Jeh Charles Johnson, General Counsel of the U.S. Defense Department, made some remarks at Oxford yesterday constituting a rare recognition of the aberrant nature of the present War on Terror. “‘War’ must be regarded as a finite, extraordinary and unnatural state of affairs... In its 12th year, we must not accept the current conflict, and all that it entails, as the ‘new normal.’” He anticipated a day when, instead of an “armed conflict”, we would pursue “a counterterrorism effort against individuals who are the scattered remnants of Al Qaeda, or are parts of groups unaffiliated with Al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible”. Johnson further cited arguments that “analyzing war in terms of a continuum of armed conflict - where military force is used at various points without a distinct break between war and peace... results in an erosion of ‘any demarcation between war and peace’.” Daring to ask “how will this conflict end”, Johnson also made clear that “our enemy does not include anyone solely in the category of activist, journalist, or propagandist” (whew). Johnson’s remarks, evidently inspired by a tortured awareness that our present ‘state of 911’ is far from healthy, are nonetheless guided by an unwavering commitment to the underlying premise of the War on Terror, this “new kind of war... an unconventional war against an unconventional enemy” - the fateful premise that it is actually a war.
We called 9/11 an act of war. We played it that way, and it became a war. To think that we were at war offered some emotional satisfaction after such a terrible shock. Should we have heeded that powerful compulsion? There was another option: to consider it a crime. A crime does not offer any such easy or spectacular outlet for grief. Nonetheless, considering such an act as a crime has other conspicuous advantages.
Firstly, it gets the problem in clear focus: our job is to find out who is responsible for this act and who may have assisted them, catch them, try them, and punish them. In contrast, if we decide that we are at war, we are driven inexorably to act as though we are at war, with all that entails; the interpretation forces upon us a particular kind of response. If you assume it’s a nail, you’ll surely use your hammer; but it might be a screw. At the very least, this leads to ‘flight forward’ into costly military campaigns that distract from the original threat. Worse, this tendency towards a war response might even invite a certain kind of attack - what Herman Kahn discussed under the heading of “catalytic and anonymous war” in his 1962 book Thinking about the Unthinkable. If we decide that we are dealing with a crime, we are not bound to do anything to which evidence and good sense do not lead us. A crime does not offer scope for wild escalation into multiple (real) wars and geopolitical adventures; rather, it forces us to be patient, gather information, and build understanding, during which time we may regain our balance.
Secondly, regarding terrorism as a crime avoids giving the criminals more credit than they are due. Treating the culprits behind a mass murder as war enemies dignifies their act and lends credibility to their cause. In loudly declaring war against Bin Laden, his associates, and amorphous Muslim terrorists, we effectively conducted on their behalf a vast public relations campaign far beyond their own means, lending this fringe association such a high profile that they became a viable “franchise”. It is as though we had declared Charles Manson and his followers “enemies” of the United States, and declared war on them together with the whole California counterculture. Or consider the case of Timothy McVeigh and Terry Nichols; we would have made them heroes and set off an insurgency. Criminals should not be treated as warriors.
Thirdly, we know very well how to deal with a crime within the scope of our law and our Constitution. Attempting to deal with terrorism as a “war” has led us down a dark path of torture, imprisonment without trial, summary execution, and domestic spying on US citizens who supposedly enjoy certain inalienable rights, while fostering an ever-growing cult of secrecy and ‘state of emergency’ lawlessness. There is no geographical scope to this “war” - it is everywhere. There is no determinate opponent to be defeated in this “war” - we are fighting whoever and whatever our leaders choose to include in the boundlessly flexible “Al Qaeda” metaphor. There is no clear end to the “war” - it is over when our leaders say it is. Claims related to this “war” are rarely substantiated; in what amounts to an epistemological coup d’etat, we are expected to take the government’s word for everything, which does make the life of many a journalist easier, but makes the job of good citizens determined to monitor their government impossible. What this amounts to is an open-ended and theoretically unlimited seizure of power by the federal government. Just because this shift is not now directly perceptible to the majority of citizens does not mitigate its very real implications for the long term democratic, republican and constitutional character of our country.
Fourthly, envisioning counterterrorism efforts as a “war” gets us off barking up the wrong tree altogether. That is because fighting terrorism is nothing like fighting a war. The US military is not the primary instrument against terrorism. A declared war against a nation-state could in principle be part of a counter-terror strategy, but that is fundamentally different from conceptualizing counterterrorism itself as an unlimited global war. Fighting terrorism is more akin to fighting poverty than to fighting a nation-state. It is a struggle against a phenomenon with complex causes and no single solution. Diplomacy, intelligence, military, and law enforcement play their roles, but even more important is reflection on America’s place in the world and the consequences of its policies. Inescapably, a major cause of Middle East-related terrorist threats in particular lies in America’s peculiar relationship with Israel - indulging that country’s policy preferences to the full with financial, military, and political support - neither pressuring the country as an ally to make the concessions necessary for peace, nor distancing ourselves from the crossfire. Dealing with terrorist attacks as part of a “war” drags us deeper and deeper into Israel’s wars. Treating them as a crime avoids prejudice to our foreign policy.
There are some practical disadvantages of forsaking a “war” on terror. Our counterterrorism forces would not be able to act so freely against genuine threats. Adherence to the law would bind our hands in many cases. Yet if America and Americans were truly about surrendering freedom, rights, and principles in exchange for security, we would still be a British colony. To trade away a slice of freedom for enhanced security is an insult to all those who ever died for that freedom. It says to them, you fools may have died for our liberty and rights, but we regard these inheritances as assets to be bargained with, not sacred values. Yes, if we want to be free people in a free country, we should accept a certain possibility of death by terrorism. We all die somehow, and even in 2001 terrorism was by no means a leading cause of death, even violent death. To keep the dangers in perspective, 40,000 Americans die every year in car accidents, and we have never thought to sacrifice our non-constitutionally-protected freedom to drive.
It must also be said that considering an event such as 9/11 as a crime has a major political downside. Considering such an act as a crime presupposes an investigation - an immense, far-reaching, and public investigation. At the very least, such an investigation is likely to uncover evidence of incompetence, negligence, and failure. There may be dirty laundry that would not suffer being brought to light. But the truly frightening thing about starting a real investigation is that you don’t know where it will end. Such a prospect is anathema to decision makers - it would bind their actions to reality as it is determined through investigation, whereas a “war” circumvents all that messy fact-finding with bold assumptions, and offers immense freedom of action to pursue desired agendas, to “create new realities” for us to study, as Karl Rove put it. An investigation could find all sorts of uncomfortable things: about friends, allies, even ourselves. Even the risible “set up to fail” book report of the 9/11 Commission evidently found things too hot for mere citizens to handle, considering that a 28-page section dealing with Saudi Arabia remains classified. One only has to observe Tony Blair’s shutting down of the Serious Fraud Office’s investigation into billions of dollars in fraud connected to the Yamamah contracts with Saudi Arabia, to see how readily Western governments will sell the rule of law for the right price.
The absurd and self-defeating nature of the “war” on terrorism came to a head with the Roman spectacle known as the killing of Osama Bin Laden. If this man was as significant a terrorist player as we had been led to believe, he might well have had significant value alive. Consistent with this, treating him as a criminal would have mandated an effort to capture him. Instead, treating him as a “war enemy”, we apparently opted for shooting him in the face and dumping his body in the sea along with any intelligence he may have possessed. In the context of the preceding decade, it was a strangely appropriate denouement: no law, no logic, no evidence (even the pictures were deemed too disturbing for our fragile minds). No closure for Americans and no vindication for American democracy. As a criminal he might have faced justice; instead he got his martyrdom.