man reminded us that we were supposed to be the good guys. In the darkest moment of despair, I never feared that terrorists would triumph. In the long run, they fail. We will survive. But would we always manage to remain the good guys? Should we?

In the years that have passed since that meeting, terrorists have inflicted more outrages. Indiscriminate attacks have grown more common. As terrorism has become bloodier, the “gun ’em down, string ’em up” school of counterterrorism has understandably gained strength. Assassination is back on the table. The United States must reconsider its prohibition against assassination, advises one terrorist expert speaking on television. “We should have killed the Ayatollah,” says another. Muamar Qadaffi should have been killed long ago, he adds.

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These exhortations are not without a certain resonance on the part of the American public. In a public opinion poll conducted just before the U.S. raid on Libya, 61 percent of the respondents agreed that the United States should “covertly assassinate known terrorist leaders.”

Assassination has a certain emotional appeal for people who are frightened, frustrated, angry….

Behind the rhetoric, there is a legitimate analytical question: In responding to terrorism, can we minimize the loss of life–the lives of future victims of terrorism as well as the lives of innocent bystanders who might be killed in a conventional military response–by killing those who most directly influence their behavior? Why not assassination? Is it right? And would it work? …

Here are five arguments in favor of assassination and ten arguments against assassination as a means of combatting terrorism.

IN FAVOR OF ASSASSINATION

1. Assassination may preclude greater evil. “Wouldn’t you have assassinated Adolf Hitler?” proponents often ask. With hindsight, that’s easy. The answer is, “Yes, of course.” The more difficult question is, When? After 1941, when Germany declared war on the United States? After 1939, when World War II began? If before then, on the basis of what criteria? Because he was a fascist, a ruthless megalomaniac, a rabid racist who persecuted Jews, annexed Austria, invaded Czechoslovakia? He was and he did all of these things. But how do we identify future Hitlers? Megalomania, racism, and a proclivity to invade one’s neighbor, regrettably, are not rare attributes among world leaders.

2. Assassination produces fewer casualties than retaliation with conventional weapons. No doubt about it. Thousands have died as a result of conventional military operations ranging from aerial bombings to full-scale invasions in response to terrorist attacks. Putting aside the question of whether a campaign of assassination would preclude the necessity of all conventional military operations, if blood is the measure, assassination is surely the cleanest form of warfare. (One has to be careful here. An assassination can also lead to wider conflict as it did in 1914.)

3. Assassination would be aimed at the persons directly responsible for terrorist attacks, not innocent bystanders. In the U.S. attack on Libya, 37 people died. Were all 37 responsible for the Libyan terrorist campaign that provoked the attack? Were any? Clearly, some casualties were inflicted upon innocent civilian bystanders. Military force, even with “precision weapons,” is a blunt instrument. Assassination can be much more precise.

4. Assassination of terrorist leaders would disrupt terrorist groups more than any other form of attack. This is probably the best argument for assassination….

The elimination of a terrorist group’s leader or leaders causes confusion and disarray. Often terrorist groups are led by a single charismatic and organizationally effective individual who cannot easily be replaced. If he has left no clear successor, his heirs may fight for the number one position. They may anyway, and in a group of violence-prone men and women, it is likely to be a violent struggle. If those responsible for his killing have not been identified, some in the group may suspect a rival faction or a traitor inside. Mutual suspicion will increase. Security precautions will be tightened; communications will become more difficult. “Foreign relations”—the contacts and deals with governments and other groups, which are often the personal domain of the leader himself—will be interrupted. All this will lower the group’s operational efficiency, at least temporarily.

It is a different story if the target of assassination is the head of a state sponsoring terrorism. National governments can more easily repair the damages of lost leadership than terrorist groups, but in the Middle East, where authoritarian rule prevails, the elimination of one leader might have considerable effect….

5. Assassination leaves no prisoners to become causes for further terrorist attacks. … The release of395imprisoned terrorists is the most frequent goal in hostage situations and the terrorists’ second most important objective after publicity. The apprehension and imprisonment of terrorist leaders make virtually certain that further acts of violence will occur.

AGAINST ASSASSINATION

Lining up against these arguments in favor of assassination are moral and legal constraints, operational difficulties, and practical considerations.

1. Assassination is morally wrong. Admittedly, an arguable point. The actions of terrorists also are morally wrong—not that this makes assassination right. But at the very least, many people would view assassination as immoral. Take the following example.

Judging by the bumper stickers and T-shirts one sees, more than a few Americans would be happy to see Qadaffi eliminated. Not since the Ayatollah during the hostage crisis in Iran, perhaps not since Adolf Hitler, has any single leader aroused more personal animosity. But just imagine the President appearing on television one evening to announce, “Some time ago I authorized the assassination of Muamar Qadaffi. I am pleased to report to you tonight that American agents have successfully carried out this mission.” Without entering into a philosophical debate, let me assert that a large number of Americans would find such a spectacle morally repugnant….

2. Assassination is illegal. Assassination, synonymous with murder, is by definition an illegal act. But advocates of assassination do not view such killings as murder; they may argue that assassinations fall into the same category as executions—the legal taking of human life. “Execution,” however, is not an appropriate parallel, since under the circumstances likely to prevail, assassinations would certainly violate American standards of due process.

Other proponents may argue that eliminating terrorist leaders is an act of war. Most terrorists regard themselves as being at war with their enemies, and haven’t we “declared war” on terrorism? Does that not put terrorists in the same category as soldiers in an army at war and therefore legitimate targets? The answer is no. We do not accept the terrorists’ pretension. We do not consider terrorist attacks as acts of war; and we do not treat captured terrorists as prisoners of war; we try them as criminals…. Even a formal declaration of war would not automatically legalize assassination….

Following revelations in the mid-1970s that the U.S. government had been involved in various plots to assassinate foreign leaders, the President issued an Executive Order: “No person employed or acting on behalf of the United States Government shall engage in, or conspire to engage in assassination.” Reasons of State will be no defense against a murder charge. Proponents of assassination argue that this is a self-imposed constraint. The President could lift his ban. That might provide legal protection for our hired assassin here in the United States, but it would not protect him against murder charges in other countries, nor would it protect the United States against the wrath of other governments.

Assassinating the terrorist leaders of most concern to us means going into another sovereign country and killing someone. Americans would react angrily if British agents began gunning down IRA fundraisers on the streets of New York and Boston. And suppose Nicaraguan agents were sent to assassinate the leader of the Contras in Washington? The merit of their case makes little difference. We’d charge them with murder….

3. In combatting terrorism, we ought not to employ actions indistinguishable from those of the terrorists themselves. We oppose terrorism not because we always oppose the causes espoused by the terrorists or reject the grievances they claim as their motive, and not because we in all cases consider armed force unjustified. We are, after all, a nation founded upon armed rebellion. We oppose terrorism because we believe that bombs in airports and restaurants, the taking of hostages, assassinations on city streets are illegitimate means of fighting in any circumstances. State sponsored terrorism—governments conspiring in such activities—causes and deserves outrage.

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Our goal is not just to outgun the terrorists but to defeat, or at least limit, terrorism. We do not further that goal by resorting to terrorist tactics ourselves….

4. Assassination of terrorists could justify further terrorist actions against us. Suppose we did adopt assassination as a countermeasure, killing off terrorist leaders and their sponsors one by one. And suppose that in response to this campaign, terrorists launched a campaign to assassinate American diplomats, perhaps our political leaders at home. Could we cry foul? Or would the world simply see it as another phase of a dirty war, fought with tactics we have agreed to.

5. Our opponents would have the advantage. Terrorist leaders worry about their security all the time. They are elusive, hard to find, hard to get at. Our intelligence about terrorist groups is admittedly inadequate. If we can’t plant an informant inside a group, how are we going to get someone into the right place at the right time to kill its leader?

In contrast, we are particularly vulnerable to the risk that our own leaders may be assassinated. We would agonize over each operation. Our opponents would not hesitate. We would worry about the possible danger to bystanders. Opponents who set off bombs in airports and department stores have no such concerns. In a war of assassination, clearly we would be at a disadvantage.

6. The replacement for the person we kill may be even worse. This is the direct counter to the principal argument in favor of assassination. One reason assassination of terrorists has not worked over the long run is that the elimination of one man simply leads to his replacement by another in the chain of command. We cannot assume that new leaders will act differently from their predecessors….

7. Whom do we kill? Colonel Qadaffi and the Ayatollah Khomeini have already been mentioned. Many suspect that Syrian President Hafez Assad plays an even greater role behind the scenes. And U.S. government officials have on occasion accused Cuba and Nicaragua of sponsoring terrorism. That adds Fidel Castro, whom we tried to assassinate 25 years ago, and Daniel Ortega. Ten years ago, Cuban terrorists, reportedly in the employ of the Chilean secret services, assassinated a former Chilean cabinet minister in Washington. Do we then add to our list Chilean President Pinochet, who a short while ago narrowly escaped a local assassination attempt? These people might make up our list. Other nations would have their own priorities.

When it comes to the assassination of heads of state, one might argue that the elimination of a dozen or so of the more reprehensible potentates each generation might on the average raise standards of international behavior. It would, however, also establish a precedent. We live in a world in which Aldo Moro, Anwar Sadat, and Indira Gandhi fell to the bullets of assassins. Pope John Paul II and Ronald Reagan survived assassination attempts, although in Reagan’s case, not by a terrorist. Margaret Thatcher narrowly missed being killed by an IRA bomb. Expanding the practice would hardly contribute to world stability.

8. Who gives the order? Not an easy question to answer. During World War II, the United States cracked the code used by the Japanese. In 1943, an intercepted message informed us that Admiral Yamamoto, the commander of the Japanese fleet, was going on a personal inspection tour that would put him within range of American fighters. Should we shoot him down? Why not? We were at war. Yamamoto was a soldier, not a head of state. We shot down Japanese aircraft whenever we could; but knowing who was on the plane somehow made it different. If you can put a name on the bullet, you are in a different business….

Whether seen in the context of peace or war, there is an understandable reluctance to assume responsibility for the cold-blooded killing of a specific person, as opposed to shooting at an anonymous enemy. That pushes the decision up. The higher the rank of the target, the higher the decision must go. It took Golda Meir, the Prime Minister of Israel, to authorize the killing of the Palestinian terrorist leaders. This also was seen as war….

9. Assassins may have their own agendas. Assassination is a nasty business, and it often397requires employing nasty people, not the suave, urbane, romantic agents of the movies. Any assassinations we might realistically contemplate would most likely take place in North Africa or the Middle East, where the United States has limited operational capabilities. We would have to rely on third parties whose political agendas and attitudes about violence might differ from our own.

In Vietnam, “special targeting”—another of those euphemisms—was carried out by Provincial Reconnaissance Units who had a reputation for “fierce aggressiveness.” …

The Mafia helped us immensely during World War II, one former CIA agent told me years later, but by the 1960s, they weren’t what they used to be. Another former intelligence man offered a more intriguing explanation that had nothing to do with the Mafia’s expertise but rather concerned us. We failed because there were too many doubts on our part, he explained….

10.In the long run, it doesn’t work. Following the bloody attack on Israeli athletes at the Munich Olympics in 1972, Israel embarked upon a campaign of assassination. Between October 1972 and 1974, 11 known or suspected leaders of Palestinian terrorist organizations were shot down or blown up by Israeli agents. The campaign ended after the killing of an innocent waiter in Norway who was mistakenly identified as a terrorist on the list. The assassinations may have disrupted terrorist operations, but the effects were temporary. It was difficult to discern any decline in Palestinian terrorist attacks at the time, and Israelis and Jews worldwide are still frequent targets of terrorist violence. But, since we cannot count things that don’t occur, we have no way of knowing how many more attacks would have taken place had Israel not engaged in assassination.

Suppose we could know. Suppose, through the testimony of some terrorist leader, we learned that the assassinations had disrupted or deterred a campaign of terrorist attacks that would have resulted in scores of casualties. Would that make it right? Does a favorable kill ratio change the moral equation? Under such circumstances, do we better serve humanity by not killing the terrorists? A disturbing question. Uncertainty gives us a way out of the dilemma. In real life, we can seldom predict the effects that an assassination might have.

As a former soldier, I accept the fact that sometimes blood may be spilt in the name of one’s country. Military force cannot be ruled out as a possible response to terrorism. Combatting terrorism will at times require aggressive covert operations in which there are going to be casualties—commando assaults on terrorist training camps, for example. The death of a terrorist leader as a consequence of an attack causes fewer qualms. There is still a crucial difference between a covert military operation within a framework of war and assassination—the coldblooded selection and the killing of a specific individual.

Assassination is a slogan, not a solution. Easy to say, tough sounding. A macho posture meant for the media: simple, seductive, full of promise, like any good TV commercial. Endless efforts to gather intelligence, tireless police work, countermeasures that are necessary but often pedestrian, difficult diplomacy, hard policy choices, rewarded with occasional unheralded victories, these—not paper pistols—make up the enterprise of counterterrorism.

One learns never to say “never.” Being at war, openly engaged in military hostilities, perhaps would make a difference, although this country historically has taken the position that all is not fair even in war. Short of war, however, “assassination has no place in America’s arsenal.” The quote comes from a report written more than ten years ago by a Senate Committee investigating U.S. involvement in assassination plots. It was a conclusion supported by the CIA’ directors who testified before the committee. It has been reiterated by every President since. And for good reason.

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Discussion Questions

1. Working in small groups, evaluate Jenkins’s arguments both for and against assassination in light of the current “war on terrorism.” Based on your conclusion, develop a policy regarding the use of assassination as a political tool. Discuss your policy with the class and modify it, if appropriate, based on feedback from the class.

2. One of the arguments Jenkins uses against assassination is that the great majority of Americans would find it morally repugnant. However, according to a Gallup Poll taken the day after the assassination of Osama bin Laden, 93 percent of Americans approved of the military action that killed him. Discuss whether this weakens Jenkins’s argument against assassination.

3. Would the world be better off if Hitler had been assassinated? Critically analyze Jenkins’s argument against the assassination of tyrants such as Hitler.

4. Senator Ron Paul called for the impeachment of President Obama following the assassination of American-born al Qaeda leader Anwar al-Awlaki. Paul argues that the assassination of an American citizen without charge or trial is a move down the slippery slope toward tyranny and a violation of the U.S. Constitution. (See Case Study 5: Prisoners of War: Trials and Torture.) Critically analyze Paul’s argument in light of Jenkins’s arguments for and against assassination.

BARACK OBAMA

Remarks President Obama on Common-Sense Gun Safety Reform

Barack Obama (b. 1961) attended Harvard Law School. He was a senator for the state of Illinois from 1997 to 2002. In 2008 he was elected 44th president of the United States and served until 2016. In the following 2016 White House press briefing, Obama presents reasons why we need better background checks and restrictions on gun ownership in order to cut down on gun violence in United States.

Critical Reading Questions

1. How many Americans lose their lives each year because of gun violence?

2. How does the United States compare to other countries when it comes to gun violence?399

3. What comparison does Obama draw between the Second Amendment and the First Amendment?

4. What does Obama mean when he says “we’ve created a system in which dangerous people are allowed to play by a different set of rules than a responsible gun owner”?

5. Why hasn’t Congress passed a law requiring background checks?

6. What evidence does Obama cite to support his argument that background checks work in cutting down on gun violence?

7. What are the four steps Obama and Biden said they would take to help reduce gun violence?

8. What does Obama ask each of us to do as citizens?

Press Briefing, Office of the White House Secretary, January 5, 2016.

… Five years ago this week, a sitting member of Congress and 18 others were shot at, at a supermarket in Tucson, Arizona. It wasn’t the first time I had to talk to the nation in response to a mass shooting, nor would it be the last. Fort Hood. Binghamton. Aurora. Oak Creek. Newtown. The Navy Yard. Santa Barbara. Charleston. San Bernardino. Too many.

Thanks to a great medical team and the love of her husband, Mark, my dear friend and colleague, Gabby Giffords, survived. She’s here with us today, with her wonderful mom….

I was there with Gabby when she was still in the hospital, and we didn’t think necessarily at that point that she was going to survive. And that visit right before a memorial—about an hour later Gabby first opened her eyes…. I know the pain that she and her family have endured these past five years, and the rehabilitation and the work and the effort to recover from shattering injuries.

And then I think of all the Americans who aren’t as fortunate. Every single year, more than 30,000 Americans have their lives cut short by guns—30,000. Suicides. Domestic violence. Gang shootouts. Accidents. Hundreds of thousands of Americans have lost brothers and sisters, or buried their own children. Many have had to learn to live with a disability, or learned to live without the love of their life.

A number of those people are here today. They can tell you some stories….

The United States of America is not the only country on Earth with violent or dangerous people. We are not inherently more prone to violence. But we are the only advanced country on Earth that sees this kind of mass violence erupt with this kind of frequency. It doesn’t happen in other advanced countries. It’s not even close. And as I’ve said before, somehow we’ve become numb to it and we start thinking that this is normal.

And instead of thinking about how to solve the problem, this has become one of our most polarized, partisan debates—despite the fact that there’s a general consensus in America about what needs to be done. That’s part of the reason why, on Thursday, I’m going to hold a town hall meeting in Virginia on gun violence. Because my goal here is to bring good people on both sides of this issue together for an open discussion.

I’m not on the ballot again. I’m not looking to score some points. I think we can disagree without impugning other people’s motives or without being disagreeable…. In Dr. King’s words, we need to feel the “fierce urgency of now.” Because people are dying. And the constant excuses for inaction no longer do, no longer suffice.

That’s why we’re here today. Not to debate the last mass shooting, but to do something to try to prevent the next one. To prove that the vast majority of Americans, even if our voices aren’t always the loudest or most extreme, care enough about a little boy like Daniel to come together and take common-sense steps to save lives and protect more of our children.

Now, I want to be absolutely clear at the start … I believe in the Second Amendment. It’s there written on the paper. It guarantees a right to bear arms. No matter how many times people try to twist my words around—I taught constitutional law, I know a little about this—I get it. But I also believe that we can find ways to reduce gun violence consistent with the Second Amendment.

I mean, think about it. We all believe in the First Amendment, the guarantee of free speech, but we accept that you can’t yell “fire” in a theater. We understand400there are some constraints on our freedom in order to protect innocent people. We cherish our right to privacy, but we accept that you have to go through metal detectors before being allowed to board a plane. It’s not because people like doing that, but we understand that that’s part of the price of living in a civilized society.

And what’s often ignored in this debate is that a majority of gun owners actually agree. A majority of gun owners agree that we can respect the Second Amendment while keeping an irresponsible, law-breaking feud from inflicting harm on a massive scale.

Today, background checks are required at gun stores. If a father wants to teach his daughter how to hunt, he can walk into a gun store, get a background check, purchase his weapon safely and responsibly. This is not seen as an infringement on the Second Amendment. Contrary to the claims of what some gun rights proponents have suggested, this hasn’t been the first step in some slippery slope to mass confiscation. Contrary to claims of some presidential candidates, apparently, before this meeting, this is not a plot to take away everybody’s guns. You pass a background check; you purchase a firearm.

The problem is some gun sellers have been operating under a different set of rules. A violent felon can buy the exact same weapon over the Internet with no background check, no questions asked. A recent study found that about one in 30 people looking to buy guns on one website had criminal records—one out of 30 had a criminal record. We’re talking about individuals convicted of serious crimes—aggravated assault, domestic violence, robbery, illegal gun possession. People with lengthy criminal histories buying deadly weapons all too easily. And this was just one website within the span of a few months.

So we’ve created a system in which dangerous people are allowed to play by a different set of rules than a responsible gun owner who buys his or her gun the right way and subjects themselves to a background check. That doesn’t make sense. Everybody should have to abide by the same rules. Most Americans and gun owners agree. And that’s what we tried to change three years ago, after 26 Americans—including 20 children—were murdered at Sandy Hook Elementary.

Two United States Senators—Joe Manchin, a Democrat from West Virginia, and Pat Toomey, a Republican from Pennsylvania, [worked together] … to write a common-sense compromise bill that would have required virtually everyone who buys a gun to get a background check…. Ninety percent of Americans supported that idea. Ninety percent of Democrats in the Senate voted for that idea. But it failed because 90 percent of Republicans in the Senate voted against that idea.

How did this become such a partisan issue? Republican President George W. Bush once said, “I believe in background checks at gun shows or anywhere to make sure that guns don’t get into the hands of people that shouldn’t have them.” Senator John McCain introduced a bipartisan measure to address the gun show loophole, saying, “We need this amendment because criminals and terrorists have exploited and are exploiting this very obvious loophole in our gun safety laws.” Even the NRA used to support expanded background checks. And by the way, most of its members still do. Most Republican voters still do.

How did we get here? How did we get to the place where people think requiring a comprehensive background check means taking away people’s guns?

Each time this comes up, we are fed the excuse that common-sense reforms like background checks might not have stopped the last massacre, or the one before that, or the one before that, so why bother trying. I reject that thinking. We know we can’t stop every act of violence, every act of evil in the world. But maybe we could try to stop one act of evil, one act of violence.

Some of you may recall, at the same time that Sandy Hook happened, a disturbed person in China took a knife and tried to kill—with a knife—a bunch of children in China. But most of them survived because he didn’t have access to a powerful weapon. We maybe can’t save everybody, but we could save some. Just as we don’t prevent all traffic accidents but we take steps to try to reduce traffic accidents.

As Ronald Reagan once said, if mandatory background checks could save more lives, “it would be well worth making it the law of the land.” The bill before Congress three years ago met that test. Unfortunately, too many senators failed theirs.

In fact, we know that background checks make a difference. After Connecticut passed a law requiring background checks and gun safety courses, gun deaths decreased by 40 percent—40 percent. Meanwhile, since Missouri repealed a law requiring comprehensive background checks and purchase permits, gun deaths have increased to almost 50 percent higher than the401national average. One study found, unsurprisingly, that criminals in Missouri now have easier access to guns.

And the evidence tells us that in states that require background checks, law-abiding Americans don’t find it any harder to purchase guns whatsoever. Their guns have not been confiscated. Their rights have not been infringed.

And that’s just the information we have access to. With more research, we could further improve gun safety. Just as with more research, we’ve reduced traffic fatalities enormously over the last 30 years. We do research when cars, food, medicine, even toys harm people so that we make them safer. And you know what—research, science—those are good things. They work. They do.

But think about this. When it comes to an inherently deadly weapon—nobody argues that guns are potentially deadly—weapons that kill tens of thousands of Americans every year, Congress actually voted to make it harder for public health experts to conduct research into gun violence; made it harder to collect data and facts and develop strategies to reduce gun violence. Even after San Bernardino, they’ve refused to make it harder for terror suspects who can’t get on a plane to buy semi-automatic weapons. That’s not right. That can’t be right.

So the gun lobby may be holding Congress hostage right now, but they cannot hold America hostage. We do not have to accept this carnage as the price of freedom.

Now, I want to be clear. Congress still needs to act. The folks in this room will not rest until Congress does. Because once Congress gets on board with common-sense gun safety measures we can reduce gun violence a whole lot more. But we also can’t wait. Until we have a Congress that’s in line with the majority of Americans, there are actions within my legal authority that we can take to help reduce gun violence and save more lives—actions that protect our rights and our kids….

So let me outline what we’re going to be doing.

Number one, anybody in the business of selling firearms must get a license and conduct background checks, or be subject to criminal prosecutions….

We’re also expanding background checks to cover violent criminals who try to buy some of the most dangerous firearms by hiding behind trusts and corporations and various cutouts….

Number two, we’re going to do everything we can to ensure the smart and effective enforcement of gun safety laws that are already on the books, which means we’re going to add 200 more ATF agents and investigators. We’re going to require firearms dealers to report more lost or stolen guns on a timely basis. We’re working with advocates to protect victims of domestic abuse from gun violence, where too often—where too often, people are not getting the protection that they need.

Number three, we’re going to do more to help those suffering from mental illness get the help that they need. High-profile mass shootings tend to shine a light on those few mentally unstable people who inflict harm on others. But the truth is, is that nearly two in three gun deaths are from suicides. So a lot of our work is to prevent people from hurting themselves….

Number four, we’re going to boost gun safety technology. Today, many gun injuries and deaths are the result of legal guns that were stolen or misused or discharged accidentally. In 2013 alone, more than 500 people lost their lives to gun accidents—and that includes 30 children younger than five years old…. So we’re going to advance research. We’re going to work with the private sector to update firearms technology.

And some gun retailers are already stepping up by refusing to finalize a purchase without a complete background check, or by refraining from selling semi-automatic weapons or high-capacity magazines. And I hope that more retailers and more manufacturers join them—because they should care as much as anybody about a product that now kills almost as many Americans as car accidents.

I make this point because none of us can do this alone. I think Mark made that point earlier. All of us should be able to work together to find a balance that declares the rest of our rights are also important—Second Amendment rights are important, but there are other rights that we care about as well. And we have to be able to balance them….

Our right to peaceful assembly—that right was robbed from moviegoers in Aurora and Lafayette. Our unalienable right to life, and liberty, and the pursuit of happiness—those rights were stripped from college students in Blacksburg and Santa Barbara, and from high schoolers at Columbine, and from first-graders in Newtown …

So all of us need to demand a Congress brave enough to stand up to the gun lobby’s lies. All of us need to stand up and protect its citizens. All of us need to402demand governors and legislatures and businesses do their part to make our communities safer. We need the wide majority of responsible gun owners who grieve with us every time this happens and feel like your views are not being properly represented to join with us to demand something better.

And we need voters who want safer gun laws, and who are disappointed in leaders who stand in their way, to remember come election time.

… Yes, the gun lobby is loud and it is organized in defense of making it effortless for guns to be available for anybody, any time. Well, you know what, the rest of us, we all have to be just as passionate. We have to be just as organized in defense of our kids. This is not that complicated. The reason Congress blocks laws is because they want to win elections. And if you make it hard for them to win an election if they block those laws, they’ll change course, I promise you.

And, yes, it will be hard, and it won’t happen overnight. It won’t happen during this Congress. It won’t happen during my presidency. But a lot of things don’t happen overnight. A woman’s right to vote didn’t happen overnight. The liberation of African Americans didn’t happen overnight. LGBT rights—that was decades’ worth of work. So just because it’s hard, that’s no excuse not to try….

But if we love our kids and care about their prospects, and if we love this country and care about its future, then we can find the courage to vote. We can find the courage to get mobilized and organized. We can find the courage to cut through all the noise and do what a sensible country would do.

That’s what we’re doing today. And tomorrow, we should do more. And we should do more the day after that. And if we do, we’ll leave behind a nation that’s stronger than the one we inherited….

Discussion Questions

1. The Second Amendment to the Constitution states, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Obama argues that the Second Amendment guarantees the right for people to own guns, within certain constraints in order to protect innocent people. Others argue that the Constitutional right to bear arms pertains only to members of a militia. Are the restrictions Obama places on civilians owning guns sufficient to protect innocent people? Or should gun ownership be restricted to the military and police force? Support your answer.

2. Some believe the right to bear arms, though it may be a legal right, is not a moral right just as the Constitution at one time protected the right to own slaves and also prohibited women from voting, “rights” we now consider to be immoral. Discuss whether Obama adequately addresses the moral issues raised by the Second Amendment.

3. President Obama was initially skeptical about placing armed guards in schools. In 2013, shortly after the mass shooting at Sandy Hook Elementary School, the National Rifle Association (NRA) issued a video criticizing Obama’s stance as elitist and unrealistic. Shortly after, Obama changed his position and authorized $45 million to place armed guards in schools. Critically analyze Obama’s decision in light of the argument put forth by the NRA in their video. The NRA’s video can be found at https://www.youtube.com/watch?v=qgr2lj7jwr4.

4. Marko Kloss, an ex-Marine, argues in his essay “Why the Gun Is Civilization” that “human beings only have two ways to deal with one another: reason and force.” He proposes that in a society where not everyone is reasonable, guns may be necessary to protect ourselves. Do you agree? Support your answer. Discuss also how Obama might answer this question.

403

RON PAUL

Conscription—The Terrible Price of War

Ron Paul (b. 1935) is an American politician, physician, and author who served as a Republican Congressman for Texas from 1976 to 1977, 1979 to 1985, and 1997 to 2013. Paul sought the presidential nomination for the Libertarian party in 2008 and 2013. In the following speech, which he gave before the U.S. House of Representatives in 2003, Paul argues against reinstating the draft.

Critical Reading Questions

1. What, according to Paul, is almost always “the ultimate cost of war”?

2. When is war justified?

3. What does Paul mean when he says “when it comes to most wars, the principle of deception lives on”?

4. What are some of the “after-the-fact” rationales for continuing a war, especially an unpopular or seemingly ill-conceived war?

5. Why, according to Paul, are all drafts unfair?

6. What does Paul mean when he says “liberty cannot be preserved by tyranny”?

The ultimate cost of war is almost always the loss of liberty. True defensive wars and revolutionary wars against tyrants may preserve or establish a free society, as did our war against the British. But these wars are rare. Most wars are unnecessary, dangerous, and cause senseless suffering with little being gained. The result of most conflicts throughout the ages has been loss of liberty and life on both sides…. To get the people to support ill-conceived wars, the nation’s leaders employ grand schemes of deception.

Woodrow Wilson orchestrated our entry into World War I by first promising during the election of 1916 to keep us out of the European conflict, then a few months later pressuring and maneuvering Congress into declaring war against Germany. Whether it was the Spanish American War before that or all the wars since, U.S. presidents have deceived the people to gain popular support for ill-conceived military ventures. Wilson wanted the war and immediately demanded conscription to fight it. He didn’t have the guts even to name the program a military draft; instead in a speech before Congress calling for war he advised the army should be “chosen upon the principle of universal liability to service.” Most Americans at the time of the declaration didn’t believe actual combat troops would be sent. What a dramatic change from this early perception, when the people endorsed the war, to the carnage that followed—and the later disillusionment with Wilson and his grand scheme for world government under the League of Nations. The American people rejected this gross new entanglement, a reflection of a somewhat healthier age than the one we find ourselves in today.

Speech before the U.S. House of Representatives, November 26, 2003.

But when it comes to war, the principle of deception lives on. The plan for “universal liability to serve” once again is raising its ugly head. The dollar cost of the current war is already staggering, yet plans are being made to drastically expand the human cost by forcing conscription on the young men (and maybe women) who404have no ax to grind with the Iraqi people and want no part of this fight.

Hundreds of Americans have already been killed, and thousands more wounded and crippled, while thousands of others will experience new and deadly war related illnesses not yet identified.

We were told we had to support this pre-emptive war against Iraq because Saddam Hussein had weapons of mass destruction (and to confront al Qaeda). It was said our national security depended on it. But all these dangers were found not to exist in Iraq. It was implied that lack of support for this Iraqi invasion was un-American and unpatriotic.

Since the original reasons for the war never existed, it is now claimed that we’re there to make Iraq a western-style democracy and to spread western values. And besides, it’s argued, it’s nice that Saddam Hussein has been removed from power. But does the mere existence of evil somewhere in the world justify preemptive war at the expense of the American people? Utopian dreams, fulfilled by autocratic means, hardly qualify as being morally justifiable.

These after-the-fact excuses for invasion and occupation of a sovereign nation direct attention away from the charge that the military industrial complex encouraged this war. It was encouraged by war profiteering, a desire to control natural resources (oil), and a Neo-con agenda of American hegemony with the goal of redrawing the borders of the countries of the Middle East.

The inevitable failure of such a seriously flawed foreign policy cannot be contemplated by those who have put so much energy into this occupation. The current quagmire prompts calls from many for escalation, with more troops being sent to Iraq. Many of our reservists and National Guardsmen cannot wait to get out and have no plans to re-enlist. The odds are that our policy of foreign intervention, which has been with us for many decades, is not likely to soon change. The dilemma of how to win an un-winnable war is the issue begging for an answer.

To get more troops, the draft will likely be reinstated. The implicit prohibition of “involuntary servitude” under the 13th Amendment to the Constitution has already been ignored many times so few will challenge the constitutionality of the coming draft.

Unpopular wars invite conscription. Volunteers disappear, as well they should. A truly defensive just war prompts popular support. A conscripted, unhappy soldier is better off on the long run than the slaves of old since the “enslavement” is only temporary. But in the short run the draft may well turn out to be more deadly and degrading, as one is forced to commit life and limb to a less than worthy cause—like teaching democracy to unwilling and angry Arabs. Slaves were safer in that their owners had an economic interest in protecting their lives. Endangering the lives of our soldiers is acceptable policy, and that’s why they are needed. Too often, though, our men and women who are exposed to the hostilities of war and welcomed initially are easily forgotten after the fighting ends. Soon afterward, the injured and the sick are ignored and forgotten.

It is said we go about the world waging war to promote peace, and yet the price paid is rarely weighed against the failed efforts to make the world a better place. Justifying conscription to promote the cause of liberty is one of the most bizarre notions ever conceived by man! Forced servitude, with the risk of death and serious injury as a price to live free, makes no sense. What right does anyone have to sacrifice the lives of others for some cause of questionable value? Even if well motivated it can’t justify using force on uninterested persons.

It’s said that the 18 year old owes it to his country. Hogwash! It just as easily could be argued that a 50 year-old chicken-hawk, who promotes war and places the danger on innocent young people, owes a heck of a lot more to the country than the 18 year-old being denied his liberty for a cause that has no justification.

All drafts are unfair. All 18 and 19 year olds are never drafted. By its very nature a draft must be discriminatory. All drafts hit the most vulnerable young people, as the elites learn quickly how to avoid the risks of combat.

The dollar cost of war and the economic hardship is great in all wars and cannot be minimized. War is never economically beneficial except for those in position to profit from war expenditures. The great tragedy of war is the careless disregard for civil liberties of our own people. Abuses of German and Japanese Americans in World War I and World War II are well known.

But the real sacrifice comes with conscription—forcing a small number of young vulnerable citizens to fight the wars that older men and women, who seek glory in military victory without themselves being405exposed to danger, promote. These are wars with neither purpose nor moral justification, and too often not even declared by the Congress.

Without conscription, unpopular wars are much more difficult to fight. Once the draft was undermined in the 1960s and early 1970s, the Vietnam War came to an end. But most importantly, liberty cannot be preserved by tyranny. A free society must always resort to volunteers. Tyrants thinks nothing of forcing men to fight and serve in wrongheaded wars; a true fight for survival and defense of America would elicit, I’m sure, the assistance of every able-bodied man and woman. This is not the case for wars of mischief far away from home in which we so often have found ourselves in the past century.

One of the worst votes that an elected official could ever cast would be to institute a military draft to fight an illegal war, if that individual himself maneuvered to avoid military service. But avoiding the draft on principle qualifies oneself to work hard to avoid all unnecessary war and oppose the draft for all others.

A government that is willing to enslave a portion of its people to fight an unjust war can never be trusted to protect the liberties of its own citizens. The ends can never justify the means, no matter what the Neo-cons say.

Discussion Questions

1. Paul’s opposition to conscription is limited to unjust or illegal wars, which includes most wars. Discuss whether Paul would support conscription if another nation attacked the United States and what form this attack would have to take. What if the attack took the form of a cyberattack? What if the attack was on a U.S. ally, such as Canada or Britain? Support your answers.

2. Discuss how Paul would most likely respond to Todd South’s proposal that all young people should be required to serve the country in some capacity, military, or otherwise. Which person makes the better argument? Support your answer.

3. U.S. Congressman and Secretary of State Daniel Webster (1782–1852) in his 1814 speech “On Conscription” before the U.S. House of Representatives opposed conscription, arguing that it was a form of slavery and, therefore, a violation of the Constitution. With conscription, he wrote, “the most essential rights of personal liberty shall be surrendered, and despotism embraced in its worst form.” Do you agree with Webster? Support you answer. Discuss how Paul might respond to Webster.

4. In the September 11 attacks on the Twin Towers, the terrorists chose targets that symbolized what they regarded as the heresy of globalization, destruction of traditional ways of living, and exploitation of the poor of the world by the rich. Discuss whether targeting symbols of “evil” by groups that lack the power to directly attack the military of a superior force is ever legitimate. Discuss also whether Ron Paul would support an attack on the countries that supported the terrorist attacks on the United States.

5. In response to those who justify the military draft as “payback” for the freedom the government provides them as citizens, Paul writes, “Those who make this argument are embracing the collectivist premise that since our rights come from government, the government can take away those rights whether it suits their purposes. Thus supporters of the draft are turning their backs on the Declaration of Independence turning them into supporters of mandatory Selective Service registration. Yet many of these same conservatives strongly and correctly oppose mandatory gun registration. In a free society you should never have to register your child or your gun.”¹⁵ Critically analyze Paul’s argument.

406

CASE STUDIES

1. ALLIED FIREBOMBING DURING WORLD WAR II

In 1942 Winston Churchill responded to the question “How are you going to win the war?” by saying, “We will shatter Germany by bombing … the severe, ruthless bombing of Germany on an ever-increasing scale will not only cripple her war effort … but will create conditions intolerable to the mass of the German population.” This statement was followed by a campaign of firebombing German cities. Firebombing consists of dropping large amounts of high explosives on buildings, followed by incendiary devices to ignite them, then more explosives. This creates a self-sustaining firestorm with temperatures peaking at over 1,500 degrees centigrade.

Allied bombers were ordered to attack Berlin, Leipzig, and other German cities in the east to “cause confusion in the evacuation of refugees from the east” and “hamper the movements of troops from the west.”¹⁶ The firebombing of German cities continued until 1945, culminating in an attack on the city of Dresden, a cultural center with little war-related industry. The city at the time was crowded with refugees fleeing the Red Army.

The firebombing of Dresden, which has been called “the worst single event massacre of all time,”¹⁷ killed 100,000 people, more than those killed by the atomic bomb dropped several months later on Hiroshima, and destroyed 85 percent of the city. Kurt Vonnegut Jr., who was a prisoner of war in Dresden when it was firebombed, later wrote of the horrors of the event in his book Slaughterhouse Five.

Discussion Questions

1. The bombings of German cities were justified by the British on utilitarian grounds. Discuss whether utilitarians would agree with Churchill’s line of reasoning.

2. Were the firebombings justified under the just-war theory? Support your answer.

3. In an August 9, 1945, radio speech, aired shortly after a second atomic bomb destroyed Nagasaki, President Truman stated: “If Japan does not surrender, bombs will have to be dropped on her war industries and, unfortunately, thousands of civilian lives will be lost. I urge Japanese civilians to leave industrial cities immediately, and save themselves from destruction.”¹⁸ Does warning civilians to leave cities relieve the military of moral responsibility for their deaths? Should the citizens of Dresden have been warned ahead of time? Discuss your answers in light of the just war theory.

4. What is a war crime? Should British Air Marshall Arthur Harris, inventor of area firebombing and the officer who ordered the bombing of Dresden, be tried for war crimes? Is the fact that killing civilians was not the intended purpose of the firebombing (principle of double effect) morally relevant? Support your answers.

5. Was conscription (the military draft) justified during World War II? Discuss how both Todd South and Ron Paul might each answer this question.

2. USA PATRIOT/FREEDOM ACT AND THE WAR AGAINST TERRORISM

The USA Patriot Act, an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, was passed in October 2001 following the September 11 terrorist attacks and reauthorized in 2006. In 2011 it was extended by President407Obama for another four years. It was revised and renamed the USA Freedom Act in 2015. The act permits federal agents, within certain limits, to search homes and offices, bank accounts, and medical and library records, wiretap phones, and read people’s e-mails without their permission. Shortly after the Patriot Act was passed, more than one thousand Arab and Muslim men were arrested as terrorist suspects. Many were held without being told the charges against them.

In 2003 the American Civil Liberties Union filed nine legal challenges against the Patriot Act, arguing that the act violates the Fourth Amendment of the Constitution, which permits searches only with a warrant. Supporters of the act point out that it does not make sense to warn possible terrorists that they will be subject to search and seizure. However, it is the potential for abuse that worries civil libertarians. Several colleges have protested the act, arguing that it infringes on academic freedom and privacy rights. More than 150 local governments, including at least three state governments, passed resolutions condemning the Patriot Act as an infringement on civil rights.

Discussion Questions

1. Discuss whether or not apprehending and deterring terrorists outweighs the temporary loss of rights of innocent people who are suspected of terrorism.

2. Does the Patriot Act pose a threat to our civil liberties, or does it work to protect our civil liberties? When is it appropriate for a country to override the rule of law, as explicated by Jonathan Granoff in his readings, in the name of national security? Support your answers.

3. Ben Franklin once said that those who would trade liberty for security deserve neither. Is his position realistic in today’s world? Support your answer. Discuss how Thomas Hobbes would most likely respond to Franklin’s statement.

4. In response to a question about what would happen if the United States was hit with a weapon of mass destruction that inflicted many casualties, retired General Tommy Franks replied that the Constitution and our liberty and freedoms would likely be discarded for a military form of government.¹⁹ Discuss.

3. EHREN WATADA: THE OFFICER WHO REFUSED TO BE DEPLOYED

When Ehren Watada, a first lieutenant in the United States Army, received his order in March 2006 to be deployed to Iraq, he refused to go, the first commission officer to do so. Watada maintained that the war in Iraq was illegal because it was based on incorrect information, such as the existence of weapons of mass destruction and the link between Saddam Hussein and al-Qaeda, and because the occupation of Iraq violated the Army’s own rules of conduct as well as the UN Charter and Geneva Conventions that prohibit wars of aggression. In response, the Army brought charges of “conduct unbecoming an officer and a gentleman” and of “missing movement” for his refusal to be deployed.

Watada faced the possibility of a court-marital and several years in prison. However, he was willing to face the consequences of his decisions. He stated at a press conference:

It is my duty as a commissioned officer in the United States army to speak out against grave injustices. My moral and legal obligation is to the Constitution, not to those who issue unlawful orders. I stand before you today because it is my job to serve and protect American soldiers and408innocent Iraqis who have no voice. It is my conclusion that the war in Iraq is not only morally wrong, but also a breach of American law.²⁰

Several groups, including the ACLU and Amnesty International, have come out in support of Watada. Others, including some members of the Japanese American community and Military Families Voice of Victory, who claim he is helping al-Qaeda, oppose his protest. Watada’s court-martial trial ended in a mistrial.

Discussion Questions

1. Using the criteria for civil disobedience listed on page 378, discuss whether Watada’s action is an example of civil disobedience.

2. John Rawls writes, “if justified civil disobedience seems to threaten civil concord, the responsibility falls not upon those who protest but upon those whose abuse of authority and power justifies such opposition. For to employ the coercive apparatus of the state in order to maintain manifestly unjust institutions is itself a form of illegitimate force that men in due course have a right to resist.”²¹ Discuss Rawls’s position, relating it to the Watada case.

3. The Army prosecutor in Watada’s court-martial trial argued that Watada had “abandoned his soldiers and disgraced himself and the service.”²² Given that Watada voluntarily joined the Army after the war in Iraq had begun, does he have a duty of fidelity to carry through on the commitment to the Army and his unit he made when he joined? Discuss whether Watada’s refusal to be deployed would have been different from a moral point of view if he had been conscripted into the Army.

4. During the Vietnam War, many of the young men who were drafted refused to participate in the war. While some chose to go to prison, many more left the country. Indeed, some 50,000 draft-age men moved to Canada during the Vietnam era. Discuss what you would do, and why, if the National Service Act is passed and you are drafted to fight in a war that you believe to be unjust.

4. WHEN PARENTAL DUTY CONFLICTS WITH MILITARY DUTY

The United States is one of the few countries in the world that sends soldiers who are mothers of young children into harm’s way in war. In the early 1970s, with the push for the Equal Rights Amendment and “equal career opportunities” in the military, Congress began to integrate the genders in the military. By 1980 the United States had almost 200,000 women on active military duty, the largest number in the world.²³ More than half of these women are mothers, many of them of young children.

In November 2003, Simone and Vaughn Holcomb took an emergency leave from military duty in Iraq and returned to Fort Carson, Colorado, to face a custody battle over two of their seven children, ranging in age from four to twelve years old. The children had been staying with Mr. Holcomb’s mother who was no longer able to care for them. The court mandated that one of the parents must remain in Colorado to retain custody of the children. Otherwise, the judge would rule abandonment and turn over custody of the two children to Vaughn’s former wife who was suing for custody of the children.

The Holcombs decided that Vaughn would return to Iraq and Simone would stay behind. “My children always come first,” she told a reporter. However, the Army denied her request to be409released from active duty, so she remained in Colorado without the army’s permission. Simone Holcomb said in justification of her actions, “The Army accepted our applications to be soldiers, they should appreciate our custody problems. I will fight with all my motherly might to protect my children. If both my husband and I are in Iraq together, these children could lose their parents.”²⁴ Holcomb faced dismissal plus possible jail time for her disobedience. In the end, the Army gave Mrs. Holcomb a “compassionate reassignment” to the Colorado National Guard so she could be with her children.

Discussion Questions

1. Discuss whether the judge made the morally right ruling in this case. If you had been the judge, how would you have ruled? Explain your reasoning.

2. In her book Maternal Thinking, Toward a Politics of Peace, Sara Ruddick maintains that military thinking and maternal thinking—defined as “preservation love” or keeping the child alive and healthy in an indifferent or hostile world—are set against each other. Ruddick maintains that maternal practice is a natural resource for peace politics because mothers want to prevent harm to their children. Do you agree? If so, how should this insight be incorporated into policies regarding women and mothers in the military? Support your answers.

3. Studies show that newborns and toddlers who lose or are abandoned by their mothers (as happens when a mother is deployed overseas) are much more likely to suffer emotional and mental disorders later in life and to engage in crime and drug use.²⁵ Given this, discuss how a utilitarian would feel about conscripting mothers of young children or sending mothers into active combat duty.

4. The United Nations Universal Declaration of Human Rights states: “Motherhood and childhood are entitled to special care and protection.” Discuss whether sending mothers of young children into combat duty, particularly when they would prefer not to go, is a violation of mothers’ rights and the rights of their children.

5. Elaine Donnelly of The Center for Military Readiness is opposed to the current U.S. policy of allowing women to serve near the front lines, arguing that it “violates the long-standing moral imperative that men must protect women from physical harm.”²⁶ Others oppose giving women combat duty on the grounds that women are not physically strong enough for the demands of combat. Also, female combatants who are captured by the enemy are subject to a high risk of rape. Discuss how a liberal feminist would respond to these arguments.

6. If conscription is reinstated, should mothers of dependent children be exempt? Should fathers of young children also be exempt? Support your answers.

5. PRISONERS OF WAR: TRIALS AND TORTURE

The graphic photographs from Abu Graib prison in Iraq, as well as reports from Guantanamo Bay of prisoners being tortured, raise the question of whether it is ever morally justified to torture military prisoners. The Military Commissions Act of 2006, rather than forbidding the use of torture, forbids only “grave breaches” of the Geneva Conventions. In other words, the new law allowed the use of torture—such as stress positions, half-drowning, and grotesque degradation—against “enemy combatants.” It also allowed evidence extracted by torture to be used in trials. In addition, the act authorized a new system of military courts in which prisoners of war could be410tried without being represented by a lawyer or being informed of the evidence against them, and without even being present at the trial.

Former President Bush defended the law, saying that Congress should not put restrictions on the president, as commander in chief, to do things—such as torturing enemy combatants to get vital information—that are necessary to protect national security and to effectively fight the “war on terror.” Opponents of the law, argued that legitimizing the use of torture damages U.S. policy interests because it can be used by our enemies to justify the torture of American prisoners of war. It also runs counter to our values as a free and democratic nation that is built on respect for the individual. In January 2009 President Obama banned the use of “harsh interrogations techniques,” stating that torture is not consistent with “our values and ideals.”

Discussion Questions

1. Discuss the arguments for and against the use of torture on prisoners of war. What if it is strongly suspected that a particular prisoner is a terrorist who has information about plans that may lead to the death of thousands of Americans? Discuss how both a utilitarian and a deontologist might answer this question.

2. Apply the just-war theory to the treatment of prisoners of war or enemy combatants. Does the second condition of jus in bello—“The tactics used must be a proportional response to the injury being redressed”—permit the use of torture in limited situations, such as the one described in question 1? Support your answer.

3. Discuss the potential impact of the Military Commissions Act on college students and faculty who protest the Iraq war or engage in library or Internet research on terrorism. Referring back to Case Study 4 on pages 409–410, discuss whether the University of Massachusetts student in question could be classified as an “unlawful enemy combatant” under the new definition of the term.

4. President Trump wants to bring back torture. He maintains that even if it doesn’t work, the bad guys “deserve it for what they’re doing to us.”²⁷ Does the principle of retribution justify torture in this case? Discuss how Kant would respond to this question (see Chapter 1, page 28).

6. THE ASSASSINATION OF OSAMA BIN LADEN

Assassination involves the deliberate killing or murder of a public figure for political reasons. Assassination can be carried out by a private individual, such as the assassination of President Lincoln by John Wilkes Booth, or by a government, such as the killing of terrorist leader Osama bin Laden. In May 2011 a United States special forces (SEALs) unit raided the compound of Osama bin Laden in Pakistan, killing bin Laden and four others. The Pakistani government was not told of the operation beforehand. In October of the same year, senior al-Qaeda leader Anwar al-Awlaki was assassinated in a drone attack in Yemen.

The announcement by President Obama of the killing of bin Laden was met with celebration by most Americans. The United Nations and the European Union also welcomed news of the death of bin Laden. However, others, including Amnesty International, questioned the legal and ethical ramifications of killing an unarmed man rather than taking bin Laden alive so he could be put on trial. U.S. regulations states that: “no Employee of the United States government shall engage in, or conspire to engage in, political assassination.” Government officials stated411that the mission was a kill-or-capture mission rather than an assassination mission. The assassination of American-born Anwar al-Awlaki in October 2011 raised further questions since al-Awlaki was an American citizen. While most Americans supported the assassination, the majority of people in other countries, especially predominantly Muslim countries, disapprove of the drone attacks targeting terrorist leaders.

Discussion Questions

1. Using the utilitarian calculus (see page 22), evaluate whether assassination of alleged terrorists is a morally acceptable policy. Does the fact that we secretly carried out the assassination of bin Laden and al-Awlaki in countries with which we are not at war affect your calculus and, if so, why? Discuss how Ron Paul might answer this question.

2. Obama opposes the torture or “enhanced interrogation” of prisoners at Guatantamo Bay. However, information leading to the location of bin Laden was acquired from enhanced interrogation of prisoners, including Khalid Sheikh Mohammed, alleged operational chief of al-Qaeda, under the Bush administration. Discuss whether the outcome (the apprehension of bin Laden and other terrorist leaders) justifies the means (the use of torture). Discuss also how a utilitarian and a deontologist might each.

3. The Obama administration supports the use of targeted drone attacks because they produce fewer American casualties than conventional war. Opponents counter that the use of drones for assassination, especially in countries where we are not at war, condones the use of drones by other governments to target people, possibly in the United States, that they consider a treat to threat to their security. Critically analyze the two positions.

4. Following the assassination of al-Awlaki, blogontherun.com wrote: “When the president of the United States can singlehandedly order the assassination of a U.S. citizen without charge or trial, we’re not just on the slippery slope toward dictatorship, we’re in free fall.” Discuss.

5. Under what conditions, if any, would it be morally acceptable to assassinate an American citizen in the United States if the government deemed he or she posed a threat to the general public? For example, would it have been morally acceptable for the government to have assassinated, rather than arrested and tried in a court of law, domestic terrorist Timothy McVeigh who blew up the Federal Building in Oklahoma City in 1995? Support your answers.

NOTES

1. Paul W. Williams, “The Twentieth Century and Beyond,” Vital Speeches of the Day 55, no. 20 (1989): 624.

2. Sohail H. Hashmi, “Interpreting the Islamic Ethics of War and Peace,” in The Ethics of War and Peace, ed. Terry Nardin (Princeton, NJ: Princeton University Press, 1996), 146–166.

3. Thomas Hobbes, Leviathan (New York: Cambridge University Press, 1996), 126.

4. C. A. J. Coady, “War and Terrorism,” in A Companion to Applied Ethics, ed. R. G. Frey and Christopher Heath Wellman (Oxford, UK: Blackwell, 2003), 256.

5. Dave Mosher, “About 14,525 Nuclear Weapons Exist Today in the Arsenals of These 9 Nations,” Business Insider, August 6, 2018.

6. “Israel’s Nuclear Programme,” BBC News, December 22, 2003.

412

7. See Jan Narveson, “Pacifism: A Philosophical Analysis,” Ethics 75, no. 4 (July 1965).

8. Gabriel Packard, “Hundreds of U.S. Soldiers Emerge as Conscientious Objectors,” April 15, 2003, InterPress Service, www.commondreams.org/headlines03/0415-11.htm.

9. John Keegan, “Men in Battle,” Human Nature 1, no. 6 (June 1978): 36.

10. World Health Organization, World Report on Violence and Health, 2002, www.who.int/violence_injury_prevention/violence/world_report/wrvh1/en.

11. Williams, “The Twentieth Century and Beyond,” 624.

12. Eyal Press, “The Wounds of the Drone Warrior,” New York Times Magazine, June 13, 2018.

13. Sonya Norman, Eric B. Elbogen, and Paula P. Schnurr, “Research Findings on PTSD and Violence,” National Center for PTSD, June 26, 2018, https://www.ptsd.va.gov/professional/co-occurring/research_on_ptsd_and_violence.asp.

14. Ronald Reagan, “A Coercive ‘National Service,’” Human Events, April 28, 1979, p. 19.

15. Ron Paul, “Drafting Women Means Equality in Slavery,” May 3, 2016, https://townhall.com/columnists/ronpaul/2016/05/03/drafting-women-means-equality-in-slavery-n2157453.

16. http://en.wikipedia.org/wiki/Bombing_of_Dresden_in_World_War_II.

17. www.rense.com/general19/flame.htm.

18. Public Papers of the Presidents of the United States: Harry S. Truman, Containing the Public Messages, Speeches and Statements of the President April 12 to December 31, 1945 (Washington, D.C.: U.S. Government Printing Office, 1961), 212.

19. “Perspectives,” Newsweek, December 1, 2003, p. 21.

20. “First Officer Announces Refusal to Deploy to Iraq,” June 7, 2006, Truthout.org.

21. John Rawls, “Definition and Justification of Civil Disobedience,” from Civil Disobedience in Focus, ed. Hugo Bedau (London: Routledge, 1991), 121.

22. “Mistrial Ends Watada’s Court-Martial: War Objector May Have to Be Tried Again,” Seattle Post-Intelligencer, February 7, 2007.

23. Allan Carlson, “Mothers at War: The American Way?” World Net Daily, April 11, 2003.

24. Joanne Laurier, “Colorado Woman Faces Charges by Military: Interview with U.S. Soldier Who Refused to Abandon Children and Return to Iraq,” World Socialist Website, November 7, 2003, www.ccmep.org/2003_articles/Iraq.

25. Carlson, “Mothers at War: The American Way?”

26. Joseph A. D’Agostino, “Center for Military Readiness,” Human Events 59, no. 18 (May 26, 2003): 20.

27. Adam Serwer, “Can Trump Bring Back Torture?” The Atlantic, January 26, 2017.