CHAPTER TWENTY-SIX
EVERY MARKET-STATE will make historic choices among the models described in Chapter 24, and perhaps among other models that are yet to be developed. These choices will do much to shape the constitution of the society of states, and it may be that, as described in Chapter 25, one model will predominate. But suppose this does not happen? Suppose these three models—or others—all seek an international order reflecting their priorities but none succeed?
The Peace of Paris suggests some common elements among the various versions of the market-state. The treaties that compose that Peace specifically refer to the necessity for market economies and for the human right to possess property as well as the requirement for parliamentary, democratic, and judicial processes. The Peace of Paris, however, does not resolve the tensions among the alternative forms of the market-state, tensions that mainly lie in the varying degrees of sovereignty retained by the people of a market-state. Instead, by ending the Long War and incorporating the agreements reached in San Francisco and at Versailles, the Peace of Paris completed the process of globalizing a certain form of the nation-state while universalizing international law—achievements that are to some degree incompatible with the market-state. Indeed, many of the international institutions of the last fifty years—the United Nations, the World Health Organization, the World Bank, the European Union, the North Atlantic Treaty Organization, the Organization on Security and Cooperation in Europe, to take but a few notable examples—will either have to be radically transformed or will decay into obstructive irrelevance. The U.N. Security Council is obviously a Long War creation: who would choose those particular five states to manage international security today? Our recent experience in Bosnia suggests that NATO might be able to make this transition while the U.N. might not, while our even more recent experience in Kosovo suggests that NATO can perhaps enable the U.N. to act effectively in the new era.* This example of the regional enabling the universal mirrors the phenomenon of the market-state in which devolution goes hand in hand with more unified markets. Perhaps neither could exist without the other: Lombardy may be too small to be economically viable while the European Union may be too large to command the cultural allegiance of Lombards. Together, these new models for state organization reinforce each other.
We will seek a new constitutional order for the society of states in order to cope with the novel challenges presented in Chapter 24. The bureaucratized nation-states struggling to satisfy the ever-escalating requirements of providing for the welfare of their aging publics are increasingly being denied their axiomatic legitimacy by those very publics. Those publics are beginning to look to transnational entities, like the multinational corporation (whose shares they hold), and subnational institutions, like particular interest groups (whose fund-raising they support), to provide for their tangible well-being. So long as the State's legitimacy is a matter of ensuring the welfare of its citizens, then the globalization and interdependence of its economy, the vulnerability and transparency of its security, and the accessibility and fragility of its cultural institutions will increasingly deny the State that legitimacy. As a result, individual states will change—they are already changing—to reacquire legitimacy by creating a new basis on which they may claim it. A change in the constitutional order of states will eventually recreate the nature of the society of states and its constitutional order.
Before we can create such a new order, however, we must establish a consensus; that is to say, before we can have a new constitution for the society of states, we must have a constitutional convention. In order to have a constitutional convention for this society there must be a congress of the kind that met at Augsburg, Westphalia, Utrecht, and Vienna. This congress need never meet; it need never produce a single document: the only necessary element it must possess that it shares with the great congresses of the past is consensus. War provided the means by which consensus was achieved in the past. Peace resolves issues that war has defined, winnowed, and presented in a way that is ripe for resolution. The great peace congresses that ended epochal wars were constitutional conventions for the society of states convened to resolve matters tried by state violence.
It is worth remembering that neither changes in the constitutional order nor innovations in strategy cause wars. Wars are fought over the usual mix of ambition and fear that has characterized state conflict from the time states began. The causes of epochal wars are no different from the causes of war generally. What marks these conflicts as “epochal” has to do not only with their duration and scope, but also with the fact that epochal war encompasses fundamental constitutional issues that must be resolved for peace to take hold. Regardless of what caused it, the epochal war has the consequence of changing the constitutional order of the states that fought; the peace conference that follows such a war marks the acceptance of a new constitutional order for the society of states.
Virtually no one, apart from a few apocalyptic millennialists, is concerned about the possibility of large-scale war at the present time. The assessment of the strategic threats facing the world that is given in the U.S.'s 1997 Quadrennial Defense Review (QDR) concluded that the international community has barely commenced a ten-year strategic lull. In late 2000, the U.S. intelligence community concluded that the risk of war among developed countries will be low through at least 2015.1 This sense of peace “as far as the eye can see” is widely shared.2 Yet there is also a sense in the QDR and elsewhere of uneasiness, a sense that the future is likely to be dangerous in new ways—even a sense that we will look back on the Cold War as a golden age.3 For the reasons given in the preceding chapters, I think this sense of foreboding is justified, and that the new ways in which the world will be threatened are exquisitely connected to the old ways in which the Long War was finally silenced. If the bombing of Hiroshima and Nagasaki was the apogee of the nation-state—for what other political entity could possibly have financed and manned such an undertaking as the Manhattan Project, let alone World Wars I and II—then that moment was also the birth of the universal vulnerability of the nation-state. If the development of high-speed computing was critically important to ending the Long War without armed conflict between the superpowers, this development has also made possible asymmetric warfare by individuals and small groups that are otherwise powerless. If the creation of the international telecommunications system crushed the pretensions of the nonparliamentary nation-states, it also made the very notion of creating a state in the image of a nation seem vain and insular. These are the new ways—the proliferation of weapons of mass destruction, asymmetric warfare by means of attacks on critical infrastructure, and the transnational environmental and epidemiological plagues of the future—in which threats will be manifested. These new ways must be added to the more conventional threats to states, which, if they have in some theatres receded, have not vanished.
But even if this sense of foreboding is not without foundation because these new tools lower the costs to an aggressor of waging war, why should we prepare for a new epochal war? What is it about our current situation that would justify such apprehensions, and if they are justified, what pre-cisely should we do about it?
The three new forms of the market-state that are currently emerging are marked by radically different views of sovereignty. The entrepreneurial market-state holds that state sovereignty is transparent: other states are entitled to pierce the veil of sovereignty if the target state has forfeited its claim to legitimacy, even by its internal acts. Managerial market-states hold, by contrast, that sovereignty can be penetrated only with the endorsement of the United Nations, or at least the ratification by a regional security organization that is itself endorsed by the U.N. Mercantile market-states hold that sovereignty is opaque and cannot be breached on the basis of a state's internal behavior.
When the United States and other entrepreneurial market-states intervene abroad, other states—with different views of sovereignty—are threatened. The use of force against an international terrorist network, for example, might involve interventions in Somalia (where there is at present no effective government), the Philippines (where the government has solicited assistance against Abu Sayyaf), Colombia (where the government is fighting terrorists unsuccessfully), or Iraq. If prolonged hostilities on a global scale result, the conflict could put in play the very bases of the constitutional order itself. This, of course, is the watermark of the epochal war.
Then why not simply renounce foreign intervention for the domestic acts of other states? What's wrong with a little modest circumspection? First, we forfeit the chance to build collaborative relationships with other peer competitors through the management of joint interventions. Second, such a renunciation saps the moral role of the State as a protector at a time when its constitutional order, that of the market-state, is particularly vulnerable to the charge of amorality. This makes the State a likelier target for civil disorder and even civil war on the basis of one of the other competing constitutional forms (including nation-state versus market-state). Third, and most important, if one group of states renounces intervention—for whatever reason—it is by no means obvious that all states will do so. China can consistently hold that sovereignty is opaque and still invade Taiwan; the same thing can be said of the Koreas and other divided states. Nor should we rely on consistency: hypocrisy is not unknown in world affairs.
The alternative to abandoning intervention as an instrument of the State is to set clearly articulated standards for intervention so that other states do not become threatened by interventions in remote regions that do not, in themselves, threaten the vital interests of anyone other than the targeted state. China must know that an intervention to rescue Hutu civilians in Burundi or to trap Al Qaeda leaders in Afghanistan is not preparation for intervention on behalf of Tibetans.
This suggests “epochal war” might come in alternative forms. It might come in the guise of a series of asymmetrical low-intensity conflicts like the war against terrorism; or it might resemble the great continent-spanning coalitional, high-intensity wars of the past; or First World peer competitors might fight a largely nonexplosive technologically sophisticated war by attempting to bring about unattributed disruption through stealth.4 I will term these three possibilities the “chronic,” the “cataclysmic,” and the “critical” respectively.
We must choose which sort of war we will fight, regardless of what are its causes, to set the terms of the peace we want. To many, such a sentence must sound like courting war. Shouldn't the avoidance of war be our objective? The avoidance of war per se, however, is not an objective; it is a policy. And I fear it is a policy that can mask the approach of cataclysmic war because it counsels against the preparations for war that might avert massive, carefully planned, large-scale attacks by one state on another, and because it actually invites low-intensity conflicts once aggressors can rest assured they can find sanctuaries where they will not be troubled by outsiders.
There is a widespread view that war is simply a pathology of the State, that healthy states will not fight wars. This view ignores the role strategy plays in the formation and continuance of states. War, like law, sustains the State by giving it the means to carry out its purposes of protection, preservation, and defense. This view that the State can be permanently separated from the historic occurrence of war also mistakes the sources of peace. Peaces, when they are constitutions, contain within them unresolved challenges to the orders they establish. Consensus does not mean stasis.
Divided nations seeking nation-states present the greatest threat to the society of states. The two Koreas, China and Taiwan, the states of the former Palestine, the states of the former Soviet Union and the former Yugoslavia, and the states of the subcontinent, India, Pakistan, and Bangladesh—all present lethally inviting venues for war that could become cataclysmic. The partition of states along national lines was the constitutional surgery of choice for the society of nation-states; reintegrating these fragments of a whole will present a formidable challenge to the society of market-states that has inherited the consequences of these diplomatic fixes. If we wish to ensure that the new states that emerge are market-states rather than chronically violent nation-states it may be that only war on a very great scale could produce the necessary consensus. We should not exclude the democracies from idealistic ambitions that could lead to conflicts on such a scale. It is often said that democracies do not attack other states. Actually, the historical record tends to support the narrower assertion that democracies do not attack each other5 (and even this assertion has been challenged).6 Such states have shown themselves quite ruthless in conflicts with states that are nondemocratic or against groups that were perceived as threatening the stability of the democratic state.7Cataclysmic war is a real possibility in Asia. India, Russia, and China all face nationalist challenges to the development of a market-state. Each could provide the theatre for war. China possesses a potential for civil war that is the product of the attraction and repulsion the market-state holds for Chinese society. For this reason a weak and unstable China is far more dangerous than a strong China. Russia is experiencing a Weimar situation at least as painful as anything Germany endured. What other state today combines a nuclear arsenal with surging mortality and plunging fertility tables? Both Russia and China—because of their weakness—find themselves intertwined with criminal conspiracies that could lead to external conflict. China has been an unacknowledged partner of the East Asian sea pirate networks; in Russia, there is “such extraordinary interpenetration of the intelligence services, organized crime, and business that it is very difficult to tell with whom one is dealing in almost any circumstance.”8 These criminal involvements pose two potential problems: first, they may launch irritating, sometimes deadly, probes to which other states may react with violence and the intent to pierce Russian or Chinese sovereignty. Second, the involvement of criminal conspiracies raises the possibility of theft from their respective military industrial complexes, including fissionable material, biological weapons, guidance systems, and other deadly exports. Like Russia and China, India is a nuclear power—though a modest one—with a high potential for dissolution, and thus a domestic appetite for international adventure. In any of these countries, the outbreak of civil war could be succeeded by predation on neighbors. Great powers that sat by during the first phase of conflict might be drawn into the second.
There is no certainty, however, that even a pluralism of constitutional forms of the market-state can exist without violence. The three versions of the nation-state that competed in the Long War had to externalize to make themselves secure at home. Parliamentarianism, fascism, and communism in every state rose and fell with their fortunes abroad. By contrast, the three versions of the market-state have to be internalized to become secure abroad. The entrepreneurial, mercantile, and managerial alternatives will rise—or fall—in popularity depending on the success and cohesion each is able to achieve domestically. Inevitably this will mean a rise in domestic coercion in some states. When this happens, threatened local groups will call on their allies in states abroad. Then, as before, law and strategy, the inner and the outer faces of the State, will be united. Civil disobedience and civil strife will become more widespread, and more threatening. This could mean a silent war, fought with largely covert means because overt conflict is too risky and too discrediting. Such a war would be fought principally with defensive weapons—redundancy, deception, missile defenses, information, and ever-advancing technology, including genomics—against undefined adversaries supported by rival states.
A third kind of war whose duration and consequences might prove epochal is an endless, low-intensity conflict with some states and nonstate groups whose plights are the consequence of an evolving pluralist society of market-states. It is obvious, I suppose, that some of these groups are drawn from those who oppose the emergence of the market-state in the first place: states that have been destroyed by globalization and cultural groups that are threatened by universal communications and migration. It is perhaps less obvious that there are other groups spawned by this development that actually thrive in the new environment but that are no less dangerous—criminal conspiracies, anarchic movements, transnational and subnational terrorists of many varying motivations. Finally, it is least obvious that the society of market-states is the target of national groups that are still in thrall to the romance of the nation-state: French Canadians in Quebec; Kurds in Turkey, Iraq, and Iran; Sikhs in the Punjab; Basques and Catalans in Spain; Indians in the Central American states, and others. One would imagine that the society of market-states, with its many varying territorial forms, would make a diffuse target for such unfashionable and passionate dreams. For the society of market-states there is no essential difference between umbrella states like the European Union or the Asian Pacific Economic Council, and leagues of great scope (like NAFTA) or small compass (like Italy's Northern League) or even nonterritorial entities like CNN, the Shell Oil Group, the Medellin Cartel, or Hamas. But this agnosticism does not make it any easier to satisfy the ambitions of irredentist nationalities: the drive of stranded nations like the Kurds for a state makes them hard to bribe, in the economic sense of that term, because they have a single, nonnegotiable demand that, by the nature of the new society of states, it is very difficult for them to achieve. Unlike Wilson and House, the leaders of market-states do not create nation-states. Yet the indifference of the market-states to such demands can provoke efforts to get their attention.
If we wish to avoid cataclysmic war and invisible, silent war, we shall have to learn how to wage wars like the ones in Yugoslavia and Afghanistan, using the tactics of relentless airstrikes, special forces teams, and indigenous allies. This means, pre-eminently, that we shall have to develop rules for intervention.9 Out of this new epochal conflict can come, some day, the consensus that will provide the basis for a constitution for the society of the new form of the state.
In the meantime, we shall have to reorient our concerns to cope with the changes brought about by the emergence of the market-states. Let me give seven examples of this reorientation, the fifth of which (critical infrastructure) I will discuss in somewhat greater detail. In each of these cases the difficulty arises along the seam between the nation-state and the market-state. The nation-state is oblivious to these issues because it treats them from a perspective that is indifferent to the externalities they impose on other states. What does it matter, for example, if the state of Colombia is ruined by U.S. drug consumption; that is, after all, Colombia's affair. The U.S. is doing everything in its power to stop such consumption—except, of course, compromising on our deeply held value that the state should protect its citizens from toxic substances.
At the same time, each of these cases is an example of market failure: that is, the market acting alone in the absence of state regulation is indifferent to these issues. What does it matter to the market, for example, whether there are international rules for access to technology? If an economic profit can be made by sales of high-speed computers to Iran, or missile parts to Iraq, or fissile material to North Korea, that is surely all that is of interest to the market.
(1)
The role of the news media has changed, constitutionally speaking, in the last three periods of the state.10 In the era of the state-nation the constitutional role of the press was foremost to transmit the political leadership's views. This often amounted to functioning as an organ to shape public opinion. Napoleon's bulletins provide a good example.* So do the Federalist Papers, first published as essentially op-ed pieces, and the journalism that powered the French Revolution. In the nation-state period, to this role was added the function of informing leaders about the public reaction as the public spoke back to government through the media. William Randolph Hearst's famous remark (“You provide the pictures, I'll provide the war”) showed a shrewd appreciation of this. The pivotal role played by the New York Times in opposing the War in Viet Nam that it had so heartily supported and the Washington Post's crucial exposure of Watergate felonies both showed the press not only leading the public but also constantly reporting trends in public opinion on the same issues. Editorial opinion and its counterparts in the electronic media eventually stood for public opinion. When the CBS anchorman Walter Cronkite turned against the Viet Nam War, President Johnson is reported to have concluded that his war policies no longer had the confidence of the public.11
In the market-state, the media have begun to act in direct competition with the government of the day. The media are well situated to succeed in this competition because they are trained to work in the marketplace, are more nimble than bureaucrats hampered by procedural rules, are quick to spot public trends, can call on huge capitalizations, can rely on sophisticated managers and technocrats, and are the most capable users—far outpacing politicians—of the contemporary techniques of advertising and public relations. Finally the media, protected in many countries by statutes and constitutional amendments, are free of many of the legal and political restraints that bind government officials.
The changing role of the media as it enters the era of the market-state is felt in many quarters. David Anderson, a law professor and former journal-iist, has observed that the constitutional protections surrounding libel defendants have been transformed from protection for the lonely, vilified civil libertarian to an insurance policy for media multinationals.12 To take another example, one aspect of President Clinton's difficulties in persuading the public that the campaign of vilification directed against him came from a “right-wing conspiracy” is that some of its most avid adherents were liberal journalists. They were not conspirators—at least not of the right-wing variety—so much as soldiers in an historic struggle to wrest power from the presidency, and to gain even greater control over the electoral process than the media now enjoys.
Indeed the competitive, critical function of the media in the market-state is similar to that of the political parties of the Left in the nation-state: the Left was always a critical organ in government, reproving, harassing, questioning the status quo; it sought a governing role even though whenever Left parties held office, they quickly moved to the center, co-opting (or being co-opted by) the Right. Now with the discrediting of the Left in the market-state, this competitive critical function has been taken up by the media.*
The media are completely untrained in this task—ethically or politically. Much the same can be said for the leadership of the great multinational corporations (of whom the media empires form a subset). Nor can these institutions expect much guidance from the political class that has so enslaved itself to the market via its reliance on campaign contributions.
Relations between the media and the other organs of government are further exacerbated by the fact that in the market-state the public's attitude toward what can be accomplished by government changes (and thus also changes with respect to the scope of personal responsibility). Now it is up to the individual to avoid problems, not up to the state to fix them. If there are unsafe areas of town, the citizen is best advised not to go there, rather than expect the police to ensure a safe environment. If a person becomes a politician or seeks fame, he will get little sympathy if he is badly treated thereafter: he sought the role, and therefore he bought into a bargain that includes loss of privacy, jeopardy to reputation, loss of earnings. The market is inherently unpredictable, so persons become more fatalistic; the nation-state, based on the operations of law rather than the market, gave a sense, perhaps illusory, that expectations would be fulfilled through policy.
In the transition, the nation-state will appear to be doing even worse than it is. Popular appreciation will plummet because the public has been persuaded that the government cannot accomplish anything positive of note. This is partly due to the switch in roles by the media, which retain the credibility of reportage but now also have the mission of opposition. Business activities—and the activities of business leaders—are replacing politics as the central source of news about the welfare of the people.
Absent the threat of war, it is very difficult to believe that the publics will be eager to follow the urgings of their political leaderships to make the sacrifices that states often require. This development will strain the political structures of the great powers to their utmost, making them vulnerable to delegitimation in a crisis. Political leaders may find they are able to inspire a sense of mission only through the shrewd manipulation of the media, a short-lived tactic that ultimately must invite contempt. At the same time, some sectors of the public will become more credulous, more willing to believe preposterous stories about government cover-ups.
(2)
At present when we consider environmental threats to the collectivity of mankind, we have tended to concentrate our concerns on cumulative threats like global warming and the destruction of the ozone layer. When we think about environmental events that threaten a single state, we focus on oil spills, desertification, and deforestation. We have neglected events relating to the environment that bring about conflict among the members of the society of states. Crises like those provoked by the meltdown of a nuclear reactor, the incubation of an infectious disease, the migration of industrial pollutants or water-table contaminants, genetic interventions with unanticipated consequences all will put stress on an international system that is steadily divesting itself of legitimate universal legal institutions, even as it is creating new global economic ones. During much of the period in which the particulate ash and smoke from the fires in northern Mexico blanketed Texas in 1998, Mexico refused U.S. assistance in putting the fires out. When a Russian submarine with a nuclear reactor aboard was crippled in 2000, Russia similarly refused assistance until it was too late to rescue its crew. The president of South Africa once took the view that AIDS was not related to HIV and could have, had he persisted, greatly worsened a transnational epidemic. These incidents may be harbingers of the sorts of environmental problems that can easily lead to conflict.
Nation-states tend to treat epidemiological matters in nonsecurity terms. Air travelers, for example, are routinely screened for carrying weapons across national borders; they are seldom required to demonstrate that they are free of lethal communicable infections. By viewing such matters as international security issues, the market-state sets the stage for strategic conflict over their resolution.
(3)
Nation-states continue to think in terms of maintaining control of conventional agricultural and industrial raw materials (like food and oil) by encompassing them within their territories, neglecting to put in place rules of behavior that will govern the distribution of goods like water and technology when these are at least as likely to be the source of interstate conflict in the future. Hitherto restrictions on technology transfers—like those governing the export of high-speed computers that can be used in missile telemetry—arose from state conflicts like the Cold War. In the future such restrictions may themselves be the cause of conflict.
(4)
Nation-states tend to treat crime and corruption in terms of the laws of a single state, using suppression to its fullest effect. This overlooks the destructive economic and political effects in other societies of the markets in illegal enterprises created by such national suppression. The inadvertent consequences of the United States's attempted suppression of cocaine consumption has perhaps done more harm to the polities of many Third World governments than meddling and intervention ever did.
(5)
The next example of the historic juxtaposition of these two archetypal forms of the State is potentially the most disturbing. This is the set of issues that is becoming known as the problem of “critical infrastructure.” A society's critical infrastructure is composed of those elements— telecommunications, energy, banking and finance, transportation, government services—that undergird modern life such that their extended interdiction would have consequences for the sustainability of that way of life. Historically, these elements were confined to national territories. Moreover, these individual elements of the infrastructure were physically and conceptually separate systems that had little interdependence. Generation of electricity by the local power company did not depend, in any immediate way, on the operations of the local phone company or the local bank; the German phone company did not depend on the British phone system, nor did the Japanese banking system depend on the day-to-day operations of the Italian banking system. Beginning in the mid-eighties, however, the interplay among a number of factors created a new largely intangible infrastructure, the international superinfrastructure, that is critically essential to, yet also critically dependent upon, each of the traditionally recognized infrastructures. The factors bringing about the emergence of this superinfrastructure include the many developments in information and communications technology, but also, crucially, a change in attitude among the most highly developed members of the society of states about the role of government and the market. This change in values within many states—which is encapsulated by the claim that we are moving from the era of the nation-state to that of the market-state—has had two effects that are relevant to this problem. First, it has vastly enhanced the vulnerability of the critical infrastructure of states because the reshaping of the various sectors mentioned above (banking, energy, and so on) has taken the path of greater efficiency rather than greater national security. Deregulation and greater competition have meant that there are now more competing operators with access to critical systems, and that operators are no longer monopolists with annual profits guaranteed by the State with which they can be relied upon to cooperate in matters of national interest. The new players have a different attitude toward their responsibilities to the society in which they operate.
Second, each government's role in protecting its state'S infrastructure has become bewilderingly complex, even paralyzing. Two facts are sufficient to make it so: most of the critical infrastructure for the most developed state is in the hands of the private sector, which thus controls the information on which any attempts to ensure security depend; and the origin of attacks on these infrastructures can be made impossible to trace, so that traditional strategies of deterrence and retaliation become irrelevant. It may or it may not be in the interests of Lloyds Bank to disclose to government authorities that a successful intrusion into its accounts had been made by a cyberattack that has cracked its security codes via the Internet, but even if a national government learned of such an attack, which ministry has jurisdiction? Should the intrusion be treated as a domestic crime? As a foreign attack? And if a foreign attack, is it by a state or a criminal conspiracy or some subnational group? Or is the entire affair the work of a disgruntled employee or simply a glitch in the software? Who has the authority to answer these questions, bearing in mind that the costs to the society of an unreported attack will almost always be greater than the costs borne by the private enterprise that suffers the initial loss, but that the private enterprise can be global while the exclusive jurisdiction of the State is, by definition, territorially limited.
The core elements of the international superinfrastructure are the telecommunications networks—which include the landline networks of long-distance telephone carriers, cellular networks, and satellite services—and the collection of information technologies that in the year 2000 was composed of 400 million computers worldwide—about 50 percent of which were in the United States, Germany having 7 percent, China 1 percent—and the Internet, a global network interconnected by means of routers that use a common set of protocols to provide communication among users then numbering about 32 million devices, and expected by 2002 to encompass about 300 million worldwide. Taken together, these three networks (telecommunications, computer, and Internet) supported over 200 million hours of connectivity every business day in 2000. The telecommunications networks are crucial for virtually all aspects of the infrastructures of most states, including their defense operations. In 2001 more than 95 percent of all internal communications by the U.S. Department of Defense went by means of the public switched network. Moreover, the pace of this increasing dependence was quickening.
So long as the nation-state dominated public affairs, it was inconceivable that states would willingly lose control of their national telecommunication industries. If it had been proposed in 1945 that the U.S. Bell System should be dismantled, objections on grounds of national security and law enforcement would almost certainly have trumped efficiency concerns. Today, the desire to bring better service at a lower cost to consumers has made the security and law arguments sound antiquated. In fact the distinctions between local and long distance and between wireline and wireless service providers are beginning to disappear. All aspects of the public switched telephone network have now been opened to competition. In the traditionally monopolistic local markets, local exchange carriers have been required to allow alternative access providers to interconnect to them. The U.S. Telecommunications Act of 1996 cleared the way for cable television operators to offer telephone and other services over their cable systems. As the structure of the industry changes, fewer services will be delivered wholly by a single provider; more often services will involve interconnection and interworking among several providers, which will inevitably mean greater reliance on what I have called the superinfrastructure. As in banking, the industry will consolidate. The Pacific Telesis – SBC and NYNEX – Bell Atlantic mergers in 2000 reflected this trend. Indeed future mergers will be international in scope, such as was presaged by British Telecom's attempted takeover of the MCI network. Thus we will see a more diverse and decentralized system that is, at the same time, far more dependent on a smaller number of electronic gateways.
Banking and finance, after having remained essentially unchanged since the Second World War, are being revolutionized through access to the superinfrastructure, interacting with a political environment that has radically changed regulatory policy. Until the 1980s, the financial services infrastructure of most countries was primarily the product of states that prohibited these institutions from entering specific lines of business, limited the ownership of various types of firms, and prevented banks from operating on an international or even national level. In some states, such as Japan and Germany, many of these constraints were still largely in force at the century's end. Once deregulation occurs, however, financial institutions need advanced telecommunications to remain competitive in the new environment. In the twenty-first century, the infrastructure of national banking and financial services will become heavily dependent on computer-controlled systems and the telecommunications systems that link them together to move instruments of value through the economy. Payment systems, perhaps the most crucial sector in banking and financial operations, rely on a small number of networked information systems to track, finalize, and account for transactions. Practically all communications in the industry use leased terrestrial circuits; and it is anticipated that the trading markets, electronic funds transfer, and other financial functions will migrate to shared networks like the Internet that are more cost-effective. The use of electronic cash is quickly increasing, with a significant impact on the volume and value of transactions flowing through electronic funds. Visa and Mastercard are international systems of banking and debit that would be impossible without this electronic linkage. In the five years from 1990 to 1995 the use of cash in all transactions decreased 5 percent, and this trend is accelerating. The number of banks is expected to continue to decline. Many financial institutions are outsourcing activities, allowing them to focus on core business functions and reduce overhead. The result of this, however, is to concentrate back-office financial functions in a handful of third-party providers connected by the superinfrastructure, so that disruption of one major outsource would affect multiple companies.
Similarly, for nearly sixty years the electric power industry reflected a well-defined pattern of mutually exclusive regulated monopolies, each serving customers in its discrete area. Utilities in the United States and Britain now must unbundle generation, transmission, and other services, enabling rivals to lease lines to send power to their customers. Companies must post data on transmission availability and rates on the Internet. Moreover, in the past, steam-driven generators were the norm, whether relying on coal or nuclear fuel. Now aero-derivative gas turbines make power more cheaply, use less fuel, and are cleaner. With the new technology, power companies can achieve comparable output with plants one-tenth the size. This means that new, smaller companies can enter the market, increasing competition and penalizing older utilities with high sunk costs in outmoded plant and equipment. Today, telecommunications networks hook up to the giant Interconnects that are the islands of the electrical power infrastructure for the developed world. Electrical power generation, transmission, and distribution are largely controlled by a multitude of automated systems that monitor, report on, and in part control the flow of energy throughout these systems. Yet as more players enter the field, the SCADA—supervisory control and data acquisition—systems that manage the flow of energy are becoming more numerous. These standardized, automated systems are linked to control centers that are linked in turn to management systems responding to the increasingly competitive business environment. Thus we have the paradox of more access to competition, meaning more competitors, and yet more centralization and dependence upon the superinfrastructure.
The pipelines that carry oil and gas, like the energy transmission lines, also are controlled by SCADA systems that rely on standardized, automated mechanisms as a way of meeting the pressures of intensified competition. These systems controlled in 2000 much of the 22,000 miles of oil pipelines and 1.2 million miles of gas pipelines, regulating the flow of oil and gas through an array of pumps, vents, valves, and storage facilities throughout the pipeline system. Here as elsewhere, the efforts toward standardization and establishment of common protocols are driven by the high cost of maintaining multiple kinds of protocols, computer hardware, and software. Many infrastructure entities look to the day when virtually all of their operations will run on networks of large computers using standard communications software throughout.
The difficulty posed by these infrastructure developments is that a cyberattack on that structure can now be launched from anywhere on the globe and can have an impact that is compounded by the interconnectivity among essential elements of the infrastructure. The rapid dependence on information that is sweeping the infrastructure is accompanied by a mutual dependency among, and a dramatic lessening of the number of, critical nodes as well as a general standardization. These developments are largely responsible for the increase in wealth that has been brought about by the new deployment of information; unavoidably they have created a situation of very high risk should that information be tampered with or interdicted. The use of information technology has grown from an option to enhance efficiency to a necessity that many parts of the infrastructure require to function.
The critical superinfrastructure provides the link between the processes of quite different organizations and thus, if compromised, has the ability to create a cascading effect, multiplying destruction exponentially. Thus, for example, a national outage of the U.S. public switched network (PSN) would not only bring almost all local service and all long-distance telephone service in North America to a halt; it would also disrupt Internet communications and cut off essential services such as air traffic control, banking and financial transactions, and even the emergency response to deal with the crisis caused by this outage.
Who would mount such an attack? Unlike conventional warfare, this type of operation would offer little strategic warning and few indications of an imminent assault. Physical attacks would be carried out by small, highly mobile units, while individuals equipped with laptop computers could launch attacks from any point on the global network. This form of warfare would be inexpensive, putting it within reach of most groups and most states. As in the world economy, the greatest asset in this conflict would be information: in this case, the information necessary to turn information technology against itself.
Where would such an attack on the critical superinfrastructure come from? It might be the result of a natural disaster, like an earthquake or flood, or of a simple accident at a critical node owing to design flaws, installation errors, or inadequate operation. Or it might be caused by an intentional act of terrorism, like the attacks on the World Trade Center that targeted both the American air traffic network and its financial services industry. The most insidious and conceivably the most damaging threat to cyber systems, however, is a cyber threat. Such threats are new, the product of the information age that gave rise to the superinfrastructure in the first place.
Cyber threats might arise from malicious insiders, from terrorists or military opponents, or organized crime, from hackers or competing industrial firms, or from the national intelligence or defense agencies of other countries.13 National intelligence agencies may wish to siphon off data or even to insert disinformation. In a 1990s incident, organized crime electronically robbed Citibank of $10 million through its branch office in St. Petersburg, Russia; it would be idle to suppose that criminal conspiracies will not explore the possibilities of falsifying criminal records, accounts, and other data stored electronically. Hackers are often students who penetrate government and private systems for the sheer thrill of beating the system. In an era of deep suspicion of the motives of governments and large corporations, the number of such persons will surely increase as the number of persons with computer expertise and experience increases.14 Insiders pose the most dangerous threat because they have detailed knowledge of the systems they attack and ready access to the target's own resources.
Even while economic competition is driving globalization and the centralization of risks that amounts to placing very heavy bets on a few roulette numbers, this same competition provides a strong disincentive to actions in the private sector to ensure information security. Steps that are sufficient from an economic point of view are not necessarily reasonable from the viewpoint of national security and emergency preparedness, but greater measures are more costly, and therefore competitively penalize the company that undertakes them.
Nor is it yet entirely clear what government should do. There are no unified bodies of law devoted to critical infrastructure. Rather there are elaborate fiefdoms of regulation that have evolved in separate sectors seeking to ensure service, public safety, and competition. The government needs private partners to undertake the task of protecting the information superinfrastructure, yet these are the same corporations that are often reluctant even to report break-ins or breakdowns in their operations and who are very distrustful of joint operations with the government.
At bottom, this is a national security problem, but it is also a problem for international security, because the infrastructure we must protect is increasingly international. This fact is a by-product of a much desired goal of the market-state, the creation of a world economy. If states seek to expand the opportunities for every individual, then this will necessarily lead to a globalization of the infrastructure. If a market-state attempted to interfere with this development in order to protect the national security—that is, the security of the national critical infrastructure—it would inevitably sacrifice the expansion of opportunity that is its purpose and thus the reason for which it claimed that it is important to keep the State secure in the first place.
The potency of particular threats to the State changes with each era. A modern army could be quickly suffocated if its logistical umbilical cord were severed by infrastructure attacks, while the mercenaries of the Thirty Years' War, who lived mainly by foraging, could have continued functioning. The reliance of modern armies on telecommunications and electronic computation* has created new and more valuable targets for cyberattack and weapons of mass destruction.
Yet the problem of attacks on critical infrastructure is in large part a private sector problem. If we bring to bear on this problem the strategic habits of the Long War—of the nation-state, that is—we may actually sacrifice the tort liability and corporate responsibility necessary for innovative insurance and improved security practices that would arise from the private sector responding to economic disincentives. If states (in a nation-state mentality) were to try to impose regulatory solutions, these might well be ineffective in any case: there will never be sufficient time or resources to write legal rules ahead of the imaginative cyber designer. Only experienced managers in the sectors themselves, acting daily and learning constantly, can stay ahead of this threat; regulations will always come too late.
These two aspects of the critical infrastructure problem—its private and international dimensions—are unwelcome to most states: internationalizing national security is only a little more distasteful than privatizing it. But there are really very few practical alternatives. Most of us are unlikely to be attackers in this new era, but we will probably all be defenders at one time or another. Cyber threats, in themselves, are poorly analogized to the wars of the past, which depended on violence for their essential character. Rather cyber threats are more like epidemiological threats, in which our ultimate security will lie in the good sense of private persons in many countries, cooperating through a central clearinghouse but assessing their own health and taking the appropriate measures to maintain it. To continue the metaphor, the U.S. Centers for Disease Control (CDC) and Prevention, not the Pentagon, is the model the market-state should pursue in addressing this problem.
Nevertheless, the defense planners of many developed states have an important role to play. Their first step must be to free themselves from the habits they acquired planning for nuclear strategy (just as nuclear strategy fifty years ago required that they free themselves from the habits inculcated by theories of conventional bombing). We must learn to think in terms of vulnerabilities instead of threats; of mitigation instead of fortress defense; of reconstitution instead of retaliation. These changes in our ways of thinking are as crucial to dealing with the problem of critical infrastructure protection as are the technological aspects of the problem.
Vulnerability-based strategies against chemical/biological, nuclear, or cyberattacks will depend upon heterogeneity (the use of multiple means of protection and communication), reassessment (the use of dynamic systems that reallocate resources automatically), redundancy (which depends upon excess information), resilience (which depends upon excess capacity), integrity (which depends upon strong encryption), decentralization (which enables the use of quarantines of both persons and networks), and deception. None of these concepts are new to military planners, but they have to be applied in new, defensive modalities. Our current planning— which depends entirely on detecting a computer intrusion, monitoring it, and tracking down the attacker—is hopelessly ill-suited to our situation. Such retaliatory strategies surrender initiative and permit the aggressor to soak up our resources with little more cost to him than the press of a key. Yet 90 percent of the proposed U.S. 2000 budget in this arena was earmarked for intrusion detection and prevention. The developed market-states should be spending their resources on technologies that make the critical infrastructure more slippery, more difficult to damage, more quickly reconstituted, and, above all, more deceptive.
An historical analogy may also provide some help. At the beginning of the twentieth century, many industrial societies experienced unprecedented migration from rural to urban areas. In America this was augmented by large-scale immigration from Europe. One result was the construction of vast tracts of substandard housing in densely populated city areas. At about the same time the first modern housing codes were promulgated. These set minimal standards for building construction and emergency access. But the real work of protecting cities from fires was done by private insurance companies that required compliance with these codes as a condition for insurance (which was itself a condition for mortgage financing). The increased vulnerability of critical infrastructure has been brought about by the same volcanic economic growth that the United States experienced early in the twentieth century. This vulnerability is also driven partly by consumer demand and partly by the familiar problem of single-actor transaction costs (which tend to jeopardize an entire neighborhood, for example, because the cost to any one actor of a fire does not justify the expense of organizing protection for all). Some similar sort of information security requirement for private insurance can also be useful in addressing the problem of critical infrastructure. Using the market in this way—because insurance is a globalized service—can internationalize a solution far more effectively (and more quickly) than a network of international treaties.
As with environmental threats imposed by a single irresponsible state on all others, it is highly possible that a state linked by the Internet to all other states might threaten, however inadvertently, the critical infrastructure of the entire developed world. And as with global environmental threats, rules for timely intervention are needed. In their absence, we run the risk of introducing some of the classic and familiar causes of war that, when played across the dimension of constitutional change, make the strategic innovation of a cybernated infrastructure attack the kind of tinderbox that could ignite a war in the twenty-first century.
(6)
Owing to the development of public health measures, inoculations and vaccines, and modern antibiotics the ancient practice of quarantine largely vanished from twentieth-century developed states. This coincided with the emergence in the United States of omnicompetent nation-state governments that replaced the more limited domestic authorities of the state-nation. Thus even though potential federal authority of the States expanded, with respect to quarantine, this authority lay fallow. Today we have the paradoxical situation that a threat to the entire nation by means of infectious agents in a terrorist war against the United States would confront a patchwork of state laws, only a few of which have been updated to apply to all diseases. The federal government is, statutorily, largely out of the picture and the state laws are often antiquated. Many state laws require judicial approval in order to enforce a quarantine. Other state laws restrict the authority of public health officials to share information about an individual's health status. Some states forbid the sharing of information among state agencies or even for one state to inform another state of a health emergency. In October 2001 the CDC released a model state Emergency Health Powers Act. This statute is designed to give officials the power to act decisively in the event of a biological attack or the outbreak of an infectious epidemic.
Under this statute, public health officials could compel a person to submit to a physical exam or a test without a court order. Physicians and other health workers could be forced to do this testing. While court orders would be required for quarantines officials could quarantine first and go to court afterward. Officials could compel persons to be vaccinated or treated for infectious diseases. States would have broad emergency powers to confiscate property and facilities, including subways, hospitals, and drug companies.
This statute implicates a number of significant constitutional issues: (I) Should the federal government, rather than the states, be empowered as the effective public health actor in such a crisis? Currently federal authority relies on the Stafford Act, which is far too narrow and restrictive to help in such an emergency; if, however, state and federal authorities are not clarified, we could face the prospect of paralysis or even intergovernmental violence. (2) Does the federal government have the constitutional power, in light of recent Supreme Court cases, to adopt legislation similar to that in the proposed model act? The federal government does have ample emergency powers in war and it may be that a terrorist attack could engage those authorities. But it might also be that an outbreak of an infectious epidemic will occur without the disclosure of its origin. Other federal consti-tutional powers, such as the commerce power, that might serve as the basis for federal action have been sharply restricted by recent caselaw as the United States moves toward market-state constitutional rules. (3) How might the civil liberties of Americans be safeguarded in such a statute, state or federal? Questions such as the limits of public health surveillance, the requirement of mandatory disease reporting, confidentiality, compul-ssory vaccination, testing and screening, isolation and quarantine, compulsory physical examination—all these issues implicate the Constitution's guarantee of due process and its commitment to personal and physical autonomy. Other questions might arise regarding the guarantee of equal protection. For example, in the early 1900s, San Francisco imposed a quarantine to halt a tuberculosis epidemic, but applied the quarantine only to Chinese Americans. In the 1980s HIV-infected students were often barred from public schools and several states passed laws allowing AIDS patients to be quarantined.
The potential twenty-first century conflict posed by this problem is one of civil war.
(7)
The revolution in military affairs that won the Long War is currently bringing us the market-state. The emergence of this new form of the constitutional order will be accompanied by new forms of warfare. In these final paragraphs I should like to speculate about these new forms. In other words, if the current revolution in military affairs, taken in a broader sense than simply the latest technology, is a consequence of the threefold phenomenon of nuclear and other weapons of mass destruction, international telecommunications, and the power of rapid computation, and if the market-state is the constitutional consequence of this revolution in military affairs, what is the next revolution in military affairs that is a consequence of the market-state? I venture the guess that it will be a result of advances in biogenetics and that this development will challenge the meritocracy on which the market-state depends.
Thus the knowledge and techniques that will make biological super-weapons available to the market-state and its adversaries may ultimately bring about the new form that will supersede that state. First, the dispersal of these techniques to market actors—corporations that run hospitals, pharmaceutical labs, vast agribusinesses, and the like—will inevitably have the consequence of proliferating actual weapons to those who wish to destroy the market-state. Second, the open society on which the market-state depends and which it does so much to foster will find it more difficult than the nation-state to assert legal control over biogenetic knowledge and weaponizing. The public will call for measures that are highly intrusive and oppressive, and these too will undermine the ethos of the market-state. Third, the fundamental idea of the market-state—that equality means treating those equally endowed in an equal way*—will be shattered when the means of altering our natural endowment of intelligence, beauty, emotional stability, physical strength and grace, even sociability, is available at a price. The market-state will have to decide how to distribute such benefits, having thrown away the basis on which it was created to make such decisions, namely, the cultivation of natural merit. And this development creates a fertile environment for violent civil conflict.